Treaty Law

Tuckiar v R [1934] HCA 49

Tuckiar was charged and subsequently convicted of the murder of McColl, a member of a police party that was conducting inquiries about some deaths on the island in northern Australia where he lived. Soon after arriving, the police party discovered a ‘deserted native camp’ and a group of Aboriginal women, whom they handcuffed and questioned. Unbeknown to the police, three of the women were married to Tuckiar. Later, some of the officers left the camp, and when they returned, McColl and the women were missing. The following day, McColl’s body was found with a spear wound in his chest. The Crown’s evidence against Tuckiar was given by an Aboriginal witness, Parriner, and a ‘mission boy’, Harry. There were a number of differences between the men’s evidence, including Harry’s claim that Tuckiar told him that he had seen McColl having sex with a ‘lubra’. Throughout the trial, the judge and the lawyers were so determined to protect McColl’s reputation from Harry’s allegation that their actions caused a miscarriage of justice. However, the case also demonstrates the pervasiveness of stereotypes about Indigenous women in Australian law. Not one member of the High Court commented on the racism behind the belief that McColl’s reputation had been slighted by the allegation that he had sexual relations with an Aboriginal woman. Likewise, no one questioned why the Aboriginal woman who was the subject of the allegation was never called to give evidence.

Commentary author

Thalia Anthony is a Senior Lecturer in the Faculty of Law at the University of Technology, Sydney. Her research interests lie in the area of Indigenous people and the law, especially in relation to the criminal justice system.

Judgment author

Nicole Watson is a member of the Birri-Gubba People and the Yugambeh language group and is a Senior Researcher at the Jumbunna Indigenous House of Learning, at the University of Technology, Sydney. Nicole was admitted as a solicitor of the Supreme Court of Queensland in 1999. Previously she worked for the National Native Title Tribunal. She recently published her first novel.