Walden v Hensler [1987] HCA 54

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Walden v Hensler [1987] HCA 54

ORDER Appeal allowed in part. Judgment of the Full Court of the Supreme Court of Queensland delivered on 2 May 1986 set aside and in lieu thereof order as follows:Order to review made absolute.Quash the conviction and order of the Magistrates Court at Mt Isa made on 15 August 1985 and in lieu thereof order pursuant to s. 657A of The Criminal Code that the appellant be discharged absolutely and order that the appellant pay court costs of $30.50 within thirty days and that that amount be recoverable by execution against his goods and chattels. No order as to costs in this Court or in the Full Court of the Supreme Court of Queensland.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 6 Brennan J.

The appellant is an elder of the Gungalida people who belong to the country around Burketown and Doomadgee in Queensland. Historically, they and other Aboriginal people were nomads, living off the land. White settlement came. The appellant's father did some work for a Mr. Walden who owned a station in the area. Mr. Walden gave the appellant's father rations of tea, sugar and flour for his family. He gave them too the name of Walden. When the rations cut out, the family would eat what was on the land. According to the appellant, they used to take emus, plain turkeys, kangaroos, goannas or snakes: bush tucker. The appellant used to go hunting with his father. The family walked through the bush carrying their swags. They walked to Burketown, where the appellant went to school for a month, and then to Doomadgee. They continued to eat bush tucker. When the appellant grew up, he married an Aboriginal woman whose mother was one of the Waany people. He went to live in Mt Isa in 1972 or thereabouts, but since then he has gone back to the country around Burketown and Doomadgee "a couple of times" a year for a month or so. Once or twice a week he has gone out from Mt Isa hunting in the bush for bush tucker. According to Aboriginal law, he should not kill more than is needed for food for his family. According to Aboriginal law, he or his family may capture a young bird for a pet but, when it grows up, it has to be let go because it belongs to the bush. He abided by that law. The appellant has had considerable contact with non-Aboriginal ways. Like many Aborigines, he appears not to have abandoned traditional Aboriginal ways but rather to have adjusted Aboriginal ways to the exigencies of life in a predominantly non-Aboriginal society.