The Trial of Nancy Young

The Yumba was a camp on the outskirts of Cunnamulla in which between 100-200 First Nations people were “relocated” between the late 1800’s and up until the early 1970’s.
Conditions were harsh, facilities almost non existent, but it was an area many families had to call home.
There have been many amazing people and talented artists rising from the adversity of the Yumba, but unfortunately a number of troubling stories too.
Four Corners filmed a documentary in 1969 called “Out of Sight Out of Mind”, it was a provoking documentary of life in the Yumba and the story of an Aboriginal woman Nancy Young, who was jailed for manslaughter after the death of her baby, supposedly of neglect.

In December 2024 a short follow up documentary was released exploring the effect on Nancy’s family over 50 years later.

The death of an Aboriginal child is by no means a news-worthy event in a society where the incidence of Aboriginal infant mortality is six times higher than that of white infants. But the departure from this world of Evelyn Young, four and a half months old, from causes unknown and highly disputed, has already inspired two television documentaries, a large protest meeting, two irreconcilable judgements of the Queensland Supreme Court, and a lively medical controversy which is yet unresolved. The written and cinematic material produced in the fight to free Nancy Young as exposed the black tragedy of the Aboriginal fringe-dweller, played out in this instance against a background of legal and medical inadequacy and small town racism.

Evelyn died in Cunnamulla Hospital on 9 July, 1968. Four months later her mother Nancy was charged with manslaughter on the grounds of an alleged failure to provide her with adequate food or to seek medical attention. After three months spent in gaol for failure to raise bail, Nancy was found guilty by an all-white, all-male jury and sentenced to three years’ hard labour. Her appeal was heard and dismissed by the full Queensland Supreme Court which, two months and a public outcry later, reversed itself on the grounds of fresh evidence, and freed Nancy one month before she was due to be released on parole.

The Queen v. Nancy Young is a classic example of the familiar process which has been described as “expiation by cause celebre”.[i] An obvious injustice is located, spotlighted by the media, publicly protested, and finally remedied by an establishment device, such as a Royal Commission, or re-appeal with “fresh evidence“, which fails to come to grips with the real cause of the original injustice. Nancy Young was set free. But the manner of her liberation left unsolved, even untouched, the intractable social problems which brought about her prosecution. Still to be remedied are the problems any Aboriginal faces when enmeshed in a legal machine not programmed to take account of his particular cultural handicaps. Still to be researched are those medical theories advanced in her case which hold out some hope of breakthrough in the disastrous cycle of Aboriginal infant mortality. Still the filthy, insanitary conditions of outback “reserves” denigrate and depress the potential for Aboriginal advancement.

On the Cunnamulla Fringe

Cunnamulla, set in the midst of Queensland’s richest beef and cattle country, is a prosperous, self-satisfied South-West Queensland township, replete with brand-new Civic Centre and Bowling Club, a Theatre and three large Hotels. Bowling Club membership, like the Theatre’s best seats, is “out of bounds” to the town’s coloured population, and two of the hotels are well entrenched behind the colour bar. The local squattocracy, recent hosts to Princess Anne, not surprisingly failed to show the Royal visitor the example of genuine Australiana which squats uncomfortably on the fringe of their town. For just beyond the well-kept cemetery, and flush against the town’s sewerage outlet lies “the Reserve”. Here, between the devil and the deep brown sea, the township’s two hundred Aborigines subsist.

“Mary McCarthy’s” is one of the eighteen tin shanties which dot the reserve. Constructed of corrugated iron, this ten by twenty shack was home to Nancy, three other adults and ten children, all of whom slept on flax mattresses laid out on its dirt floor.[ii] The nearest supply of water (artesian bore water, which requires boiling before it can be safely consumed) is from a tap forty yards distant, and further still is the block of unsewered earth closets which provides the communal lavatory. Empty bottles and dumped rubbish swim in the stagnant water, which even in summer carpets large portions of the camp. Add to this the plagues of flies and mosquitoes caused by the neighbouring sewerage outlet, the high incidence of disease among the reserve’s inhabitants, particularly the children, comes as no surprise. Eye, nose and ear infections, and intestinal diseases such as gastro enteritis and non-specific diarrhoea, are rampant, whilst the more serious illnesses such as tuberculosis and pneumonia produce an Aboriginal death rate which could be as much as three times higher than the Cunnamulla average.[iii] Even the local Council’s own Health Inspector, a Vietnam veteran, admitted to a “Four Corners” team that “the conditions here are in many respects worse than the conditions which exist in refugee villages in Vietnam”.[iv]

Cunnamulla’s attitude to its poor relation is disturbingly ambiguous. Aboriginal labour is utilised for menial jobs at low wages for the men, the town offers station employment or council labouring; for the women, laundry or kitchen work. Yet reaction to the reserve from white power centres in the town varies from lethargic (the local hospital, aware that its post-natal clinic is not used effectively by Aboriginal mothers, has no apparent plans to improve the situation),[v] to aggressive (the Shire Chairman claims that the only alternative to the status quo is to “put these people on the run”).[vi] The Chairman’s answer to charges of parochial neglect is simple the Aborigines do not pay rates, so they are entitled to very little consideration.[vii] This explains why more Council money is spent on the upkeep of the cemetery than on improving the reserve? ex-ratepayers have a “right” to enjoy in their decomposing years a better water supply than their freeloading Aboriginal neighbours. When taxed with their insensitivity to Aboriginal problems, townspeople will usually dodge the issue by inveighing bitterly against the endemic ignorance, disease, drunkenness and promiscuity of the reserve, for which they hold its inhabitants solely responsible. They find it impossible to comprehend the concept of a “duty” owed by them to “shiftless blacks”, much less a causal connection between their own apathy and the squalor of the reserve. They tend to be angered more by the occasional drunkenness and de facto sex relations of the fringe dwellers than by the abysmal failure of State or local Governmental authorities to provide minimum standards of welfare.

 

 

The World of Nancy Young

Nancy Kate Florence Young has lived on Cunnamulla Reserve since she was five, brought thence by a mother who was later to die in Brisbane gaol while serving life for a crime of passion. Her father, an incorrigible if incompetent petty thief, Nancy never knew.[viii] The odds stacked against her by these antecedents were not improved when she left school at the age of thirteen, having attained Grade three (a standard reached by most Queensland nine-year-olds) to work as housemaid for a white Cunnamulla couple.[ix] Ironically this very first job involved caring for children, and lasted until she had one of her own at the tender age of fifteen. During the next twelve years she was to mother nine more, most, like Evelyn, springing from a de facto relationship with three-quarter-caste Aboriginal Walter Turnbull, who doggedly referred to her throughout his trial testimony as his wife. Turnbull was wont to squander his irregular pay cheques leaving Nancy to provide for herself and her children by child welfare payments and part-time waitressing, which together during Evelyn’s lifetime averaged six dollars per week.[x] This was the amount with which the law was to insist that she “adequately” feed herself and her children. At the time of Evelyn’s death, poverty had forced five offspring into Child Welfare institutions, another had long since died, one was living with relatives, and two (aged three and five) were with her in Mary McCarthy’s crowded shanty.

Nancy Young is now twenty-nine but looks well over forty. She admits to “drinking a bit”, which is probably responsible for the sole entry on her police record a five dollar fine for using obscene language in 1965. Otherwise her demeanour is somewhat cynical, if resigned. Looking at reserve conditions and speaking to inmates like Nancy, one is surprised not by apathy but by group fortitude. Their general attitude is resilient, and a kind of wry humour survives. When we asked what she thought of her manslaughter charge Nancy replied laconically: “I didn’t think much of it, really.”

The Life and Death of Evelyn Young

Evelyn was born on 23 February, 1968, and weighed eight pounds two ounces when, as an apparently healthy infant, she was taken home by her mother to “Mary McCarthy’s” on the Cunnamulla Reserve. Five weeks later, Evelyn weighed only ten pounds an abnormally low weight gain average of two ounces per week.[xi] As the child had at this time contracted gastro-enteritis, Nancy carried her to the local hospital for treatment. There Evelyn remained for eight days, during which time her weight increased at the same abnormally low rate. No notice was apparently taken of her failure to thrive. No tests were made, no special treatment given, and the child was discharged immediately she “looked much better” to the local nurses.[xii] There was no special advice for Nancy on how to feed her, no instructions to bring her back for check-ups, no supply of vitamins or medicine.[xiii] Nancy could be (but was not) forgiven for, assuming that the absence of any show of concern by the hospital indicated that Evelyn’s low weight gave no cause for alarm.

For the next two months Evelyn was fed five or six bottles of Sunshine milk daily, augmented with custard and Farex when Nancy could afford them.[xiv] But on Saturday, 6 July, Evelyn fell seriously ill, vomiting all her food. So at midnight Nancy wrapped her daughter in a blanket and set off in the cold to walk the mile and a half from the reserve to Cunnamulla Hospital. The duty nurse, a Cunnamulla housewife, gave Nancy a reception several degrees lower than the night air, and later complained of the “offensive odour” of the blanket.[xv] Her contribution to the child’s welfare was to give her a bottle of glucose and water, and put her to bed, where she stayed for nine hours until the local doctor arrived in the normal course of his Sunday morning rounds. Dr. Thomas Osborne had been “on call” all night,[xvi] but his nurses had not called him to the sickbed of the Aboriginal child who, on their own evidence at the trial, was severely dehydrated and looked seriously ill on admission. Dr. Osborne began feeding by stomach tube and subcutaneous drip.[xvii] Neither method, according to specialist evidence at subsequent appeals,[xviii] was “indicated” by the circumstances. By the time normal intravenous feeding was commenced, Evelyn’s life was probably beyond repair. Broncho-pneumonia had set in, and she died on Tuesday morning, two days after her admission to hospital, and weighing seven pounds five ounces six ounces less than her admission weight. A post-mortem was held on that same day 9 July. Even before he conducted it, Dr. Osborne had a conversation with the local C.I.B, detective,[xix] as a result of which that officer sought out Nancy for questioning as to her responsibility for the child’s death from what he termed “gross malnutrition and neglect” (this at 10.50 a.m. six hours before the inquest).[xx] Three weeks later he interviewed her again.[xxi]

By the end of July, the Crown had all the evidence it would ever gather against Nancy. For three and a half months, nothing happened. Then her four-year-old daughter was admitted to Cunnamulla Hospital suffering from gastro-enteritis, and the very next day Nancy was arrested for manslaughter. This circumstance, and the inexplicable delay, supports those local Aborigines who view the prosecution as some sort of “reprisal” a manifestation of white Cunnamulla’s desire to “punish” the reserve for its standing reproach to the town’s complacency. There were too many diseased children littering the hospital, too many illegitimates roaming the streets in rags, too many claims being made on the town’s grudging public spirit. Nancy Young’s crime was not to neglect her child her real mistake was to be coloured, poor and occasionally tipsy, to breed without benefit of clergy a swarm of children who brought the “offensive odour” of the reserve into the local hospital once too often. Hence to charge her with manslaughter, to set bail at one thousand dollars (surely unnecessary in the light of the nature of her offence and her six dollar weekly earnings), to gaol her for three months, including Christmas, without trial was all part of the working out of this primitive desire to reprimand “the Reserve” for flaunting its untaxed poverty and promiscuity in the faces of the sober citizenry of Cunnamulla.

The Trial

On 14 April, 1969, Nancy boarded the train incredibly, at her own expense for Roma, three hundred miles distant, where her trial for Evelyn’s manslaughter commenced the following day.

One of the first witnesses called against Nancy was her own “husband”, Walter Turnbull, a three-quarter-caste Aboriginal. He swore that he had never seen Nancy ill-treat the child, and freely admitted to dissipating his occasional pay cheque.[xxii] Turnbull was followed by three nurses, only one of whom was qualified, who confirmed the hospital’s failure to give special treatment to Evelyn in April, but went on to paint a dismal picture of her state on admission that early Sunday morning before her death. They told of Evelyn’s “pitifully thin”, dehydrated and discoloured body, as though her life had been ebbing away before their eyes.[xxiii] This was meant to be damning evidence against Nancy (the inference being that a reasonable mother would have sought medical attention much sooner) but was difficult to reconcile with their failure to call the hospital doctor.[xxiv] The chief witness for the prosecution was Dr. Osborne. He admitted that Evelyn should have received tests in April to establish why she was not coping efficiently with her food.[xxv] But he committed himself, the Crown and ultimately the Court to the proposition that Evelyn’s perilous condition and the consequent necessity for medical assistance, should have been obvious for several weeks before her death.[xxvi] He firmly ruled out any possibility of a sudden and rapid weight loss in the few days before death, and denied the possibility of scurvy.

Nancy’s defence began with Aboriginal Mary McCarthy, ironically called as a Crown witness, who swore that she had seen Evelyn fed regularly, with five or six bottles of Sunshine milk daily, and Farex and mashed vegetables when they could be afforded.[xxvii] Only on the Saturday before her death did Evelyn look sufficiently ill to warrant treatment.[xxviii] Nancy’s other witness was Dr. Archivides Kalokerinos, Medical Superintendent of the District Hospital at Collarenebri since 1957. He explained his own research in this area suggests that Aboriginal children are born with an in-built vitamin C deficiency, which if not remedied will lead to scurvy, severe weight loss, dehydration and death.[xxix] As weight loss is the most dramatic manifestation of both scurvy and starvation, it would be impossible, he claimed, for Dr. Osborne’s superficial examination to differentiate between malnutrition from lack of food, and malnutrition from deficiency of vitamin C. He argued that the failure of the hospital to administer or recommend vitamin C, and Nancy’s inability to buy fresh fruit at inflated Cunnamulla prices, made the onset of scurvy inevitable. This would cause a sudden and traumatic loss of weight, “as if a tap was turned on, and weight drained out of the infant”.[xxx] In his view, the child would have looked normal two days prior to admission, yet had suffered a catastrophic weight loss from the combined effects of scurvy and pneumonia over the next few days.

Nancy’s counsel decided not to put her in the witness box. The tendency of uneducated Aboriginal defendants to say what they believe white “authority figures” expect of them, to acquiesce readily in a line of questioning, would here have been disastrous in cross-examination.[xxxi] He was afraid that her psychological make-up was such that if badgered by the Prosecutor she would simply shrug her shoulders and “admit” anything put to her.

Mr. Justice Hart instructed the jury to ignore the two Aboriginal witnesses Turnbull because he could have been out to protect himself, McCarthy because the jury might conclude (on what grounds it is difficult to understand) that she was “quite a smart woman”.[xxxii] He seized in particular upon Nancy’s “failure” to give evidence as a circumstance likely to be confirmatory of her guilt. His penultimate paragraph, which must have stuck in the jurors’ minds, was virtually an invitation to convict:

“The accused has not given any evidence at all. She has not gone into the box you heard her invited to do so if she wished to do so she has not gone into the box and said, *I fed this child properly. I gave it the necessaries’. She has given no explanation as to why she did not take it to the doctor, or say she did take it to another doctor, or anything like that. She just allowed all this evidence to be given without denying it. I am giving you this direction . . . that it is legitimate for you to take this failure into account as a consideration which makes it less unsafe to infer guilt than it otherwise would have been.”[xxxiii]

The jury did what the Judge apparently expected of them.[xxxiv] Nancy Kate Florence Young was guilty of manslaughter

Aftermath

A ten-minute television report on the trial by the late Frank Bennett was aired on “This Day Tonight” on the evening of the verdict. A large meeting at Sydney University Law School condemned legal aspects of the prosecution and trial, in particular the high bail figure, the judicial comments on Nancy’s non-appearance in the witness box, and the failure to obtain a specialist medical opinion to resolve the crucial conflict between the two general practitioners. The Public Defender appealed to the full Queensland Supreme Court, on the ground, inter alia, of fresh evidence from Dr. Felix Arden, a senior physician and specialist in pediatrics at the Royal Brisbane Children’s Hospital. Dr. Arden affirmed that?

• It was “reasonably possible” that Evelyn was born with an abnormality of body chemistry, which was responsible for her failure to thrive.
• Her treatment on arrival at the hospital on 7 July was unusual and incorrect. Had she been treated “in accordance with normal medical procedure” (intravenous feedings and antibiotics) there was a “reasonable possibility” that her life would have been saved.[xxxv]

After delaying for two months, the Court unanimously rejected all the grounds of appeal, and showed no concern at the Judge’s inference from Nancy’s failure to give evidence.[xxxvi] Dr. Arden’s affidavit was almost contemptuously dismissed on the grounds that:

“… there is no reason to suppose that evidence of this nature, or for that matter any of the evidence contained in Dr. Arden’s affidavit, was not available at the time of the trial. The nature of the evidence, therefore, is not such as would justify the court in ordering a new trial on this ground.”[xxxvii]

The Queensland Council for Civil Liberties launched an appeal to the High Court while simultaneously a petition for pardon was despatched to the Governor. But the real turning point in Nancy’s case came on the night of 30 August, when A.B.C. Television’s National “Four Corners” screened their documentary “Out of sight, out of mind” a study of the Cunnamulla Reserve, written around Nancy’s trial and punishment. The report highlighted the local hospital’s failure to provide prompt treatment for Evelyn, exposed the town’s racism in a series of interviews, pictured the abject squalor at the reserve with devastating effect, and concluded with a table of Aboriginal infant mortality, superimposed on a close-up of Evelyn’s rough grave. So ugly was the impression it gave of Australian treatment of Aborigines that the sale of a colour copy of the film to the B.B.C. was prohibited.[xxxviii]

Before the High Court could hear the case, the Governor referred the pardon petition back to a Queensland Supreme Court of three different Judges.[xxxix] This bench unanimously decided to quash Nancy’s conviction and sentence (which had only one month to run in any case!), on the grounds of fresh evidence.[xl] Just how much “fresher” the evidence was than that rejected at the first appeal is open to doubt. It consisted of one further affidavit, made jointly by Dr. Arden and by Dr. David Gilbert Jose, a Senior Medical Research Fellow of the Queensland Institute of Medical Research, who for the last six years has been specialising in Aboriginal infant health. The two experts concluded that Evelyn’s dehydration occur red suddenly, within the forty-eight hours before she was admitted to hospital on 7 July. Prior to this, they claimed, the child would not have appeared in urgent need of medical attention to a medical practitioner, let alone to an uneducated Aborigine lulled into a sense of false security by the child’s premature discharge in April. The doctors agreed that it was “probable”, not just “reasonably possible” that her failure to thrive was due to a disorder of body chemistry, or, Dr. Jose added, pace Dr. Kalokerinos, because the foodstuffs fed to her did not contain sufficient vitamin C.[xli] The Court decided that… “had this evidence been in the hands of the defence at the trial the course of the trial including the line of cross examination of the doctor called in the Crown case, the address to the jury and the summing-up of the judge would have been cast in a very different vein”.[xlii] The Court held that the child died “more probably than not” from a disorder of body chemistry. On 5 November, having spent ten months in gaol since her arrest, Nancy was released.

Who Killed Evelyn Young?

The trials of Nancy Young must be viewed within the context of the disastrous failure of Australian medical knowledge to cope with Aboriginal infant mortality, which in some areas is up to thirty times the Australian average, and among the highest anywhere in the world.[xliii] This is partially explicable by the sub-standard living conditions of our fringe-dwelling coloured population, and the sheer ignorance of many Aboriginal mothers of elementary safeguards of proper feeding and child hygiene. To this extent, the problem will continue so long as social conditions remain. Yet the imbalance is so severe that theories of inherent vitamin deficiencies amongst Aborigines clamour for investigation. A thinly veiled verdict on the real cause of Evelyn’s death is contained in a November 1969 report from Dr. Jose’s Queensland Institute of Medical Research which strongly recommended that, when confronted with ailing Aboriginal infants, doctors should commence intravenous feeding, and give injections of vitamin and iron. The children should be kept in hospital for observation and special treatment, and not released until fully recovered.

Perhaps the most pointed conclusion to Nancy Young’s case is the beginning of another. On 18 December, the Townsville Daily Bulletin reported, under the heading “Doctor Tells Court Baby Died from Malnutrition”, that

“A four-month-old Aboriginal child died from malnutrition, a doctor told the Townsville Coroner’s Court yesterday. . . . The Government Medical Officer who performed the post mortem examination, told the court the child was twenty-two inches long, had been of slight build and weighed seven pounds fifteen ounces.
He said significant findings were extreme malnutrition and dehydration. Her eyes were sunken and her skin showed marked evidence of dehydration.”[xliv]

The report went on to explain that the child was the offspring of a de facto relationship, its mother and father living in a converted garage out of the town. The child had been taken to the local hospital suffering from gastro-enteritis some two weeks before its death, and perfunctorily discharged without special treatment or any interest being shown in its abnormally low weight. There was also evidence that inadequate feeding instructions had been given to the mother when she left hospital after the child’s birth. The inquest, with its overtones of hospital neglect and the possibility of criminal charges against the parents, stands adjourned at present; but it underlines starkly the consequences of failure to eradicate the medical and social inadequacies which surrounded Evelyn Young’s death.

Reviewing the Legal Situation

Nancy and Evelyn, and the social and medical conditions which determined their lives, were caught up in a legal machinery which had to be politically tampered with before a “just” outcome could be secured. The failure of traditional legal procedures to produce a satisfactory resolution of the issues involved in her trial indeed the very process which allowed her to be put on trial in the first place suggests that an inbuilt discrimination exists whenever common law rules are applied to indigent and ignorant fringe-dwellers. The majority of fringe dwelling Aborigines have never been more than marginally integrated into the mainstream of white society.

Their former identity, customs and culture are often forgotten, but they have progressed almost nowhere towards the attainment of a new role and identity. They are thus in a worse position as regards the law than tribal Aborigines.[xlv] Denied the benefits of white society, they are nevertheless punished by its standards. All these standards are applied to them by judges, jurors and policemen whose law enforcement roles are insufficiently flexible to take much account of the cultural clash, even when its existence is recognised. In consequence, it is possible to pinpoint the following stages at which our legal machinery signally failed to provide fair treatment for Nancy, although it would probably have assisted a wealthier, more sophisticated defendant in the same circumstances.

1. Police discretion to prosecute was abused by the 3i-month delay in charging Nancy. Local detectives apparently exercised their discretion only when another of Nancy’s children was admitted to hospital.
2. Fixing bail at $1,000 is little short of scandalous in the circumstances. Nancy had lived in the town with relatives since childhood, and the possibility of her absconding was remote.[xlvi] She had no police record of any consequence. Her average earnings of $6 per week should have alerted the magistrate to the impossibility of her finding such an amount. Her three-month pre-trial stretch in Cunnamulla Gaol is impossible to justify on legal or moral grounds.
3. Twelve laymen should not have been allowed to resolve a highly technical medical dispute between two general practitioners. It transpired that specialist evidence was available in Brisbane which would almost certainly have decided the issue in Nancy’s favour. This could and should have been sought by both prosecution and defence, as failure to do so vitiated the whole trial. This absence of adequate pre-trial preparation is reminiscent of the Rupert Stuart case, in which fresh evidence favourable to the Aboriginal defendant unfolded only when the case became a public issue.[xlvii] If “fresh evidence” is to be admissible on Appeal only where it was unavailable at the time of the trial, the ideal of “equal justice” makes it imperative that sufficient funds and staff be provided to Public Solicitors to give each indigent defendant access to all evidence which could work for his acquittal, irrespective of the cost of collecting it.
4. It is not the normal policy of the common law to compel a husband to give evidence against his spouse[xlviii] but the law fails to allow for the unregistered arrangements which pass for matrimony on Cunnamulla Reserve. As most fringe-dwellers “live as man and wife”, then if the protective policy of non-compellability is sound at all, it should be extended to all lasting de facto relationships.
5. Another echo of the Stuart case was present in the inference of guilt from Nancy’s failure to give evidence. Stuart’s counsel believed his client was not sufficiently articulate to stand up to cross-examination [xlix]Nancy was kept out of the box by her counsel in deference to the well-known Aboriginal habit of acquiescing in statements by authority figures which they do not understand. As Professor Elkin concludes, “Their fundamental aim is to satisfy the questioner, to tell him what they think he wants to be told.”[l] in these circumstances it is unjust and artificial to accuse the defendant of having something to hide when her “failure” to give evidence is in reality her counsel’s decision to avoid a cross-examination which his client’s psychological make-up renders useless as a means of eliciting truth.
6. Nancy has received no compensation for her eight months of wrongful imprisonment. This omission speaks for itself.

Most of the above points are of general application to the failure to secure minimal standards of justice for the poor. But it is nevertheless significant to view the Young case within a general pattern of failure to do justice to Aborigines.

A recent study of Aboriginal imprisonment figures in Western Australia revealed that Aborigines comprising between 2-3 per cent of the total population of the State made up over 30 per cent of the prison population. Aboriginal and part-Aboriginal women made up 80 per cent of the women’s prison population.[li] A study of the Walgett area has revealed a similarly high proportion of Aboriginal convictions. [lii]The percentage was out of all proportion to the Aboriginal population (40 per cent population; up to 80 per cent of the Court list). A pattern of high arrest rate, almost invariable “guilty” pleas, lack of legal representation, and general acceptance of the inevitable was found there. The conclusion was that Aborigines suffer more legal deprivation than poor whites specifically because of the added factors of racial discrimination, conspicuousness, and consequent police attention.

Finally, the Young Case is a significant illustration of the proposition that in our Courts Aborigines are always defendants and never plaintiffs. This fact should trouble those lawyers who still believe that their professional services are open to all. The evidence suggests that Nancy Young may have a case of civil negligence against Cunnamulla Hospital, its servants and agents. A wealthier or more sophisticated white mother whose child had died after receiving treatment not indicated by her condition, after lying seriously ill in hospital for nine hours without an “on call” doctor being summoned, after being prematurely discharged previously by the same hospital, would normally have her lawyer investigate a civil action to recover damages she had suffered from the child’s consequent death.

In the United States, Nancy would no doubt have such a case enthusiastically pressed by the top-line lawyers who now staff federally-funded “Neighbourhood Law Offices” for the Office of Economic Opportunity. But the case of Young v. Cunnamulla District Hospital is inconceivable in this country. That it is, provides a sad reflection on the limited and defensive operation of our legal aid schemes.

Conclusion

“In the special circumstances of this case it is important to have regard to the facts that the appellant is a part-Aboriginal woman of very little education and that she was, at all material times, living in squalid conditions in sub-standard accommodation on a reserve occupied by predominantly coloured people and situated on the outskirts of a western town in Queensland.”[liii]

Nancy’s “life situation” remains unaltered, for all the publicity which surrounded her trials. Her special vulnerability to the processes of white man’s law, like her children’s vulnerability to disease from the reserve, has in no way been alleviated. Predominant attitudes of local whites, presumably reflected by circuit judges and small town juries, remain suspicious rather than sympathetic. And this “life and situation” is shared by the great majority of Aborigines dwelling on the fringes of country towns who are equally locked in a vicious circle of under-privilege and discrimination. White townspeople come to believe that the Aborigine lives like this simply because he is an Aborigine. They talk of “good” Aborigines i.e., those who adopt white manners, attitudes, and habits, and are allowed the status of honorary (if inferior) whites. As a result of this prejudiced situation the black “out” group is stereotyped by the white “in” group as dirty, lazy, inferior, sexually immoral, and so on. Aborigines are seen as “that way” because they are Aborigines, not because of their history of subjection. Thus there is a strong feeling among some Cunnamullans that Nancy was a “bad” Aborigine and should have been punished.

The State Department of Native Affairs appointed a welfare officer to Cunnamulla the week after the “Four Corners” program. He has now bought seven houses and has plans to move selected families from the reserve into the town. The local Council responded by installing one extra tap thereby giving the reserve a water supply equal to that of the cemetery next door. The negative side, however, is more striking. The reserve, like many Aboriginal shanty towns, remains an appalling health hazard, spawning diseases which promote an abnormally high Aboriginal infant mortality rate. Whites in the town resented the publicity, and this has led to a hardening of attitudes, with Nancy Young singled out as an object of blame and resentment. When it was rumoured that a particular house had been set aside for her, three petrol bombs were lobbed at it by white “vigilantes’*, some of whom have apparently armed themselves with shotguns.[liv] Thus, blame and resentment is projected on a scapegoat instead of being directed to sources of trouble and to solutions.

The attitudes which conspired in Nancy’s charge should be seen as part of a total pattern of attitudes in the town, mirroring other outback towns with Aboriginal enclaves. The contradictions abound. The reserve is dangerously unhealthy, so you charge Nancy Young with neglect but don’t improve health conditions there. The medical authorities in the town agree that the reserve is a source of too many of their clients, but no program of health education for Aborigines is felt to be appropriate. Had Nancy been instructed to feed her child on a proper diet she would not have been able to afford the fruit and vegetables recommended. Regret, often of a sentimental sort, is expressed about the child’s death, but this regret becomes almost a desire for revenge upon Nancy rather than any attack on the vicious conditions which produced the death. Meanwhile both Shire Council and State Government sanctimoniously disclaim financial responsibility for the living conditions on the reserve, each claiming that this is within the other’s province and in consequence nothing is done.

What is lacking is any attempt at understanding or remedying such a situation. Instead, old attitudes and roles harden. As C. D. Rowley puts it, “Aborigines are reacting in their caste system situation precisely as would any group of human beings, similarly placed by their history in contact with the whites, and by the continued existence of a racial barrier to upward social mobility in the predominant society. Such reactions confirm the stereotype Aborigine of the  white “in” group, and are explained as something inherently ‘Aboriginal’.”[lv] In other words those of Jack Tonkin, Chairman of the local Council “responsible” for the Reserve, on national television, “They get together in their little groups, they play their cards in the sun and have their gambling, and it’s their way of life. They’re quite different to the white people in that respect. . . . Something for nothing’ I think is their motto. They don’t get very much for nothing, I’ll admit that too. I think you’ll find if you poke down there they are pretty happy in their environment.” [lvi]

[i] Jim Spigelman, “Legal Services in the War on Poverty”, Blackacre ’68, p. 15.

[ii] Cf. Transcript of Evidence given at Roma trial?local policeman V. S. Gustafson, p. 17, line 30; cross-examination p. 20 1 10-20.

[iii] Statement by local doctor to Frank Bennett on “This Day Tonight” programme, 18 April, 1969.

[iv] Mr. Roger Harding, on “Four Corners”, 30/7/69, transcript of interview, p. 4.

[v] Cf. Transcript of Evidence at Roma Trial?Dr. M. T. Osborne, cross-examination, p. 75 1.1-5.

[vi] “Four Corners” transcript, p. 10.

[vii] Ibid, pp. 9, 10.

[viii] Petition of Nancy Kate Florence Young, 27/10/69, clause 1.

[ix] Ibid.

[x] Transcript of Evidence, V. S. Gustafson, p. 16.

[xi] Ibid, Nurse W. A. Ross, p. 46.

[xii] Ibid, Nurse K. M. Szavo, cross-examination, p. 51 1.10. Two of the three nurses involved were Cunnamulla housewives with no nursing qualifications.

[xiii] Ibid, W. A. Ross, cross-examination, p. 47. Also R. v. Young (No. 2) 1969, Qld. Reports, p. 566, where the Supreme Court found to be “extremely relevant to the cause of death” the evidence that “in the light of the failure by the Cunnamulla Hospital to give special  feeding and management instructions to the Appellant when the child was discharged from hospital in April, 1968, there would be no reason why the appellant should not assume that the child was unusually small and thin and not suffering from any illness.”

[xiv] Petition, clause 11(c).

[xv] Transcript of Evidence, Nurse L. L. Scheiwe, p. 38 1.15, and p. 41. “What are you doing bringing a baby up in the cold at this time of night?”

[xvi] Ibid, M. T. Osborne, p. 67, 1.48.

[xvii] Ibid, pp. 58, 69.

[xviii] Affidavit of Dr. F. W. Arden, dated 12/5/69, paragraph 6.

[xix] Transcript of Evidence, V. S. Gustafson, p 11, 1.43.

[xx] Ibid, p. 12, 1.54.

[xxi] Ibid, p. 16.

[xxii] Ibid, W. Turnbull, pp. 25-36.

[xxiii] Ibid, e.g. Scheiwe at p. 38, Ross at p. 44.

[xxiv] Cf. note 16.

[xxv] Transcript of Evidence, M. T. Osborne, p. 77, 1.18.

[xxvi] Ibid, pp. 61, 62.

[xxvii] Ibid, pp. 81-91.

[xxviii] Ibid, M. McCarthy, p. 89.

[xxix] Ibid, p. 94 onwards.

[xxx] Ibid, A. Kalokerinos, p. 104, 1.55.

[xxxi] For discussion of this tendency in legal contexts cf. generally A. P. Elkin, “Aboriginal Evidence and Justice in North Australia” (1947), 17 “Oceania” 173, and T. G. H. Strehlow, “Notes on Native Evidence and its value”, “Oceania”, Vol. IV, No. 3, pp. 323-325.

[xxxii] Summing up, p. 161, 1.143, in Record of Proceedings, Young v. the Queen, filed in high Court of Australia.

[xxxiii] Ibid, pp. 164-165.

[xxxiv] Judge Hart, in his report to the Court of Appeal, commented that the Crown had a strong case?1969 Queensland Law Reporter, p 438.

[xxxv] Cf. Dr. Arden’s affidavit in Record of Proceedings, p. 217, especially paragraphs 4 and 6.

[xxxvi] 1969 Queensland Law Reporter, p. 417.

[xxxvii] Ibid, per Lucas J. at p. 438.

[xxxviii] Cf. “A.B.C. refuses to sell Four Corners films to B.B.C.” report in “The Australian”, 12/11/69.

[xxxix] They were Justices Douglas, Matthews and Campbell.

[xl] R. v. Young (No. 2), 1969 Queensland Reports, p. 566.

[xli] Cf. Their joint affidavit, dated 26/11/69, paragraphs 5-12.

[xlii] R. v. Young (No. 2), 1969 Queensland Reports, p. 566.

[xliii] Cf. Dr. P. M. Moodie, “Mortality and Morbidity in Australian Aboriginal Children”,  Medical Journal of Australia”, January, 1969, p. 183.

[xliv] Townsville “Daily Bulletin”, 19/12/70, p. 8.

[xlv] Cf. note 31.

[xlvi] These are the two considerations which Courts normally take into account in deciding whether to grant bail. “The grant or refusal of bail is determined fundamentally on the probability or otherwise of the applicant appearing at Court as and when required, and not on his supposed guilt or innocence.” per O’Brien J., R. v. Mahony Smith, 1967, 87 W.N. (N.S.W.), p. 254.

[xlvii] Cf. K. S. Inglis, “The Stuart Case”, M.U.P., Melbourne, 1961, p. 16.

[xlviii] Cf. S618A, Queensland Criminal Code: “Every person accused of an indictable offence, and the wife or husband, as the case may be, of every such accused person, shall be a witness on his or her behalf, but shall not be compellable to be a witness without his or her consent.” This right does not exdent to a partner or a de facto relationship R. v. Fuzil Dean (1895), 6 Q.L.J. 302.

[xlix] K. S. Inglis, supra note 47, p. 146, quoting Professor Julius Stone.

[l] “Oceania” (1947), vol. 17, p. 188.

[li] M. V. Robinson, “Imprisonment of Aborigines and Part Aborigines in Western Australia” in Berndt, R. M., “Thinking About Australian Aboriginal Welfare” (1969), pp. 14-19, at p. 17.

[lii] “Aborigines and the Law”, “Nation”, 14 June, 1969, pp. 13, 14.

[liii] R. v. Young (No. 2), ibid.

[liv] Cf. “The Australian”, Saturday, 10 January, 1970, p. 1; also, for a fanciful account of Cunnamulla disturbances, Brisbane “Sunday Truth”, 11 January, 1970.

[lv] C D. Rowley, “Some Questions of Causation in Relation to Aboriginal Affairs” in “Aborigines and the Economy”, ed. Sharp and Tatz, p. 354 (Jacaranda Press, 1966).

[lvi]  “Four Corners” transcript, p.