Weisbrot, David --- "Claim of Right Defence to Theft of Sacred Bark Paintings" [1981] AboriginalLawB 11; (1981) 1(1) Aboriginal Law Bulletin 8

• Claim Of Right Defence To Theft Of Sacred Bark Paintings

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Claim of Right Defence to Theft of Sacred Bark Paintings

by David Weisbrot

On 1 March l979 Cecil Patten and William Craigie (both NSW Aborigines) brought a civil action in the Waverley Court of Petty Sessions against Clive Evatt's Hogarth Gallery/Aboriginal Arts Centre claiming that eight bark paintings by the late Yirawala (OBE) of Croker Island on sale at the Gallery were a sacred record of the Dreamtime and the property of the Aboriginal people. Evatt himself had earlier tried, futilely, to interest 50 major companies (including BHP, CRA, Utah, ACI, MIM and the Bank of NSW) in purchasing the paintings, valued at $200043000 each, and donating them to public galleries to avoid the almost inevitable sale to an overseas purchaser.

While the civil claim was proceeding (it was subsequently rejected) Patten and Craigie were charged with breaking and entering and the theft of six of the eight paintings from the Gallery. On trial in the District Court the accused based their defence on an honest claim of right, that is, that they held a genuine, if mistaken or even unreasonable, belief that they had a legal right to deal with the property in the way they did. (See Nundah [1916] NSWStRp 77; (1916) 16 SR (NSW) 482; s.22 of the Queensland and West Australian Criminal Codes; and ss. 42, 44, 45, 226(l) and 267(3) of the Tasmanian Code.)

Cecil Patten testified under oath that he genuinely believed that the accused had the right to take the paintings, even under NSW law, because the sacred paintings were the property of the Aboriginal community and not for individual ownership, even by the artist himself, and that therefore title to the paintings had never passed to the Gallery. Patten also expressed his fear that the paintings would go out of Australia if left for private sale. From the dock Craigie stated that 'I did what I did in innocence because of my beliefs and the beliefs of the Aboriginal people of Australia.' A number of Aboriginal people were called as witnesses to testify as to the importance of Yirawala's paintings to the Aboriginal community and their place in Aboriginal culture. In his summation to the jury, Bruce Miles, for the accused, stressed the continuing encroachment on Aboriginal land and traditional sacred sites and pointed to the Yirawala paintings as a remnant of Aboriginal culture that the accused were desperate not to lose.

Judge Bell told the jury that the verdict would have to be based on NSW law rather than Aboriginal customary law, and that the jury should not be influenced one way or the other that the accused were Aborigines. Judge Bell then instructed the jury to determine whether the accused had shown that under NSW law they honestly believed they had a right to the paintings (that is, a legal rather than a moral right) and not that they actually had the right. (See report in the Sydney Morning Herald, 4.11.80, PA.) Presumably once the accused satisfied the evidential onus, the burden would be on the prosecution to negate the existence of an honest claim of right. After five-and-one-half hours the eight woman-four man, all-white jury brought in a verdict of not guilty.*

Cecil Patten commented on the favourable verdict that `after 200 years You (the jury) have given black people in this country hope. It means white people are starting to recognise Aboriginal people and our culture and our beliefs.' Craigie said 'I hope now that Aboriginal culture in general will not be prostituted to overseas interests.' Even Clive Evatt agreed that the accused 'were acting like knights searching for the Holy Grail'. Just days after the successful verdict, however, it was announced that an American buyer had reserved the Yirawala paintings and they appear to be destined to be lost to Australia.

* For a scathing criticism of the verdict in this case see Max Harris, 'Manipulating the Aborigines' The Australian Weekend Magazine, 22-23.11.80, P.4.
For a case from Papua New Guinea involving a successful claim of right defence based on customary notions of property ownership, see Tiden v Tokavanamur-Topaparik 11967681 PNGLR 231.