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should be administered under strict supervision and as an exemplary form of punishment; it was preferable to the
demoralising effects of a long term of imprisonment.
Wells continued to declaim from the bench his views on Aborigines and the law. He considered that murder
was in no way diminished in law because of the influence of Aboriginal customary practices and that retributive
justice operated for the Aboriginal society as it did for the white man’s world. Wells voiced prescriptions for
Aborigines who were caught up in the criminal justice system that accorded with popular white sentiments in
Darwin at the time, including caustic criticism of the executive’s policies. He regarded the funds expended on
the Bagot Compound encouraged Aborigines to congregate around Darwin in an undesirable way. Bagot became
a token of misguided policies and Wells used this when he dismissed a case when the jury could not agree and
the accommodation available was inadequate. He averred that the money put into Bagot would have provided
overnight accommodation for jurors. Again Wells used Bagot to illustrate the executive’s failings when he
sentenced Roy Ant-dool to a year’s jail for the indecent assault of a six year old part Aboriginal girl; Wells asserted,
‘This boy should be given a good flogging. Then he should be sent back to Bathurst Island and made to stay
there... The money for the compound would be much better spent in keeping the natives in their own reserves and
giving further assistance to the missionaries to extend their work.’
In late July 1938, Wells concluded after 22 sitting days the hearing of an appeal by the captain of a Japanese
lugger against the detention of his vessel, the seizure of the cargo of pearl shell and the forced detention and
deportation of the crew. These actions had been undertaken by Captain Haultain of the patrol boat Larrakia
and other Commonwealth officials acting under a general instruction issued by the Administrator, Abbott. Using
the provisions of Section 19AA of the Aboriginals Ordinance 1918–1937, Wells found for the plaintiff since the
defendants, Abbott and Haultain, had failed to prove that the lugger was within ‘territorial waters’, a term which
was both vague and ill defined in the Ordinance. Moreover, the Ordinance created a conflict of local ‘municipal’
laws with the conventions of international law.
Wells’s judgement required the Commonwealth to pay 2 000 Pounds damages to the Japanese together with
their costs and the restoration of the pearl shell. The judge was unimpressed by Haultain’s demeanour as a witness
and considered him to be impulsive and careless with his logbook entries. After his return from Alice Springs in
September, Wells heard the second of the ‘lugger’ appeals. During the proceedings he remarked that there had been
no substantiation of claims that foreign crews molested Aboriginal women but there was abundant evidence that
crews (including Japanese divers) of locally owned luggers habitually interfered with Aboriginal women. The right
of innocent passage was compromised by the application of the Ordinance and thereby violated international law
was the argument put up by the plaintiffs and which Wells upheld. Wells found for the Japanese, reinforced in his
acceptance of the Japanese captain’s story that a force four wind had driven his vessel into prohibited waters when
his engines failed. Wells ordered the return of the vessel and pearl shell. Finally, in October Wells concluded the
third ‘lugger’ case and reserved judgement; settlement was determined in November by the Commonwealth for
3 592 Pounds, the return of the five vessels detained and their pearl shell cargoes.
The ‘lugger’ cases were a triumph for Wells. He had embarrassed Abbott and had ruled properly in law since the
Commonwealth decided to take the matters no further and E W Mitchell submitted to the Attorney General a legal
opinion that an appeal would probably fail on the point of law regarding the denial of innocent passage and the fact
that the demeanour of the Japanese witnesses remained unshaken under cross examination. The self-assurance of
the Japanese was demonstrated by Captain Okishima, who when asked which European of the arresting party had
brandished a revolver at him, replied, ‘every white man’s face looks the same to me’.
The Attorney General, R G Menzies, wrote to Wells in January 1939, suggesting he should desist from further
criticism from the bench of the executive’s discharge of its functions. Delayed by hearings in Central Australia,
Wells did not respond to Menzies’s frank, but gentle, admonishment until March. In a lengthy justification of his
actions, Wells described Darwin as a community of ‘public servants, whose mouths are closed by self-interest and
definite instruction; contractors who are largely dependent on the goodwill of Administration officials; business
people... interested in the supply of commodities to the Administration, and a Press which seems to depend for its
news almost entirely on censored statements issued to it daily by the Administrator.’ He went on to complain that
the 40 000 Pounds spent on Bagot was ill advised since it was badly located in swamp land and was too close to the
Royal Australian Air Force base which would inevitably result in ‘an increase in the half-caste birth rate and a rise
in... VD... amongst the troops.’ Wells’s solution lay in the exclusion of Aborigines from towns as far as possible
and that they should be taught the elements of agriculture and pastoralism. Wells reviewed the ‘lugger’ cases
which ‘showed up my fellow Australian officials in such shockingly unfavourable comparison with the Japanese
involved... they were treated as if we were savages.’
For some months before the Japanese air raid on Darwin on 19 February 1942, there was significant friction
between Wells and Abbott over the arrangements for a civilian Air Raid Precautions (ARP) organisation.
Abbott attached little importance to securing the legitimacy of Darwin’s ARP in an ordinance while Wells wanted
this done. In the confusion following the raid, Wells, with Abbott’s concurrence, released the prisoners from
Fannie Bay Gaol and took charge of feeding and evacuations by train of hundreds of survivors from the raid.
Following Abbott’s departure for Alice Springs, Wells stayed in Darwin with Constable McFarland carrying
on the civil administration in the ‘Top End’ and protecting the interests of the few remaining residents and the
property of those who had been evacuated. In a letter to his wife from Alice Springs Abbott remarked in June 1942
that, ‘The Judge is in Darwin carrying on semi-military and civil work, but I don’t think the civil court functions
in Darwin’. Wells was, though, conducting an itinerant court frequently under a tree with a court attendant keeping
at bay wandering goats, dogs and other livestock. At Newcastle Waters Wells sat on a beer crate while presiding
over a session of the Supreme Court. In late November 1943, Abbott wrote that Wells, accompanied by W S Flynn,