On August 26, 1921, the trial proceeded in Toowoomba of Harry Dale for the murder of Fred Hawes. The 1920 murder known as the Cooyar Tragedy marks the first known use of gay panic defence in Australia.
Fred Hawes arrived in Australia from England in 1907. By 1915, he lived and worked in the foothills of Queensland’s Bunya mountains. In 1919, 42-year-old Fred bought the Maidenwell Hotel and employed 27-year-old bullock driver Harry Dale to cart goods for the pub. Harry began staying overnight and eventually moved in.
Fred proved a poor hotelier. Recognising that, he sold up a year later for the equivalent of $17,000 today. The pair then bought a bullock team. Although Fred put up most or all of the money, Harry, an experienced bullocky, became the boss. Fred worked as his teamster.
They moved to a bush campsite 10 kilometres from Cooyar known as The Palms where other timber workers already squatted. The campsite featured a natural spring surrounded by a small patch of remnant rainforest filled with Bangalow palms and towering fig trees.
Three decades later, the Queensland Government designated that spectacular little forest as one of Australia’s smallest national parks.
Timber was the major local industry. An average of nearly 1,000 tonnes of logs left the Cooyar district by rail every month. Additionally, the trains carried a monthly average of 18 tonnes of sawn timber and over 200 tonnes of firewood. But all that timber didn’t get to the train station by itself. Men like Fred and Harry and — remarkably, for the time — a few women — worked either felling the timber or carting it to the rail station by bullock team.
Mary and Maggie Lynch, renowned far and wide for their ‘Muscular Womanhood’, earned their title by reputedly working harder than the local menfolk. Newspapers claimed that Mary defeated any man who dared compete against her in the wood-chopping arena. She also didn’t hesitate to thrash any poor bugger silly enough to disparage her femininity.
Fred and Harry shared a tent at The Palms, cooked their meals over an open fire and when they took time off, booked a room in town at the Cooyar Hotel. There, they played cards and drank, though always moderately. Pat Hickle ran the pub. He said they appeared to be good mates. He never saw them argue… at least… not until the night of 14 December 1920. On that night, Fred came into the bar about 10 pm and found Harry chatting with Pat.
“Have a drink, Fred,” said Harry.
“No, I won’t,” said Fred, “I want to see you.”
They went outside and Pat heard them arguing though he couldn’t hear what about. Constable Purcell, who happened by at the time, also noticed Fred and Harry in a heated discussion on the pub verandah.
When Harry returned to the bar 15 minutes later he told Pat, “I had an argument with Hawes. He accused me of telling you something about him.”
Rather than stay the night, Fred and Harry climbed on their horses and returned home.
Henry McGovern stayed at The Palms that December to look after his son-in-law’s camp. He woke up about midnight on the 14th when he heard a gunshot from the direction of Harry and Fred’s tent. Hearing nothing else, he went back to sleep.
Early next morning, Harry came to visit. He looked like he hadn’t slept. He told McGovern that Fred Hawes took a ‘cranky fit’ overnight and left — on foot — didn’t even take his horse.
“Did you hear anything last night?” Harry asked McGovern.
“A gunshot about midnight. Did you kill a possum or snake?”
“I shot a big brindle dog that was hanging around and burned it on the campfire.”
Later, Harry went into Cooyar for supplies. He ran into Constable Purcell who asked him about the argument the night before. Dale explained that Hawes became cranky at the pub and remained that way when they reached home. He claimed Fred told him, “I am off… You can have everything. I might come back and I might never come back.”
Next day, Harry Dale asked Henry McGovern to keep an eye on his camp while he went away for a few days.
Henry started thinking about that story of the big brindle dog. He went over for a look at the fire. Henry thought the pile of ashes indicated a larger fire than necessary to burn a dog. He noticed bones among the ashes. But then he also glimpsed a belt buckle similar to one Fred Hawes wore and metal trouser buttons.
Not a man to jump to a hasty conclusion
Poking around, he exposed a skull. Henry began to wonder.
“It was rather a funny shape for a dog’s head.”
Probably by this stage of the evidence in a later court hearing, jurors understood that Henry McGovern was not a man to jump to a hasty conclusion. But even old Henry eventually put two and two together.
“I believed it part of a man’s skull.”
Noticing drag marks leading to the ash heap, Henry followed the trail over logs, through a fence, past the tent and to a path that led out to the road. There he discovered two pools of blood covered with scattered ashes.
Harry returned on Saturday. Next morning, Henry went over for a chat. Frank Carey, another resident of The Palms, was staying in town over Christmas. He came by on a bicycle and they told him about Fred leaving. However, when Frank popped into the tent for a glass of water, he saw Fred’s false teeth sitting on the table. Now, a man might leave without his horse, but his teeth?
Later that day, Harry Dale packed his things and left for a Christmas and New Year’s holiday break in Brisbane.
Just before the New Year, Frank Carey returned to camp with 16-year-old James Hurley, his teamster. Henry McGovern took Frank and James over to Harry Dale’s campsite and showed them the fire. They looked at the skull among the ashes and they too thought it looked human. Poking around the dead fire, they also discovered a number of boot eyelets.
Harry Dale returned to the camp mid-January. McGovern noticed that he raked up the ashes from the fire, piled more wood on top, and set it alight again.
By this stage, McGovern, Carey and Hurley thought that Harry probably murdered Fred. But they kept their suspicions to themselves.
A man like that deserves shooting.
Constable Purcell saw Harry occasionally over the next few months and always asked after Fred. Harry inevitable answered that he hadn’t seen or heard from Fred but that someone sometime said somebody saw him someplace.
In May, Harry Dale ran into trouble with the law. He was convicted of stealing £56/10, an enormous amount of money, ‘from the person’ of James Funney. Being his first offence, he escaped with a suspended sentence. Unfortunately, no further details of that case are available. Knowing more about how he came to steal that money from Funney’s person might provide insight into the later murder case.
In August, young Hurley finally told Constable Purcell that he and his mates suspected Dale of murdering Fred. Purcell went to The Palms and saw for himself the trouser buttons, boot eyelets and fragments of bone amidst the ashes though no sign of the skull. The second fire probably disintegrated that. A sergeant from Oakey joined Purcell and together they put the ashes through a sieve. They sent the bone fragments and remnants of burnt clothing items off for scientific analysis.
A few days later, the police collected Harry Dale from where he was working and brought him to the campsite.
Detective Senior Sergeant O’Sullivan asked him, “Will you show me where you shot the dog?”
Harry pointed out a spot near the tent.
“Will you show me where you burnt the dog?”
Harry indicated the fire. They all walked over and looked in silence at the ashes. For at least three minutes, the three cops and Harry stood wordless and contemplated the rubble… a funeral pyre… ashes… to ashes… dust to dust…
“It is no use. I must tell you the truth. This has been worrying me since. I must get it off my mind.
“I shot Hawes and I burnt him there, but he forced me. He tried to commit sodomy on me on more than one occasion.”
And so Harry Dale invented the gay panic defence.
“I am not sorry I shot him, but I am sorry I burnt him. I reckon a man like that deserves shooting.”
Dale told the police that when they returned home from the pub on the 14th, he sat down on a log out the front of the tent.
Hawes put his hands on me for a certain reason
“Hawes came over and put his hands on me for a certain reason. I told him to go away. He caught hold of me and said certain things.
“I tried to go away from him, but he caught hold of me and… [the records go suddenly coy, and avoid spelling out exactly how Fred allegedly touched Harry].
“He threw me on the ground. I wrestled with him and got away from him. I rushed in and got my gun, put a cartridge in it and came out and shot him in the head.”
Dale’s trial took place in the Supreme Court in Brisbane before Justice Lukin. Born in Condamine, Lukin was the first local-born judge of the Queensland Supreme Court. He possessed remarkable commonsense. He analysed evidence forensically, not allowing prejudice and hysteric moral judgements to cloud his thoughts.
All the witness statements and forensic evidence pointed to guilt. Dale’s counsel, James William Blair, needed a compelling argument to save Harry Dale from the gallows. All he had was the defendant’s statement to the police that Hawes attempted sodomy on him. However, Blair, later Chief Justice of Queensland, wouldn’t risk putting his client on the stand.
Novelist Frank Hardy described Blair as “a fat jovial whisky-drinking fellow who married a barmaid [and] didn’t take life or justice very seriously.” The truth in that statement kept Blair off the bench until relatively late in life but also gifted him a worldliness that served him well as a defence barrister.
Gay Panic Defence
Instead of putting Dale on the stand, Blair found three other male witnesses to testify that Fred Hawes hit on them. Although J.J. Kingsbury, the legendary Crown Prosecutor, believed the evidence inadmissible, he withdrew his objection because murder was a capital offence and the trial thus a matter of life or death.
18-year-old Alex Thies gave evidence of a homosexual advance by Hawes. None of the papers printed his evidence. Perhaps it was too explicit to be rendered sufficiently innocuous for 1920s readers. Alex later joined the Queensland Police.
The other two witnesses were men in their twenties.
Sam Arthur stated that Hawes behaved so improperly towards him at the bar of the Maidenwell Hotel, that the witness struck Hawes with a chair.
John Hage swore on oath that Hawes did something so dreadful to Hage while he was lying on a bed that the witness ordered him from the room and threatened to shoot him if he ever returned.
Justice Lukin spent nearly an hour summing up. His Honour asked the jury to remember where Fred was shot. The physical evidence suggested Dale shot him behind the tent on the path to the main road. If that was the case, said Justice Lukin, Dale’s claim to self-defence completely vanished. The gay panic defence would fail. It meant Dale was in no immediate danger of being sodomised at the time of the shooting.
When the jury returned a verdict of manslaughter, His Honour made his feelings abundantly clear. A verdict of wilful murder would have been justified, he said, because of both the evidence and the defendant’s own admissions.
But Judge Lukin also comprehended something else.
The jury apportioned some of the responsibility for the murder to the victim. He contributed to his own death by attempting to have sex with his killer.
But as Justice Lukin pointed out, Henry Dale was the constant companion of Fred Hawes for seventeen months. Those men were together 24/7.
“His victim may or may not have been addicted to certain practices,” said the Judge, but if so, those practices “can not have been unknown to Harry Dale.”
Did Harry Dale never notice Fred Hawes hitting on other men? If Blair could find three men from that small community, in that era, who would brave public ridicule to admit a man hit them up when they were drunk, how many more men did Fred actually hit on? And what was his success rate? It’s unlikely his conquests said anything.
And should we believe that Fred, who risked groping complete strangers at a bar — or in their beds — shared a tent and hotel rooms with Harry Dale for seventeen months before trying anything?
Judge Lukin saw straight through what would later become known as gay panic defence.
He imposed a sentence of 10 years with hard labour. Dale served just over seven years, married almost immediately after release, and lived until 1967.
Sadly, it took many decades and many deaths before Queensland disallowed gay panic defence.
There is no grave for Fred Hawes. Thanks to Harry Dale, little remained of him. However, The Palms remains a national park and perhaps the best memorial to this long-forgotten Queenslander.
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