The cast

Defence

Defendant: Ali Abdul, 57-year-old Indian charged with being a prohibited immigrant
Ali's lawyer before the High Court: Mr T Wells
Ali's witnesses: Emma Croaker, Victor Phillips, Anthony Hawley, Gerald McElligott

Prosecution

Investigating officer: Detective Inspector Thomas Maher, Customs Officer, Department of Trade and Customs
The Crown's lawyers before the High Court: Mr Mitchell KC and Mr Bowie Wilson
Crown witness: Rhamut Khan, Indian Muslim

Three court hearings

Stipendiary Magistrate: Mr GS Shepherd
Chief Tribunal Quarter Session: Judge White
High Court Judges: Justice Rich, Justice Evatt, Justice McTiernan

Justice Sir Edward McTiernan, 1954

NAA: A1200, L16865

Overture

Ali Abdul was arrested in 1931 and charged with being a prohibited immigrant under the Immigration Act. The crux of the case against him was the date of his arrival in Australia. If Ali had entered after 1901, then he could be subjected to the Dictation Test and declared a prohibited immigrant.

Ali pleaded not guilty and four witnesses gave evidence in court on his behalf. Swearing under oath that he was of good character, the witnesses testified that they had first met the Indian shopkeeper 33 or so years earlier, giving details of when, and under what circumstances, they had known the young itinerant worker.

Despite this testimony, Ali was found guilty on 12 October 1931. The magistrate sentenced him to six months hard labour, following which he was to be deported to India. A month later, Ali and his lawyers appealed to the Court of Quarter Sessions in New South Wales. Although the trial chairman, Judge White, believed Ali's witnesses, he nevertheless dismissed his appeal on a point of law on 30 November 1931. If Ali Abdul was to stay in the country, he had to appeal his case to the High Court of Australia.

Application by Ali Abdul, forwarding his notice of appeal to the High Court of Australia, 3 December 1931

NAA: A10071, 1931/60, p.2

Sworn affidavit by Ali Abdul setting out the basis of his appeal to the High Court of Australia, 3 December 1931

NAA: A10071, 1931/60, p.3

The case for the Crown

Customs officers were charged with the task of enforcing Australia's immigration policies. They had to be vigilant because it was not uncommon for crew and stowaways to jump ship at Australian ports. Concern about the numbers of non-Europeans entering the country illegally led to a gradual tightening of the immigration legislation. Customs officers gained increased powers to prosecute prohibited immigrants, while the burden of proof was shifted onto suspects to prove their legal status.

List of prohibited immigrants issued by the Home and Territories Department, 8 September 1921

NAA: A1, 1923/13157, pp.24–26

Detective Inspector Maher was the customs officer who investigated Ali Abdul's case. Maher's evidence, tendered at the earlier trials, was presented to the High Court on 14 December 1931. Maher had first questioned Ali on 30 July 1930. After checking the answers Ali had supplied, Maher returned on 26 August 1931 and conveyed the shopkeeper to the Customs House for further questioning.

Copy of the evidence presented by Thomas Victor Maher, Customs Officer, at Ali Abdul's trial before the Central Police Court in Sydney, 23 September 1931

NAA: A10071, 1931/60, pp.10–12

Record of interviews with Ali Abdul conducted by Thomas Maher, Customs Officer, on 29 July 1930 and 26 August 1931

NAA: A10071, 1931/60, pp.42–44

Maher explained to Ali that his responses had proved unsatisfactory. 'I am therefore going to submit you to a dictation test of not less than fifty words in the English language,' he continued, 'My name is Thomas Victor Maher, I am a Customs Officer acting under the Immigration Act. The first reading will simply be for the purpose of enabling you to get the swing of it. On the second reading I will expect you to write out the passage and if you fail to do so I will deem you to be a prohibited immigrant.' Ali failed the test and was taken to the Water Police Station and charged.

Unfortunately for Ali, he could not recall with any accuracy the name of the ship from which he claimed to have disembarked. Nor did he appear on the passenger lists of several ships that had moored at Australian ports at the time. Under amendments to the Immigration Act, the only way the defendant could disprove the prosecutor's assertions was by providing such information.

Maher believed that Ali Abdul was a stowaway who had landed in Brisbane sometime between 1915 and 1917, long after Commonwealth legislation restricting immigration had come into force. In Maher's eyes Ali was dissembling when, under interrogation, he stumbled over various ships' names.

Tracing Ali's movements around the country and checking where he claimed to have worked was a mammoth task. Maher admitted that in some cases the relevant records had been lost. In other cases, people who needed to be traced were either dead or had moved on. Maher provided the court with evidence of his inquiries, maintaining that Ali's claims could not be substantiated.

Memorandum from Thomas Maher for the Boarding Inspector, NSW Customs and Excise Office, detailing claims made by Ali Abdul requiring further investigation, 4 August 1930

NAA: A10071, 1931/60, pp.46–7

Memorandum from the Boarding Officer, Customs and Excise Office, Brisbane, describing the results of his enquiries into Ali Abdul, 28 August 1930

NAA: A10071, 1931/60, p.50

Adding weight to the Crown's case was the evidence of an Indian named Rhamut Khan. After swearing on the Qur'an, Khan testified that he had met Ali in 1916 or 1917 in South Brisbane. Ali had just stepped off the boat, Khan inisisted, and was wearing Indian attire that he soon after exchanged for western-style dress. Later it emerged that Khan owed Ali money and the two men were not on good terms. Under cross-examination, Khan admitted that he had once been arrested for drinking, and on his own volition had gone to the Customs officers after meeting Ali Abdul in Sydney.

Copy of evidence presented by Rhamut Khan at Ali Abdul's appeal to the Court of Quarter Sessions, November 1931

NAA: A10071, 1931/60, pp.26–8

Ali's defence

At the time of his arrest, Ali Abdul was a small businessman, with a confectionery and fruit shop at 136 Abercrombie Road, Redfern. But he still remembered his early years in Australia, when he hawked fruit and took on whatever work he could find. Born in Lahore in 1874, Ali claimed to have embarked from Bombay, reaching Melbourne via Colombo around 1898.

'I came on a ship called Valletta or Rosetta. I really forget the name,' Ali testified, 'When Mr Maher questioned me he closed all the doors and windows and I took a fit and he had to bring me water. I mentioned four or five names to him.'

Copy of the evidence presented by Ali Abdul at his trial before the Central Police Court in Sydney, 23 September 1931

NAA: A10071, 1931/60, pp.12–15

Ali explained that he had paid his passage to a man wearing a uniform. He was 'like a boss over the sailors', Ali noted, and he had told the trusting Indian, 'give your money and I will take you to Australia'. Ali had asked about ticket, but despite the man's assurances a ticket was never supplied. Ali insisted he had made no attempt to evade authorities, and had willingly submitted himself to a medical inspection on his arrival in Melbourne.

Copy of evidence presented by Ali Abdul at his appeal to the Court of Quarter Sessions, November 1931

NAA: A10071, 1931/60, pp.29–33

In an attempt to prove that he had entered Australia before 1901, Ali provided a long list of districts, towns and cities in which he had worked – sometimes for a few weeks, sometimes for a few years. He had lived the life of an itinerant worker who scrambled for a makeshift living.

After leaving Melbourne he worked for a Chinese gardener in Seymour for two years, then moved to Corowa working as a wood cutter for a Mr Wallace for 18 months. From there he went to Braidwood, where he first met the Croaker family (Mrs Croaker was a witness). Later he moved to Sydney with Wallace, selling fruit until he moved back to Queensland cattle droving, again in the company of Wallace. After his droving days were over he shifted to South Brisbane where he lived for eight years. For three of those eight years he worked for two other Indians, 'for my tucker and clothes'. This was followed by five years working all around Queensland. Later he went back to Sydney and worked for two years in Coff's Harbour and Macksville. The outbreak of war saw Ali back in Brisbane, working at Mr Fatteh Mahommed's shop 'selling quilts, teapot cosies and mosquito nets'. The list of town names continued: Brisbane, Gympie, Longreach – hawking and labouring.

The court transcript of 1931 provides only the answers and not the questions put by opposing counsel, but clearly at one point in his cross-examination the Prosecutor attacked Ali's character by suggesting that white women had visited him at his shop, and that he fathered an illegitimate child. Ali denied these claims. 'No white woman was accustomed to visit my shop in Wagga', he insisted.

Ali also disputed some of answers Maher had recorded from his interview. Yes, he had signed the document Maher had placed before him, but he was suffering from a 'fit', and sometimes could not understand the questions Maher put to him.

Old friends and hard times

Mrs Annie Emma Croaker was a 60-year-old widow, who had borne eleven children. She gave evidence that she and her husband first met Ali around the turn of the century, at their home between Goulburn and Braidwood. Her husband, a fettler on the railway, met Ali in the bush, took a shine to the young man, and brought him home. Ali earned his keep by chopping wood and cleaning up the place, and slept in a shed at the back.

Copy of the evidence presented by Annie Emma Croaker at Ali Abdul's trial before the Central Police Court in Sydney, 23 September 1931

NAA: A10071, 1931/60, pp.16–17

'I fix the time,' she said, 'because I had a baby at home, a baby in arms. I also had another child at that time. She was nearly 12 months old then. I think from memory that she was born in 1899.' From this time on, Emma Croaker told the court that she and her husband met Ali periodically; at first every two or three months and then intermittently every few years. 'My daughter worked for him at a shirt factory in Burwood three or four years ago. He has always born a first class character,' she testified, 'My husband became fairly fond of him. My husband talked to him when they were both home. They mostly yarned outside.'

Under cross-examination the widow refused to change her story: 'I am not a friend of Indians. They do not visit my place, nor do I visit Indians' places. No Indians visit my home.' Her answers rejected the insinuation that only a woman of low moral standing, used to consorting with Indian men, would give evidence for someone like Ali.

Victor Joseph Phillip's sworn deposition declared that he was born in 1886 at Dubbo. When he was about 14 years old, he remembered Ali Abdul buying fruit from his brother and him at the old Belmore Markets. In later years, Ali became a regular customer. 'He was very straight and upstanding then and made an impression on me', Phillip maintained, 'I used to give him credit. He could get credit from anyone in the Markets which is saying something.' Off and on, over 20 years, Ali Abdul came to buy fruit which he then peddled. Under cross-examination, Phillips insisted that the man he first met in 1900, and then again seven years later, were definitely one and the same.

Copy of the evidence presented by Victor Joseph Phillips at Ali Abdul's trial before the Central Police Court in Sydney, 23 September 1931

NAA: A10071, 1931/60, pp.17–18

Witness number three, Anthony Howley, a native of Syria, recalled meeting Ali seven or eight years before his marriage in about 1907.

Ali's last witness, Gerald McElligott, also testified that he had known Ali for three decades. They first met when Ali was working for 'Jimmy' the Chinese gardener in Seymour and earning tobacco money on the side by 'performing as a minstrel'. 'Boys would gather round him in the evening,' he elaborated, 'There were other coloured men there. I saw him for several weeks until the novelty wore off.'

Copy of evidence presented by Gerald McElligott at Ali Abdul's appeal to the Court of Quarter Sessions, November 1931

NAA: A10071, 1931/60, pp.34–5

The two young men saw each other on and off in different country towns over the next 12 years. Under cross-examination, McElligott could not be budged – he had first met Ali before 1901. 'The reason why I noticed him was that he was a black man,' he explained, 'I have not seen a colored [sic] man with a personality like this man. He had tambourines and would do what may be called singing.'

When, after many years, they bumped into one another at the Sydney Hospital, where they were both outpatients, Ali said to him: 'Some people have been telling untruths about me. Will you come and tell the truth about me?'

Why did Ali Abdul's Australian witnesses come to his aid? They had only met one another intermittently over the years and could hardly be described as friends. Yet these people went out of their way to help the Indian shopkeeper. The social distance separating people on the basis of skin colour was widespread at the time. What could Ali Abdul and these ordinary Australians possibly have in common?

Perhaps it was a case of respect for a decent hard-working chap. Perhaps they shared similar values. Ali, while not an 'Aussie battler' in the strict sense of the word, was nevertheless a man who, like themselves, knew all about hard times. These were the men and women whose families were hit by the Great Depression of the 1930s. Many unemployed men had been forced into an itinerant lifestyle, doing odd jobs and living from hand to mouth, just as Ali had done for the first decade of his life in Australia.

The verdict

Ali's lawyer argued that the evidence showed that his client had arrived before 1901 and that it was therefore invalid to apply the provisions of the Act to him. 'Immigration before the Constitution was established', he maintained, 'is not within the legislative powers of the Commonwealth'. Judge White, in the Court of Quarter Sessions, had dismissed the appeal on the grounds that the only 'personal evidence' the act seemed to allow were the details of the ship upon which the defendant had arrived.

Reasons for the judgment of Judge White in dismissing Ali Abdul's appeal before the Court of Quarter Sessions, November 1931

NAA: A10071, 1931/60, pp.38–40

However, the three presiding judges of the High Court found that the appeal judge had erred. If, as the Judge White had admitted, the evidence did support Ali's claimed date of arrival, then Ali could not be considered an 'immigrant' under the terms of the act. Therefore the stipulations as to proof could not be applied to him. Ali was released from gaol and the Commonwealth government ordered to pay the costs of his case.

Document registering the High Court's verdict in favour of Ali Abdul's appeal, 14 December 1931

NAA: A10071, 1931/60, p.25

Judgment on Ali Abdul's appeal by the High Court of Australia, 14 December 1931

NAA: A10071, 1931/60, pp.5–6