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[This edited version of the article has been prepared by Dr Robert N Moles]

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An Argument for an Australian Criminal Cases Review Commission by Evan Whitton: Saved From The Hangman’s Rope

Annals Australasia June 2002

Father Tom Dixon MSC and Rupert Murdoch saved an innocent man, Rupert Max Stuart, from the Adelaide gallows 43 years ago. Evan Whitton recalls the case, and assesses the film, Black and White, based on it.

Sir Mellis Napier (1882-1976) was Chief Justice of South Australia from 1942 to 1967. In 1951, he signed on for a campaign against “moral and intellectual apathy”, but at the end of the decade there was sadly still plenty of it about in the law, politics and the police force.

Mary Hattam, 9, was raped and murdered in a cave near Thevenard, 768 km from Adelaide, between 2.30pm and 3.30pm on Saturday, December 20, 1958. Between 2pm and 4pm that day, Max Stuart, 27, ran the darts stall at the Funland Carnival at Ceduna, three kilometres away, and three carnival workers continually had him in sight, but Napier made sure no jury ever heard that.

Stuart stayed in Ceduna when the carnival moved east next day, and at midnight on the Monday, fearing for his life, signed a “confession” for Detective-Sergeant Paul Turner. Police swore it was in the “exact words” dictated by Stuart, but it wasn’t even a competent verbal: he spoke pidgin Aranda-English; it had him saying things like: “The show was situated at the Ceduna Oval.”

It is unlikely that this would have happened in the investigative system invented, or reinvented, by Lotario, Cardinal di Segni, in 1190, accepted by the church at the Fourth Lateran Council convened by Pope (as Cardinal di Segni had become) Innocent III in November 1215, and then adopted by European secular courts. In major cases today, a trained investigating judge supervises the police and questions the suspect. (England rejected the truth-based system in 1219.)

The Law Society told an Adelaide solicitor, David O’Sullivan, to represent Stuart for nothing. O’Sullivan did his best, but it was not very good. He did not get an Aranda expert to provide a clear statement from Stuart; he did not discern that the confession” was a fabrication; and he did not try to find the carnival people.

In theory, O’Sullivan had an advantage at the trial in April 1959. Lawyers had got control of the system in the 19th century and created so heavy a bias in favour of lawyers and wealthy criminals that in serious cases more than 50 per cent of criminals get off. However, the adversary system’s emphasis on winning can cut both ways: at least 10 in 1000 of people in prison are innocent. (With great respect, I believe the church’s justice committees could do more to request justice in the legal system.)

The Prosecutor, Roderic Chamberlain QC, seems to have been in the mould of the Sydney barrister who said: “Justice is when I win.” It was also his last case before going on the bench. The only evidence he had against Stuart was the disputed “confession”, and it had been established that the only time the girl could have been killed was between 2.30pm and 3.30pm, but there was no evidence for Stuart, and he was found guilty.

Queensland, enlightened State, had abolished the death penalty in 1922, and NSW followed in 1955, but it was still on the books in the other States. Justice Sir Geoffrey (Doggy) Reed sentenced Stuart to hang.

At the appeal, O’Sullivan argued that Stuart “said ‘Yes’ to anything because he thought he was going to be killed”. Napier CJ observed: “That is utter rubbish.” He and two other learned judges, Sir Herbert Mayo and Mr Justice Abbott, dismissed the appeal without leaving the bench. Harry Alderman QC advised O’Sullivan that there were no grounds for a further appeal. Stuart was to hang on 22 May.

Father James O’Loughlin, who did chaplaincy work at Adelaide Gaol, had difficulty in talking with Stuart, and asked Father Tom Dixon to speak to him. Dixon had worked at Palm Island, the nearby leper station at Fantome Island, Downlands College, Hammond Island in Torres Straits, in Aranda country at Santa Teresa, south-east of Alice Springs, and was now a curate in Hindmarsh parish. His book on the affair, The Wizard of Alice (1987), is the source for some of the following.

Father Dixon saw Stuart on 10 May. He assumed Stuart was guilty and sought “a firm admission of guilt and sorrow”, but after a time became convinced “he knew little about the crime”. He went to O’Sullivan’s office and there read Stuart’s purported confession for the first time. He knew Stuart could not have dictated it and took Ted Strehlow, the authority on the Aranda language, to see Stuart on 18 May. Strehlow and Stuart spoke in Aranda. Later that day Strehlow read the confession, saw it was not genuine, and swore an affidavit to that effect. This enabled O’Sullivan to appeal to the High Court.

That appeal failed as did another to the Privy Council, but the appeals bought Stuart time. Father Dixon was now convinced that the only people who could prove Stuart’s innocence were the carnival people. He put that notion to Stuart, who said: “Yair, ask ‘em, they’ll tell you where I was that afternoon.”

On 20 July, a Sydney Morning Herald reporter, Tom Farrell, persuaded Father Dixon to go public. On 24 July, Rohan Rivett, editor of Rupert Murdoch’s only newspaper, The News, an afternoon tabloid, agreed to finance Father Dixon’s search for the Funland people. He left next day for Queensland with a News reporter, Jack Clark, and they found the carnival at Atherton on Monday, 27 July.

The Funland proprietor, Norman Gieseman, said: “I wouldn’t know anything about [Stuart’s] movements. We only saw him from two till four. That’s when he was at the fun fair.”

“Are you sure?” Father Dixon asked.

“Absolutely sure,” Gieseman replied. “I will stand up to that but to nothing else.”

Mrs Edna Gieseman and Betty Hopes separately confirmed that Stuart was at the carnival from two to four. Ms Hopes, who ran the skittles in the same tent as Stuart said: ‘Max did not leave the stall all the time and he was in full view of me.’ Their statutory declarations forced the Liberal-Country League Premier, Sir Tom Playford (1896-1981), to again postpone the execution and hold an inquiry.

Playford was Premier from 1938 to 1965 because of a merciless malapportionment of votes: a vote in the country was worth two in the city. His Governments had hanged seven people; he was apparently as keen to hang Stuart as his Victorian counterpart, Sir Henry Bolte, was to hang Ronald Ryan in 1967. He improperly invited Napier and “Doggy” Reed to sit as Royal Commissioners, and they improperly agreed. Justice Bruce Ross was the third commissioner. A legal heavyweight, Jack Shand QC, of Sydney, was brought in to appear for Stuart.

A commission of inquiry is supposed to adopt the procedures of Cardinal di Segni’s investigative system, i.e. it is not bound by adversary system rules for concealing evidence. It is not surprising that Napier had little idea of how to run an inquiry into the truth, nor that Shand walked out after three days. Murdoch himself wrote the splash on August 20:

Mr Shand, Q.C., indicts Sir Mellis Napier

‘THESE COMMISSIONERS CANNOT DO THE JOB’

With The News telling the world the fix was in, Playford could not get away with hanging Stuart and he commuted the sentence to life in October. A Melbourne silk, John Starke, eventually appeared for Stuart and he saw the inquiry out, but there was no re-trial; in December 1959 Napier and his brother judges said the conviction was wholly justified.

If getting Stuart into prison and keeping him there were routine perversions of justice, getting him out was quite surreal. He was forgotten until 1968, when an elderly English lady, Isabel Roads, known as Miss Penny, began to see him, but former Justice Sir Roderic Chamberlain (as he now was) had became Chairman of the Parole Board in 1970, and made it plain that he would not release Stuart.

In 1971 Don Hogg, a colleague at Murdoch’s The Sunday Australian, got my wife Noela and me interested in Ken Inglis’s book on the case. Hugh Hudson, Minister for Education in the Dunstan Government, got us into Yatala prison in January 1972, and Noela, who later wrote for The New York Times, conducted the first-ever interview with the condemned man. She had no doubt he was innocent.

I was to do the minor interviews and the writing. When I spoke to Playford, he asked me to ask Ken May to give him a call when I got back to Sydney, and I did that. May had been a political reporter 1945-1959, assistant manager at the News 1959-64, and was now Murdoch’s chairman in Sydney. What hold Playford still had on May remains a matter for speculation, but I was directed to write nothing about the Stuart case

That left it up to Noela. She got her account into a national journal called The Digger in honour of Murdoch in August 1972. She sent half her fee to Stuart; he gave it to Miss Penny to have a medal inscribed Noela on one side and Max on the other.

The Digger’s circulation was minuscule, but Noela arranged for it to be put on the news editor’s desk at every major newspaper in Australia, and two cadets at the Melbourne Herald, Jenni Brown and Pam Graham, shortly lured Chamberlain to his destruction; he told them: “I would have pulled the lever myself.”

The Melbourne Herald was not quick, but it got there. When it finally published Chamberlain’s plangent words in April 1973, he was forced to absent himself from the case, and Stuart was paroled in October. Shortly before his release, he wrote to Miss Penny: “A very big thanks to God and to NW. I thank her and her old man for what they did for me”

Stuart is now Chairman of the Central Australian Land Council.

The Black and Whites scriptwriter, Louis Nowra, says “we don’t say that he was [guilty] or that he wasn’t”. I wonder why they bothered to make the film. A fairly prominent Scottish television actor, Robert Carlyle, was hired to play O’Sullivan, and that role was built up, Shand and Starke were left out, and the film ends at the inquiry.

As Chamberlain, the English actor Charles Dance gives a knockout performance, and I think it would have been more accurate and more dramatic if he had been the main character, if Shand and Starke had been restored, and if the film had continued to the point where the two little (as I think of them) girls from the Melbourne Herald blew Chamberlain away.

Nonetheless, Black and White tells us, almost in spite of itself, that justice for Stuart and others demands a body like England’s new Criminal Cases Review Commission. The commissioners are eight non-lawyers and six lawyers, and they use the techniques of the investigative system: no relevant evidence is concealed. In four years, the CCRC’s reinvestigations have caused nine murder convictions to be quashed, including those of Derek Bentley and Mahmood Mattan, who were hanged.

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