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Judgment in black and white

By MICHAEL KIRBY

Justice Michael Kirby sits on the High Court of Australia

1 August 2002 - Recently the Australian movie Black and White had its world premiere in Sydney. It will be in the cinema near you towards the end of this year. Every Australian judge and magistrate should see it. It should also be of interest to many other citizens.

The film tells the story of Max Stuart, a near-full-blood Aboriginal who was convicted of the murder of a nine-year-old girl at Ceduna, South Australia, in December 1958. The only real evidence against him was a typed confession, signed after he was interrogated by six police. Stuart later said the confession was forced out of him.

The film tells of the trial, the appeals to the High Court and Privy Council, a Royal Commission and the eventual commutation of the death penalty imposed on Stuart after the jury found him guilty.

The High Court refused to receive evidence from an expert in the Aranda language, Professor Ted Strehlow. He had said that Stuart's alleged confession was incompatible with his poor command of the English language.

The Court said that, generally, it would not receive fresh evidence on appeal. Yet despite dismissing Stuart's legal points, the High Court judges confessed that ''certain features of this case have caused us some anxiety''. They none the less confirmed the death sentence and the Privy Council in London refused to intervene.

The resulting public concern was picked up by an ambitious young newspaper proprietor in Adelaide, Rupert Murdoch. As a result, a Royal commission was appointed. Astonishingly, the presiding commissioner, Sir Mellis Napier, had, as Chief Justice, confirmed Stuart's conviction on appeal. A second commissioner was the trial judge, Sir Geoffrey Reed. Viewed with today's eyes, this was a flawed process of review.

Unsurprisingly, the commission's report did not quieten the concerns about Stuart's conviction. Yet he served a long prison sentence before being released on parole this only after the chairman of the Parole Board, Sir Roderic Chamberlain, was required to stand aside. He had been the Crown Prosecutor at Stuart's trial.

The film shows that the Australian legal system 40 years ago had a lot of safeguards built into it although they did not always work well. More importantly, a comparison with our legal system today shows that many things have improved to repair the defects highlighted in the trial of Max Stuart.

The laws and practices of Australia are less discriminatory against Aborigines. The Aboriginal Legal Service has been established. The follow-up to the Royal Commission into Aboriginal Deaths in Custody appears to have reduced the incidence of those tragic fatalities.

But Aboriginal imprisonment in Australia is still disproportionately high. We still have a long way to go. However, overt prejudice, never far from the surface in Max Stuart's trial, is now less common in the legal scene.

A prisoner such as Max Stuart, facing such a serious charge, would today undoubtedly be entitled, if without means (as Stuart was), to proper and effective legal aid. This is a consequence of the rule laid down by the High Court in Dietrich's case in 1992.

The somewhat peremptory way in which the courts of 1959 dealt with Stuart's complaint about the circumstances in which the confession was taken from him would today have had to run the gauntlet of the High Court's rulings in McKinney's case in 1991.

The Court there laid down the rule that wherever police evidence of a confession made in custody is disputed and its making is not reliably corroborated (as by sound or video recording) the judge should warn the jury of the danger of convicting on the basis of that confessional evidence alone.

Although Strehlow's evidence would not have been available in the High Court even today, it seems unlikely to me that the Court would now adopt such a formalistic approach as it did in 1961. Further, the highly partisan approach of the prosecutor at the trial, and even in the High Court, would, I suspect, today have attracted more than a verbal rebuke.

Courts in Australia have also developed principles to protect litigants from incompetent counsel. I do not say that those principles would necessarily have applied in Max Stuart's case. But where a person is denied a fair trial because of seriously flawed legal representation, the courts do not now wash their hands.

There are also advances in technology. Such advances affect the way in which confessional statements are recorded. But they now extend to DNA and other scientific evidence to reduce the risks of wrongful convictions.

In Max Stuart's case, hairs had been found under the victim's fingernails. Samples were taken of Stuart's hair. But in 1958 and 1959, such scientific tests were in their infancy. Today, they would probably have proved determinative.

The fundamental lesson that judges and magistrates should draw from watching Black and White is that formalism is not enough. A
devotion to justice is imperative. I regard it as a sobering discovery to learn from Black and White that the real saviour of Max Stuart's life was not the Australian court system. It was the chance decision of a young media personality who shared the ''good deal of anxiety'' about the case which the courts either did not see or would not, or could not, act upon.

No system of human justice is perfect. The improvements we have made in the past 40 years by no means removed the possibility of miscarriages of justice or wrongful convictions. To the very end, no- one really knows for certain whether Max Stuart was guilty or innocent. But the conduct of his prosecution, trial and appeals were not a shining moment in Australian legal history.

It is therefore right that his case should be portrayed and his story retold to a national and international audience. It is a good and brave country, with strong institutions, that learns from past errors and adopts reforms to avoid their repetition.

Justice Kirby is on the High Court of Australia.

clip from: The Canberra Times

When justice miscarried at the governor's pleasure

7 June 2002 - Black and White, which opened the Sydney Film Festival, does not take a position on whether Max Stuart was guilty or innocent of rape and murder. Evan Whitton does.

Whatever may be said of the post-1960 Rupert Murdoch, he saved Max Stuart from the gallows in 1959 and hence, as I believe, saved everyone involved from the stigma of killing an innocent man.

The key facts are simple. Mary Hattam, 9, was raped and murdered in a cave near Thevenard, 768 kilometres from Adelaide, between 2.30pm and 3.30pm on Saturday, December 20, 1958. Stuart, 27, ran the darts stall at the Funland Carnival at Ceduna, three kilometres away, between 2pm and 4pm. Three witnesses continually had him in sight, but Chief Justice Sir Mellis Napier made sure no jury ever heard that.

The carnival moved east next day, but Stuart (brilliantly played by David Ngoombujarra in the film of his trial, Black and White) stayed in Ceduna and at midnight on the Monday, fearing for his life, signed a confession for Detective Sergeant Paul Turner. Police swore it was in his "exact words" 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."

At the trial in April 1959, the only evidence against Stuart was the disputed "confession", but there was no evidence for him; neither defence solicitor David O'Sullivan (played by Robert Carlyle) nor prosecutor Roderic Chamberlain, QC (a knockout performance from Charles Dance) had tried to find the carnival people. Stuart was convicted and sentenced to death. At the (failed) appeal, Napier said it was "utter rubbish" to say police would intimidate a suspect.

Father Tom Dixon (Colin Friels) had worked in the Aranda country of central Australia. He realised the confession was a concoction, and Murdoch's organ, The News, bankrolled his search for the carnival people. He found them at Atherton in July and took statutory declarations. Betty Hopes (who does not appear in the film) had been on the skittles in the same tent with Stuart. She declared: "Max did not leave the stall all the time and he was in full view of me." Norman and Edna Gieseman said: "The only time we saw him [Stuart] was from two to four."

Forced to hold an inquiry, the Premier of South Australia, Tom Playford, improperly invited Napier to head it. Napier improperly accepted, and Stuart's counsel, Sydney silk Jack Shand, walked out after three days. Murdoch himself wrote the splash on August 20:

"Mr Shand, QC, 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. He changed the sentence to life but there was no retrial. In December 1959, Napier and his brother judges said the conviction was wholly justified. That's where the film ends.

But 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 Englishwoman, Isabel Roads, known as Miss Penny, began to visit him, but the dreaded Chamberlain 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 myself interested in historian Ken Inglis's book on the case. Hugh Hudson, minister for education in the Dunstan government, got us into Yatala Jail in January 1972, and Noela, who later wrote for The New York Times, conducted the first interview with the condemned man.

She had no doubt he was innocent.

I was to do the minor interviews and the writing, but Playford told me he would like a call from Ken May, who had been Murdoch's assistant manager in 1959 and was now his 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 to Noela. She arranged for her account in the small-circulation pamphlet The Digger to be put on the news 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 said: "I would have pulled the lever myself."

The Melbourne Herald was not quick but it got there. When it finally published those plangent words in April 1973, Chamberlain could not sit on Stuart's case and Stuart was paroled in October. He wrote to Miss Penny: "A very big thanks to God and NW [Noela Whitton]." He is now chairman of the Central Australian Land Council.

Black and White's scriptwriter, Louis Nowra, says: "We don't say that he was [guilty] or that he wasn't", but the film tells us, almost in spite of itself, that justice for Stuart and others demands a body like England's new Criminal Cases Review Commission. In four years, its reinvestigations have caused nine murder convictions to be quashed, including those of Derek Bentley and Mahmood Mattan, who were hanged.

Evan Whitton has written six books on corruption in politics, police forces and the legal system. The latest is The Cartel: Lawyers and Their Nine Magic Tricks.

Source: Sydney Morning Herald

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