Max Stuart - The Stuart Case

The Stuart Case

When picked up on Monday, Stuart was working for the Australian Wheat Board at Thevenard, 3 kilometres east of Ceduna. During interrogation, Stuart admitted being drunk and travelling from Ceduna to Thevenard on Saturday afternoon but denied the murder. Police took him outside and made him walk barefoot across sand, after which the two trackers confirmed that Stuart's tracks matched those on the beach. Stuart later confessed and, although he could not read or write, signed his typed confession with the only English he knew, his name, written in the block letters that had been taught him by his sister, misspelling his first name as "ROPERT".

Following his confession, Stuart was brought to trial in the Supreme Court of South Australia, with the case opening on 20 April 1959. The Judge presiding was Sir Geoffrey Reed, an experienced judge; Stuart's lawyer was J.D. O'Sullivan, assigned to him by the Law Society of South Australia. When arrested, Stuart had only four shillings and sixpence halfpenny ($0.46) and was thus unable to contribute to the cost of his defence. The Law Society had few resources and was unable to pay for many of the out of pocket expenses required for the defence case, such as checking Stuart's alibi, conducting forensic tests and consulting expert witnesses.

It was claimed the footprints found on the beach matched those of Stuart. A taxi driver testified that he had driven Stuart to the murder scene on the afternoon of the crime. Hairs belonging to the murderer had been found in the victim’s hand and had been visually compared to Stuart's by police. The hairs from the crime scene were introduced as evidence, but no attempt was made by either the prosecution or defence to match them to Stuart’s own hair (the hairs have since been destroyed so cannot now be tested). The case against Stuart relied almost entirely on his confession to the police. Stuart had asked to make a statement from the dock but he could not, as he was unable to read the statement prepared from his version of events. Permission for a court official to read the statement on his behalf was refused, so Stuart was only able to make a short statement in pidgin English: "I cannot read or write. Never been to school. I did not see the little girl. Police hit me, choke me. Make me said these words. They say I kill her." This led the prosecutor to claim that Stuart's failure to give evidence was proof of guilt. Stuart had no choice but to refuse to testify. Under South Australian law, Stuart's prior criminal history could not be brought before the court as it was prejudicial. There were two exceptions; if a defendant under oath presents witnesses for his own good character or impugns the character of a prosection witness, the prosecution is entitled to cross examine the defendant and present evidence to prove his bad character. As Stuart's defence was that police had beaten him then fabricated his confession, to state this under oath would allow the prosecution to present his prior criminal history, including the Cloncurry assault, to the jury.

O'Sullivan suggested that police had forced Stuart into the confession, due to Stuart's poor command of the English language. However, the jury was unconvinced by the argument and Stuart was convicted. In line with the law, Judge Reed sentenced Stuart to death on 24 April 1959. Stuart's application for leave to appeal to the Supreme Court of South Australia was rejected in May 1959. His appeal to the High Court of Australia in June 1959 also failed, although the High Court observed that certain features of this case have caused us some anxiety.

The prison chaplain was unable to communicate with Stuart due to his limited command of English and called in Catholic priest Father Tom Dixon who spoke fluent Arrernte due to having worked on mission stations. Dixon was suspicious about the sophisticated upper class English used in the alleged confession, for example: "The show was situated at the Ceduna Oval." Stuart's native language was Arrernte, he was uneducated, could not read and only spoke a slightly advanced pidgin Arrernte-English known as Northern Territory English. Anthropologist and linguist Ted Strehlow, who had been brought up in Arrernte society and had known Stuart since childhood, also had doubts. After visiting Stuart at Dixon's request on 18 May, was the first person to translate Stuart's alibi from his native tongue. Stuart claimed that he had taken Blackburn's taxi to the Thevenard hotel where he had paid an Aboriginal woman £4 for sex and had remained there until arrested that night. Strehlow also tested Stuart's English. He later swore an affidavit to the effect that the confession could not be genuine, enabling the appeal to the High Court. Ken Inglis, then a lecturer at Adelaide University, wrote in July 1959 of the doubts of Father Dixon and Ted Strehlow in the Nation, a fortnightly magazine. There was further reporting on the case in the Sydney Morning Herald and then Adelaide afternoon newspaper, the News, took up the issue.

Had police claimed the typed confession summarised what Stuart had said there would have been little controversy; however, the six policemen who had interrogated Stuart testified under oath that the document was Stuart's "literal and exact confession, word for word." One of the policemen who interrogated Stuart, chief inspector Paul Turner, stated on his deathbed in 2001 that police had "jollied" and joked the confession out of Stuart, and that once they had it, they bashed him. Fellow police officers denied Turner's claims, and insisted that the confession was verbatim, "Yes, we altered it a bit....but the substance is Stuart’s." Stuart's guilt is still debated.

Stuart's execution date was set for Tuesday, 7 July, and the Executive Council, chaired by Premier Thomas Playford, was due to sit on 6 July to reply to any petitions presented. The Advertiser had devoted all its correspondence pages to Stuart with 75% of writers in favour of commutation. Petitions with thousands of signatures supporting commutation had already been received, but that morning the first petition supporting the execution arrived by telegram. The petition, circulated in Ceduna, Thevenard and the surrounding districts had 334 signatures. The Executive Council sat at 12:30 pm and considered the petitions for 20 minutes before issuing a statement: "The prisoner is left for execution in the due course of the law. No recommendation is made for pardon or reprieve." Stuart was told of the decision and given a cigarette. He was then informed that the execution would take place at 8 am the following morning. Father Dixon was requested to keep Stuart calm and he visited him that night. Asked if he was afraid, Stuart replied he would not be if Dixon stayed through the night, and Dixon agreed to do so. Not long after, Stuart was informed that during the afternoon, O'Sullivan had lodged an appeal to the Judicial Committee of the Privy Council in London and Justice Reed had issued a 14 day stay; this appeal also failed, however.