Rupert Maxwell (Max) Stuart ( – 21 November 2014) was an Indigenous Australian who was convicted of murder in 1959. His conviction was subject to several appeals to higher courts,R v Stuart [1959 SASR 144, Supreme Court (SA). the Judicial Committee of the Privy Council, and a Royal Commission, all of which upheld the verdict. Newspapers campaigned successfully against the death sentence being imposed. After serving his sentence, Stuart became an Arrernte elder and from 1998 till 2001 was the chairman of the Central Land Council. In 2002, the feature film Black and White was made about the Stuart case.
Early life
Stuart was born at Jay Creek in the MacDonnell Ranges, 45 kilometres west of Alice Springs in the Northern Territory, probably in 1932. It was a government settlement which for a time in the late 1920s and early 1930s included 45 children from a home named "The Bungalow" (37 of whom were under the age of 12) who were all temporarily housed in a corrugated shed, with a superintendent and matron housed separately in two tents. Jay Creek was home to the Western Arrernte people. In 1937, Jay Creek was declared one of three permanent camps or reserves for the Alice Springs Indigenous population. It was intended as a buffer between the semi-nomadic people living in far western regions and the more sophisticated inhabitants of Alice Springs and environs, in particular for the non-working, aged and infirm around Alice Springs.
Legally, Stuart was a "half-caste" as one of his maternal great-grandfathers had been a white station owner. Stuart's paternal grandfather had been a fully initiated Arrernte and leader of a totemic clan. His father, Paddy Stuart, was also fully initiated, but as he had assumed an English surname and worked on cattle stations had not had all the secret traditions passed on to him. Max Stuart himself was fully initiated which, in 1950s Australia, was very rare for an Indigenous Australian who worked with white people. Although his sister attended the mission school, Stuart refused and had very little "western" education or knowledge of Western religion. At the age of 11, Stuart left home to work as a stockman around Alice Springs. As a teenager, he went on to work as a bare-knuckle boxer and for Jimmy Sharman's boxing tents. In late 1958, he was working on the sideshows of a travelling fun fair. He was mostly illiterate and had problems with alcohol.
In late 1957, Stuart had been convicted of indecently assaulting a sleeping nine-year-old girl in Cloncurry, Queensland. In that case, he had covered his victim's mouth to prevent her screaming when she awoke; he confessed to police that he "knew this was wrong" but he did not "know any big women", and that when he had liquor he could not control himself.
The crime On Saturday 20 December 1958, Mary Olive Hattam, a nine-year-old girl, disappeared near the South Australian town of Ceduna (pop: 1,200), from Adelaide. Hattam had been playing on the beach between Ceduna and Thevenard with her brother Peter and their friend Peter Jacobsen. The two boys had left at 2:30 pm to collect a tub to use as a boat but had been distracted and failed to return. At 3:45 pm Jacobsen's father, who had been fishing, pulled his boat up at the beach where Hattam had been playing but there was no sign of her. Hattam's father went to the beach at 4 pm to collect her and then called on some neighbours to help search without success. As evening fell, Roger Cardwell, who ran the local deli and was married to Mary's cousin, alerted the local police and Ceduna citizens, who were watching Dial M for Murder in the local Memorial Hall. The film was stopped mid reel, a search commenced and Hattam's body was found in a small cave at 12.30 am. According to the attending doctor she had been raped, mutilated and murdered between 2.30 pm and 8 pm. At 10:30 am, the local police brought in a "black tracker" Sonny Jim, who followed tracks from Hattam's body to a nearby rockpool then back to the body, suggesting the murderer had washed off Mary's blood. He then followed tracks to where a travelling funfair, "Fun Land Carnival", had been on the previous day. The following day police brought to the site another black tracker, Harry Scott, who came to the same conclusions as Sonny Jim. Both trackers claimed that the footprints had been made by a member of a Northern Australian tribe who had spent some time living with white people.
The local Aboriginal community lived at the Lutheran mission at Koonibba, around from Ceduna. As there was little work near Koonibba, many families had moved to a block of land near Thevenard, where around 200 people lived in bark huts. Many had visited the funfair and were questioned by police. Several suspects were brought to the beach but were discounted from being responsible for the footprints by the trackers.
Suspect The 27-year-old Rupert Max Stuart, an Arrernte man, and teenager Alan Moir had been in Ceduna on 20 December, running the darts stall for the funfair operated by Mr and Mrs Norman Gieseman. Both had gone out drinking during the day and Moir returned late that night, losing consciousness several times due to intoxication. Stuart had been arrested for drinking alcohol at 9:30 pm and was in police custody. This was because, at the time, "full-blooded" Aboriginal people were forbidden by law to drink alcohol. In 1953 a federal ordinance had been passed that permitted "half-castes" to drink, but they were required to apply for a "certificate of exemption". These were commonly referred to as "dog licences" by Aboriginal people. Stuart had been jailed on more than one occasion for supplying alcohol to "full-bloods". The ban was rarely enforced in rural towns. However, since 1958, Ceduna had been combating a perceived alcohol-related "native problem" and was enforcing the alcohol ban. Although he was not drunk, Stuart had not renewed his certificate, and when arrested for drinking, was facing a sentence of 6 to 18 months in jail. He was released without charge as police resources were being dedicated to the Hattam investigation.
When Stuart returned to the fair after being released the next morning, he had an argument with the Giesemans over getting 15-year-old Moir drunk and was fired. News of the murder had not reached the funfair, which packed up on Sunday morning and moved on to Whyalla, where police interviewed the workers that night. Police interviewed Moir, who claimed that he and Stuart had been drinking with several "half-castes" in Ceduna on Saturday morning. He had returned to the funfair at 10 am then left again at 1 pm. He told police he had seen Stuart, drunk, outside the Memorial Hall with "some other darkies". Police contacted Ceduna to question Stuart about the murder.
The Stuart case When picked up on Monday, Stuart was working for the Australian Wheat Board at Thevenard, 3 kilometres southwest 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 ($0.45) 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 prosecution 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.Remote Justice Keynote address by Justice Michael Kirby Pages 24–29 July 7, 2007
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."