Indigenous Law Bulletin
by Ken Inglis
Black Inc 2002
reviewed by Hal Wootten
In 1961 a young academic historian, Ken Inglis, published an account of the arrest, trial and sentence to death of Max Stuart for the rape and murder of a nine year old white girl at Ceduna in South Australia, and of the ensuing campaign that led to the commutation of his sentence and the appointment of a royal commission. Now Inglis has republished the original text unaltered, but with an epilogue covering what has since come to light and what has happened to the main participants.
The juxtaposition of two texts written by the same historian at a 41 year interval provides a fascinating opportunity to see how historiography, law, culture and politics changed in the second half of the twentieth century. The 1961 account was unusual in that a professional historian was writing not as a result of poring over records or oral histories but almost as a fly on the wall. Inglis had managed to find a menial role in helping Stuart’s representatives that gave him access to the royal commission hearings and contact with many of the participants as events unfolded. He also moonlighted as a journalist reporting events on a weekly basis. Like a good modern (but not yet post-modern) historian he wrote impersonally and objectively, carefully separating his factual narrative from his comment. By contrast the epilogue is much more personal, discursive and interpretative, and starts by revealing and positioning the author.
The legal context of 1958 is barely recognisable. There was no legal aid for anyone, let alone an Aboriginal charged with rape and murder, except the pro bono services of a practitioner who had no funds for expenses incurred. Yet this practitioner was judicially criticised for not interviewing potential alibi witnesses who were wandering around Australia, and who might or might not have something relevant to say. He should, he was gravely told, have asked the police to locate them – the police whose version of events might be challenged by these very witnesses. (Ultimately the search for them was financed by Rupert Murdoch’s newspaper – he then had only one.)
Today it would seem incredible that police would ask a court to accept, in the face of allegations of violence, a typed confession in good English from an unaccompanied illiterate Aboriginal. The confession was obtained by six officers while an available welfare officer was not invited, and did not seek, to speak to the Aboriginal. Yet not only did the Premier dismiss the allegations of police misconduct as incredible in Parliament, but the Chief Justice described them as ‘rubbish’ when they were advanced at the Court of Criminal Appeal. The Chief Justice then sat as chair of the royal commission of which the trial judge was also a member.
These are only small illustrations of the many reasons why few people today could regard the proceedings as a satisfactory determination of guilt. However, the royal commission had no doubt that Stuart was guilty and properly convicted. When the first edition of the book appeared Stuart was serving a life sentence in Yatala prison.
When the second appeared he had served the Central Land Council for 16 years. First as a field officer, then as an elected delegate and executive member, and finally as chairman from 1998 to 2001, in which capacity he welcomed the Queen to Alice Springs. He had been the men’s cultural director of the very successful 2001 Yeperenye Federation Festival. He was also the subject of a feature film Black and White, which concluded with his much quoted remark:
Yeah, some people think that I’m guilty and some people think I’m not. Some people think Elvis is still alive, but most of us think he is dead and gone.
Few people reading this book today would think Stuart was justly treated or properly convicted, but only the bold would venture a firm opinion as to whether he was guilty or innocent. Inglis thought in 1961, and still thought in 2002, that Stuart was probably guilty. If he was, he paid his debt to society and emerged a different man. If he was not, he suffered a great injustice, but one that perversely may have been responsible for his living a much longer, healthier and more productive life than he seemed to be headed for when arrested.
Inglis has gleaned what he could about the process of transformation in Stuart’s life, but one would like to know more. We have learnt less in the last 40 years in the area of reducing and rehabilitating the enormous and increasing number of Aboriginal prisoners than we have about improving police and judicial practices.
A minor role that I played in the campaign on Stuart’s behalf enables me to correct a detail in Inglis’ account. After flying to Adelaide to investigate the matter for the Australian Association for Cultural Freedom, I flew to Melbourne to persuade the Association’s president, Sir John Latham, to intervene. He did so by calling on the Premier Sir Thomas Playford (‘Dear Tom’ his note began) to reprieve Stuart while new evidence was investigated. Inglis erroneously has me visiting Latham at a later time to discuss a second statement. For a relatively junior barrister it was an unforgettable experience to ask the formidable retired Chief Justice to intervene publicly in a situation where the courts were under criticism.
Hal Wootten is a retired judge of the New South Wales Supreme Court. He was the founding Dean of the University of New South Wales Law School, and a Royal Commissioner into Aboriginal Deaths in Custody.
 Ken Inglis, The Stuart Case (2002) 87.