Rather His Own Man

by Geoffrey Robertson

  But just a few weeks later, Princess Anne, the nineteen-year-old daughter of our beloved Queen, saw the show in London and went on-stage to dance with the cast. There were photographs of her in all the newspapers. The Askin government went into crisis mode – to implement a threatened ban on Hair would imply serious criticism of the morals of the royal family, something even more unthinkable than on-stage nudity. Calculating, no doubt correctly, that there were more royalists than there were prudes in the state’s electorate, the government backed off and Harry M. Miller made a fortune from Sharman’s production, which played for years to plane-loads of sex-starved Melburnians at the Metro Theatre in Kings Cross.

  When, some months later, I had the opportunity, I told Princess Anne how she had struck a blow for artistic freedom in Australia by dancing to Hair, and she could scarcely believe it: ‘Can people really be so silly as to ban a musical?’ In Australia in the sixties, they certainly could.

  Imbued with my new-found knowledge of criminology, showing how prohibition drives up the price of harmless pleasures, profits a criminal sub-culture and corrupts law enforcement, I joined the Council for Civil Liberties, an engaging group of liberty-conscious lawyers and academics who would spend weekends roasting pigs (wearing policemen’s hats) at a country property and distributing information, in a badly typed newsletter, about the latest police atrocities. It was the cops, of course, who were making most money out of the legislature’s inability to distinguish between sin and crime: the vice squad operated as God’s police, punishing various forms of immorality outside lawful matrimony, while on a vast subterranean level allowing it to flourish – for a fee, which was incorporated into its cost. We had laws against drinking in pubs after 6 pm (occasioning ‘the six o’clock swill’), but everyone knew where to buy a drink after hours; we had laws against prostitution, but in the laneways of Kings Cross hundreds of sex workers were permitted to ply the trade, molested only by policemen they hadn’t paid.

  When the cops had to deal with kids, however, who had no money, the liberties they took were outrageous. They motivated my campaign against the enforcement of ‘carnal knowledge’ laws against teenagers. Registration of all births, deaths and marriages was compulsory, and when officials at the registrar-general’s office received a birth certificate showing that a mother was under sixteen years and nine months, they called the vice squad. The cops would apprehend the girl, distressed after the birth (or often the adoption) of the baby, and use their power under the Child Welfare Act to force her to name the father – usually a boy who had slipped up through ignorance of contraception techniques, or by playing ‘Vatican roulette’. He would be threatened with public prosecution for the crime of ‘carnal knowledge’ unless he agreed to marry her, whereupon the charge (which carried a prison sentence) would be dropped.

  The cops were in effect forcing ‘shotgun marriages’, and their senior officers boasted that carnal knowledge offences were always ‘cleared up’ (a 99.76 per cent success rate in 1965), enabling them to tell the public that the total clear-up rate for crimes in New South Wales was a respectable 71 per cent. This deliberately hid the less respectable fact that only 36 per cent of serious crimes (murder, rape and theft) were ‘cleared up’.

  In Blackacre, the Law School magazine I edited, I fulminated not only against the police but against public servants: ‘The Registrar-General’s current practice is a scandal – it triggers off a particularly brutal chain of events, which makes for a severe breach of public trust by a government-institution-turned-police-informer.’3

  The rhetoric was true enough, but it lacked any legal focus – there was no privacy law, or respect for privacy, to provide the argument for stopping this abhorrent practice. ‘Dobbing in’ may be un-Australian, but not in the sixties when it was done by bureaucrats to punish sex outside marriage. About a thousand youths under twenty years of age were convicted each year in New South Wales for the consequence of slipshod sex with girls over fourteen, and although I could not be numbered in the class personally affected, the unnecessary cruelty made me angry. No society should permit the punishment of victims, whether of crime or of sexual ignorance.

  There was so much wrong with the law I studied in the sixties that it seemed impossible to practise it without agitating for its reform, or else going into politics to try to change it. Perhaps the worst aspect, in the sense that it affected so many law-abiding people, was the difficulty of ending a broken-down marriage. Although I never practised family law, I was taught its absurdities by Peter Nygh, a clever and clear-thinking Dutchman who could scarcely believe them. Thanks to the pernicious influence of the churches, especially the dogmatic teaching of the Catholic Church that marriages were made in heaven to last forever, divorce was difficult, lengthy and expensive, and destructive of any post-separation collaboration (e.g. over the kids) because it required proof of a ‘matrimonial crime’ – in most cases, adultery. There had to be evidence of stains on the sheets, weekends with a blonde in Surfers Paradise or illicit passion in an FJ Holden parked on a bush road and photographed in grainy silhouette by a private detective up the nearest gum tree. Relationships rarely recovered from this sort of divorce, unless both parties collaborated in committing perjury. There were lots of unhappy marriages, of which Menzies and the leaders of the Liberal and Country parties, over their twenty-year rule, took little notice, blinded by their own pretended belief in ‘Christian values’ and the political power of the hard Catholic Right (exemplified by B. A. Santamaria and his Democratic Labor Party). Marriage, under the constitution, was a power reserved to the federal government, and there is no clearer example of the lack of interest in human rights than that so little was done to remedy the cruelty inflicted by the law of divorce.4 A great reform in 1975 – making divorce a formality after one year’s separation – is owed to two Sydney University graduates of whom the Law School ought to be more proud: Whitlam, and in particular his attorney-general, Lionel Murphy.

  The major flashpoints for university protests in the sixties were capital punishment, Vietnam and discrimination against Aboriginals. The death penalty was by then confined to Victoria, where Henry Bolte and Arthur Rylah believed in destroying bad people as well as bad books. Bolte and Rylah had to be threatened by the High Court with imprisonment for contempt before they forbore, in 1962, from hanging a mentally ill man called Robert Tait; but they succeeded, five years later, in marching escaped convict Robert Ryan to the gallows. He had been captured in New South Wales, and we protested vainly outside the Victorian Tourist Office in Sydney (for Victorians in the sixties, the world was small). Books written about these cases, and the work of the courageous counsel who fought to save the lives of Tait and Ryan, lodged in my mind – they became sources of learning and of inspiration when I became the leading death row defender in the Privy Council between 1975 and 1995.

  The case which had the most lasting influence on me, and on law reform in Australia, was that of Rupert Maxwell (Max) Stuart. It took place in 1959 in South Australia, fiefdom of another long-serving reactionary premier, Thomas Playford. I briefly recount the Stuart story to explain why it drove me not only to take up the case of Nancy Young, but to become a board member of the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI) and to press for reforms to the treatment of Aboriginals in the Anglo–Australian system of criminal justice.

  The raped and murdered body of nine-year-old Mary Hattam was found in a beach cave near Ceduna, north-west of Adelaide, in 1958. Rupert Max Stuart was arrested two days later. He was an outsider, briefly in town for work in a travelling carnival, and he was Aboriginal – a peripatetic member of the Aranda people of Central Australia. During an interview with police – unrecorded – he was stripped naked and at the end signed a typewritten statement in precise, educated English, confessing to the crime. This was the only basis for his prosecution – some tracker evidence about a footprint was inconclusive.

  The local press was hysterical about t
he awfulness of the crime and shared the police confidence in Stuart’s culpability; the judge summed up for a conviction and the South Australian Court of Appeal dismissed Stuart’s appeal. The prosecutor, Roderic Chamberlain QC, the state’s top Crown counsel, later said, ‘I would have hanged him myself; he’s nothing but an animal.’ The young defence lawyer was a solicitor inexperienced in murder trials, and without the funding to obtain expert evidence. The most important came to light only after the trial, from anthropologist Ted Strehlow, who knew more about the Aranda people and their language than any other white Australian. He said that Stuart could not possibly have used the language or the sentence structure of the so-called confession. The High Court refused to order a new trial because the evidence had not been obtained in time, and the Privy Council showed no interest in the case (it never did at this time in cases involving capital punishment). However, when dismissing the appeal, the High Court did note that ‘certain matters in this case give us cause for concern’, a statement that impelled Rohan Rivett, editor of Adelaide’s News, to launch a campaign to reprieve Stuart. His proprietor, the young Rupert Murdoch, approved. The campaign increased both circulation and the pressure on Playford to stay Stuart’s execution until there could be an inquiry. Playford decided that this should take the form of a three-judge Royal Commission, chaired by Sir Mellis Napier (the chief justice of South Australia, who had rejected Stuart’s appeal) and including the trial judge. This was outrageous – two of the three judges were being invited to review their own decisions – but it shows the complacency of reactionary figures like Playford, who believed he could get away with appointing the Adelaide legal establishment to investigate its own behaviour, find itself flawless and proceed to hang Stuart.

  In the meantime, Stuart’s supporters had paid for Sydney’s top QC, Jack Shand, to appear before these biased judges. As he was cross-examining a policeman, suggesting that the confession had been bashed out of the naked and terrified Aboriginal, Napier refused to allow his questions. Then, in the most electrifying moment in Australian legal history, Shand dropped his books loudly on the desk, said that he would no longer by his presence lend legitimacy to a biased tribunal, and walked out. (This is something I have always wanted, and have occasionally been tempted, to do.) Shand took a risk – he was lucky not to have been jailed for contempt. His action actually saved his client’s life, by emphasising to the world that the tribunal was a fix. It surprised no one when it upheld Stuart’s conviction, but because Shand had so dramatically demonstrated its bias, its report did not provide the excuse for Stuart’s execution that Playford had intended when he set it up. He was forced by a public outcry led by opposition MP and later premier Don Dunstan to commute Stuart’s sentence.

  Rohan Rivett then began a campaign for Stuart’s innocence and release from prison. This would not boost the circulation of The News, reckoned young Rupert, so he sacked one of the great heroes of Australian journalism. As for the other Rupert, he served many years in prison before he was let out, but he went on to become an elder of the Aranda people and chair of the Central Land Council, in which capacity he welcomed Queen Elizabeth when she visited Alice Springs in 2000. Asked on television whether he’d murdered Mary Hattam, Stuart replied, ‘Some people think I’m guilty and some people think I’m not. Some people think Elvis is still alive, but most of us think he’s dead and gone’ – which most people took to mean ‘no’.

  The Stuart case lodged in the minds of law students of my generation through a book by Ken Inglis and as part of the remarkable and moving Trial series of paintings by David Boyd.5 For my money (literally – I have bought one of them, as did John Mortimer), they are among the most important pieces of Australian political art, confronting, as they do, ashen-faced judges with the Neolithic masks of defendants to whom their system cannot deliver justice.

  Ten years later, the lessons of the Stuart case had not been learnt. They were, first, that you could not try Aboriginals by the procedures of the law of England. Stuart could not read or write, yet had been denied an interpreter in court and at the police station. Whether or not he had been bashed, his word-perfect confession was obviously unbelievable. No lawyer, social worker or Aboriginal protection officer had been present at his interview, and the fact that he had ended up naked in the interview room demonstrated the need for a recording of his alleged confession. There was no ‘equality of arms’ – his defending solicitor was inexperienced and outclassed by the senior Crown prosecutor. And, most fundamentally, both in police station and court, a defendant was overwhelmed by white authority figures asking aggressive questions to which the easiest response was to acquiesce.

  By the time I studied law, a few years after the Stuart case, those problems remained, and we urged solutions, such as tape recordings of police interviews, improvements in legal aid and support for Aboriginal suspects when they were questioned about serious crimes. The need for these reforms was exemplified by a case we took up in 1969 – that of Nancy Young, an Aboriginal woman convicted by an all-white, all-male jury and sentenced to three years in prison for the manslaughter of her baby, who died – probably of scurvy – on the insanitary Aboriginal reserve in Cunnamulla, a town serving the sheep and cattle country of south-west Queensland.

  The trial was a grave miscarriage of justice from the moment bail was set at a ridiculous amount ($1000, when Nancy was earning $6 a week) to the judge’s summing-up, which invited the jury to convict because Nancy had not given evidence (on her counsel’s advice, because he feared she would be overwhelmed and simply acquiesce to questions in cross-examination). There was no credible evidence that she had malnourished her four-month-old child, who appeared to have died of disease, and the prosecution failed to obtain expert medical evidence which might support its case of deliberate neglect. This case was weak enough – the local hospital had not provided prompt or proper treatment when Nancy brought the child in from the squalor of the reserve where Aboriginals were obliged to live, out of sight and out of mind. Aboriginal child mortality was six times that of white children, and Nancy’s prosecution was a reflection of racist attitudes in the town, which assumed that the fault belonged to Aboriginals for the refusal by authorities to provide them with proper housing and health conditions.

  Fortunately, an ABC reporter, Frank Bennett, had been tipped off and a ten-minute segment about the trial and attitudes in the town featured on This Day Tonight. I happened to catch it, and was outraged enough to organise, with David Marr, a protest meeting at the Law School. We needed Frank Bennett’s film to kick it off, and ideally Frank Bennett. He was happy to come, but the general manager of the ABC, Talbot Duckmanton (I had not previously encountered anyone whose first name was Talbot) muzzled Bennett and refused to make a copy of the film available. We defied him by obtaining a pirate copy of the program. It came without a soundtrack, which was not at first sight a problem because we had a copy of the script. At the protest David and I decided to sit in the projection box with a microphone and lip-sync our readings to the characters on the screen. The ruse worked well as we mimicked Frank Bennett talking to lawyers, but then came an interview with two unkempt Aboriginals from the reserve. The audience burst into laughter, and were soon rolling in the aisles – David and I had the two most plummy, Pommified voices in town.

  However, the injustice of Nancy’s trial and incarceration was publicised, and in Queensland the public defender finally obtained some expert evidence from the state’s top paediatrician. He concluded that it was reasonably possible that the death had been caused by a birth deficiency that was no fault of Nancy’s and had been hastened by incorrect treatment at the hospital. This, we thought, would be fatal to a conviction that had to be proved beyond reasonable doubt, but almost inconceivably three cloth-eared judges on the Queensland Court of Appeal refused to hear it. They used the same argument as the High Court in Stuart’s case – that the evidence could have been called at trial. But unlike the High Court, they did not have the decency to express a
ny concern. It was a shameful performance, and it attracted the attention of Four Corners, which devoted a program to proving that the baby’s death was not caused by Nancy. The chairman of the local council expressed sentiments which would have been shared by other whites, both in the town and in the jury room: ‘Aborigines, I think, have the motto “Something for nothing”. They don’t get very much for nothing, I’ll admit that too. I think you’ll find if you poke down there in their reserve, they are pretty happy in their environment.’ The program ended with a close-up of the baby’s rough grave, with a table of Aboriginal infant mortality superimposed.6

  The effect was so powerful that the disgraced Queensland judicial establishment had to act: a new Court of Appeal bench was hastily rustled up and a petition for Nancy’s pardon referred to it, with a statement by another expert confirming the evidence disregarded at the earlier appeal. Nancy was declared not guilty and released from jail a week before she would have completed her sentence – with no compensation for her wrongful imprisonment.

  The Nancy Young case, and the extraordinary behaviour of the Queensland bench, was too outrageous to be allowed to rest in the obscurity that the second Court of Appeal verdict was designed to secure. With fellow student John Carrick I wrote an article for the Australian Quarterly which drew comparisons with the Stuart case and stressed the need for Aboriginal legal services and changes in court procedures to give Aboriginals a chance of a fair trial.7 It was an important lesson for me, that justice will not be done unless injustice is seen to be done. Judges are experts at twisting facts, manipulating legal doctrines and giving good impressions of a fair trial, which can fool the public. When they go wrong it takes committed lawyers working with insightful journalists to unravel the errors.