Keeping Count: Australian Execution Numbers

One of the most pressing—but hitherto unanswered—questions about the history of capital punishment in Australia is a basic one: how many people were executed? Given the size of the task, spanning six jurisdictions and over a century, counting executions in Australia is a challenging exercise.

New South Wales is not only the oldest colony but also the place where the most hangings were carried out. A dataset created by Macnab, Castle and Kaladelfos provides a picture of execution numbers for the jurisdiction. It lists 964 confirmed executions in New South Wales between 1788 and 1954 while another 35 were likely to have been carried out. All but 21 of the total confirmed executions were admin­istered prior to Federation in 1901.^[89] This final count does, however, overlap with some of the executions counted by other scholars in Queensland, Victoria, Tasmania and Norfolk Island since many of their earliest capital cases were technically conducted under the authority of the New South Wales judiciary as explained below. The New South Wales Court of Criminal Jurisdiction was established from the outset when Governor Arthur Phillip arrived in 1788 and, though it oper­ated like a military tribunal for much of its history, it handled capital cases until 1824. Cases were tried in front of six military officers and a Judge Advocate with a majority verdict of five needed for a successful capital conviction. The old Court of Criminal Jurisdiction gave way to the New South Wales Supreme Court from 1824 which handled capital cases thereafter.^[90] The highpoint for executions in New South Wales was in the decade 1826—1836 under Governors Darling and Bourke where 363 hangings took place.^[91] Tim Castles has noted how popular support for harsh penalties was rooted in fears of growing crime rates and a desire for the administration to assert control in a settlement with a high concentration of convicts.^[92] Outside of execution numbers, the types of crimes for which people were executed changed dramatically. In the first ten years of settlement, property-related crimes like stealing and robbery were the main reason for execution. Of the 36 confirmed hangings between 1788 and 1798 only three were murderers.^[93] Yet, by the final decade of the colonial period, executed criminals in New South Wales were almost always convicted murderers—21 of the 25 criminals to be exact between the years 1890 and 1900.^[94]

Given Tasmania was administered first by New South Wales for over two decades, serious crimes like murder needed to be heard in Sydney prior to the 1820s.

In the case of Victoria, prior to the establishment of its Supreme Court in 1852, a resident judge of the New South Wales Supreme Court could hear capital cases in the Port Phillip District from 1841.^[102] Trevor Porter has tallied 187 executions between the years 1840 and 1967 in Victoria with 165 of them taking place in the colonial period.^[103] Meanwhile, Kathy Laster and Roger Douglas place the final execu­tion count in Victoria slightly less at 185 people.^[104] As the gold rushes caused the population of the colony to grow sevenfold, the number of executions naturally increased.

Early Queensland history is marked by the Moreton Bay penal settlement located on the mouth of the Brisbane River that operated between 1824 and 1842. Twelve convicts were executed for capital crimes committed while serving out their sentence at the penal outpost. However, given the settlement was administered by New South Wales, offenders needed to travel south to Sydney to be prosecuted in the early days. Ten of the condemned Moreton Bay convicts were actually hanged at Sydney Gaol in George Street following their trial while only two were returned to the Brisbane River for execution.^[108] As the settlement grew in size and more free settlers arrived, serious crimes started to be heard in Queensland itself by a circuit assize and then by a resident judge— both operating under the authority of the New South Wales Supreme Court.

Western Australia’s overworked Courts of Quarter Sessions was offi­cially empowered to try capital offences from 1832 so long as it was heard before three justices. The Supreme Court was established in 1861 and sat in Perth but, after the 1880s, circuit sittings became more common in faraway rural centres.^[116] A fine-grained study of eleven capital cases (mostly from the colonial period) by Simon Adams shows that many of those who were hanged in Western Australia were from diverse back- grounds—Afghan, Chinese, Malay, Indian, Greek and French among them.^[117] His analysis serves as a reminder of the diversity of colonial society as well as the capacity for episodes of crime and punishment to excite settler anxieties around race, gender, convictism and even polit­ical threats like Fenianism.

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South Australia was the jurisdiction where the least executions were carried out. Between 1838 and 1964 it witnessed 68 judicial hang­ings with 46 of them taking place in the colonial period.^{[119] [120] Established just days following the Proclamation of the colony, capital cases were made the concern of the South Australian Supreme Court. For many capital offences committed in rural districts, all of the parties (including the witnesses) had to travel to Adelaide for the hearing—though some circuit sittings of the Supreme Court were initiated after the 1860s (starting in the colony’s southeast).[121] The earliest executions in the colony were almost entirely made up of either Indigenous offenders or one-time convicts. The spectacle of an execution was harnessed to pacify resistance to European colonisation, particularly on the Eyre Peninsula where Indigenous men were hanged at the very site of their crime (see Chapter 7). As for the execution of European offenders, seven of the first eight executed in the colony were former or escaped convicts who had committed a crime since arriving from across the border— a strange fact considering the colony’s �convict-free’ foundation myth. The rhetoric surrounding these hangings reaffirmed anxious free settlers that the promise of a �convict-free’ society would be made good.[122] The administration was clearly concerned about an influx of �illegitimate’ settlers, like those with conditional pardons, travelling to South Australia in the early years. �[T]he strongest possible prejudice against a convict population has always existed here’, wrote the Governor to the Colo­nial Secretary in 1845, they are �a class of persons who are disliked and are regarded as a separate and distinct class, placed in an inferior social state to the rest of the population’.[123] Other than when an Indigenous offender was involved, the majority of South Australian executions took place in and around the Adelaide Gaol with a rare hanging taking place at a regional site such as Mount Gambier.}

Not included in the above numbers for South Australia are the judi­cial executions that occurred in the area now belonging to the Northern Territory, which it administered from 1863 to 1911. Darwin (origi­nally founded as Palmerston) hosted criminal trials from 1884 under the authority of the South Australian Supreme Court, though circuit court sittings were held there as early as 1875.^[124] From 1891 the number of jurors on capital trials conducted in the Territory was expanded from six to twelve. Moreover, the previously narrow grounds for appeal to the Supreme Court in Adelaide were generously expanded to incorpo­rate issues relating to both evidence and law.^[125] The South Australian Attorney-General was frank when registering his concern for how serious crimes were being tried in the Northern Territory: �As a general rule the Supreme Court there was conducted by gentlemen who, although fair Magistrates in ordinary petty cases, had little or no legal training, and still less experience in criminal law’.^[126] From what is known of crim­inal trials held in the Northern Territory between 1884 and 1913 via a judge’s report, seven were executed for murder—five were Indigenous

Australians, and two were Chinese.^[127] These numbers can be supple­mented by newspaper accounts of at least two executions occurring prior to 1884.^[128] After 1913 only another two criminals were hanged in the Northern Territory but that was in the early 1950s.^[129]

By putting the numbers together from each jurisdiction it is possible to get a well-founded estimation of those executed in Australia for the first time. From British settlement in 1788 to the last execution in 1967 approximately two thousand people were executed in Australian history as the result of a judicial sentence. The vast majority of those execu­tions (over 90%) took place before Federation in 1901. Outside of the possibility of any inaccuracies or oversights in different scholars’ esti­mates, some minor issues still need to be resolved between the existing execution counts before a more precise number can be arrived at.^[130] Nevertheless, this broad figure of Australian executions does allow for some comparison with Britain’s other major settler colonies. Take New Zealand for instance, it only executed 85 people in its history—all but one was a convicted murderer.^[131] Although the use of capital punishment in Canada can be traced to the earliest years of European settlement, concise numbers emerge only after Confederation in 1867—thereafter 706 people were hanged in the country.^[132] South Africa is a region which, at least for nineteenth-century scholars of British settler societies, is sometimes compared to the Australian colonies. However, numbers for the nineteenth century are patchy at best while apartheid rule in the twentieth century makes an overall comparison of execution numbers difficult.^[133] Meanwhile, England and Wales hanged more people between the years 1805 and 1840 than Australia did for all of its history.^[134] Australia could, however, occasionally outpace England in a single year according to Tim Castle—for example, 50 people were hanged in New South Wales in 1830 compared to 46 in England and Wales combined.^[135]

Despite the obvious differences in population numbers, demo­graphics, and the frequency of crime across these international juris­dictions, these figures demonstrate that the gallows were never far from view in Britain's colonial offshoots. For each criminal executed in the Australian colonies, those in positions of power (whether it be lawmakers, judges or prosecutors) saw the example of death as a neces­sary punishment for those that broke the rules of both law and decency in these young settlements. But, to get the complete understanding of Australia's hanging years, it is important to also reinforce the point that the crimes people were actually executed for changed over the colo­nial period. As documented in the early history of Tasmania and New South Wales, a variety of crimes (including many property offences) were frequently the cause of a criminal's demise. Yet, after many of the English reforms to their capital statutes had been passed on by the late 1830s, murder was most often the crime associated with those hanged. It seems that the list of capital offences on the statute books always appeared to be longer than the list of crimes people were executed for in the colonies. Only after knowing more about the prerogative of mercy can a complete picture emerge as to how capital punishment operated in the colonial period.