The Private Execution Acts
Acts to abolish the practice of public executions were passed separately among the colonies without any top down direction from Britain or any official dialogue between the colonies to act collectively.
It was a case of discreet colonial jurisdictions acting independently to abolish the bloody spectacle of public executions one after the other. The term â€?Private Execution Acts' is occasionally used below to refer to these separate pieces of legislation collectively—even though they were titled slightly differently from colony to colony. New South Wales, Victoria and Van Diemen's Land (later called Tasmania) all proclaimed an Act to abolish public executions in 1855.3 South Australia proclaimed an end to public executions in 1858 while Western Australia waited until 1871 to follow the example set by the colonies to the east.[479] [480] [481] In the case of modern-day Queensland private executions were adopted in 1855 since it was under the administrative jurisdiction of New South Wales until 1859.5 Though the Act was proclaimed in New South Wales and Victoria in 1855, this hides the fact that the bill actually passed its third reading much earlier. In the Parliament of New South Wales a successful third reading occurred in August 1853, while in November 1854 the bill passed its third reading in the Victorian Parliament.[482] The lengthy delay in proclaiming the bill was due to the fact that, in both cases, it was sent to England for Royal Assent.Pre-empting England with this reform was a contentious point for the two earliest colonies. At the time the reform was deemed â€?so novel', to borrow the words of New South Wales Attorney-General John PlunÂkett, that it needed to be double-checked by the â€?mother parliament'.[483] Plunkett had â€?no hesitation' in suggesting that â€?the Governor-General [of New South Wales] ought not to give his assent to any such measure until it had been referred home for the decision of the Queen'.[484] After being transmitted to England, An Act to Regulate the Execution of Criminals was officially proclaimed in New South Wales on 10 January 1855, a full seventeen months following its initial passage through Parliament.[485] By late November 1854, when the bill had been successfully read a third time in Victoria, news had not yet arrived of New South Wales' success in gaining approval from England.
Thus, Victoria joined its northern neighbour in bypassing the Governor's approval and sending the bill to England for Royal Assent.[486] On 10 October 1855, almost a year later, it was announced in the Victorian Government Gazette that Her Majesty's Assent had been granted.[487] Conversely, in Van Diemen's Land, South Australia and Western Australia, the resident Governors, not the Queen of England, gave their Assent to the various bills concerning private executions—the precedent of New South Wales and Victoria having already been set.[488]John Darvall, a former barrister-cum-parliamentarian, was the only person to seriously question the need for Sydney to reserve the Bill for Royal Assent in England:
What had the Imperial Government to do with the question [of private executions]? Really, after all their struggles for self-government... it would come to this, that they could not have a gutter cleansed without asking permission from home.[489]
Darvall viewed the alteration of the execution procedure as a �purely local and municipal' issue that did not require an opinion from the �Imperial Government'.[490] It was a concern that does have a legitimate legal basis since the precedent throughout the colonial era was to only reserve bills for Her Majesty in England that were of an Imperial concern, rather than that of a local character.[491]
The pioneering legislation of New South Wales came with five specific clauses. As had always been the case, Section 1 of the Act still put the responsibility of running the execution in the hands of the Sheriff or someone to whom he expressly delegated this responsibility. It also declares that the execution must occur �within the walls of the Prison of the Country City Town or District in which the conviction was had or within the enclosed yard of such Prison'.[492] This is the crucial clause that gave hangings their newly �private' character.
From this point on the gallows across the colonies were mounted differently or covered up in ways that made the scene invisible to those outside the prison. Section 2 of the New South Wales Act outlines who could watch a private hanging. In addition to the usual officers, the key part of this clause (discussed at length in Chapter 5) was that the Sheriff now had the power to admit any â€?adult Spectators', chosen from among the general public, to view the execution. Only Western Australia stipulated in the legislation specifÂically that â€?such relatives of the prisoner' were allowed to view the private hanging.[493]The three remaining sections in the New South Wales Act were largely designed to organise procedural guidelines. The Sheriff is directed not to allow anyone to leave the place of execution until the medical officer signs a form declaring that the criminal's life had expired. Similarly, gaol officers and any public spectators must sign another form stating that they were witness to the death.[494] Any false testimony regarding these witness and medical statements came with a maximum penalty of fifteen years transportation. Although penalties for false declarations were present in each of the other colonies, the punishment in New South Wales was the most severe for this kind of transgression. The Sheriff was directed to lodge these documents with the Supreme Court in Sydney for their safekeeping and news of the hanging was to be twice published in the Government Gazette.
The central point of departure between the different Acts passed by the colonies was how to guarantee procedural transparency and make people aware that an execution had occurred. Coronial Inquests following the execution were required by law in every colony except New South Wales and Van Diemen's Land. In these two remaining colonies, the signing of declarations from witnesses to the execution and the medical officer certiÂfying the success of the hanging was deemed suitable enough to satisfy the public mind.
Only in Victoria was it possible, upon a clause origÂinally suggested by the Attorney-General, for any person in the colony to be able to view the dead criminal's body within eight hours of the hanging—so long as they had permission from a Justice of the Peace.[495] In the interests of adequately publicising the judicial execution (and in the very rare case that the newspapers avoided comment on the issue), every colony except Western Australia stipulated that news of the death must be published in the colony's Government Gazette.Western Australia's guarantee of transparency and due process deviated the most from that of other colonies. It was the only colony where the Sheriff and witness declarations as well as the Surgeon's medical certifiÂcate had to be displayed â€?on or near the principal entrance of the prison' where the execution took place for a minimum of twenty-four hours afterwards.[496] A duplicate of these documents was then sent to the ColoÂnial Secretary's office for safekeeping. Western Australia was also the only colony to allow some room to manipulate the boundaries of the execuÂtion ceremony but only in so far as to accentuate the new qualities of the penalty. In the colony, the Colonial Secretary was given the power â€?from time to time' to â€?make such rules and regulations to be observed on the execution' that lends â€?greater solemnity' to the occasion.[497]
The first criminal in Australia to be hanged in accordance with the newly formed standards of a private execution was William Ryan on 28 February 1855 at Sydney's Darlinghurst Gaol.[498] Found guilty of disemÂbowelling his wife in a drunken stupor, Ryan was led to the newly constructed gallows at the rear of the Gaol and composed himself by shaking hands with the clergymen as the moment of death neared. His final words spoken not long after 9am—â€?O! Lord have mercy upon my soul!'—echoed around the gaol yard with uncharacteristic clarity in the absence of the usually rowdy Sydney crowd.[499] As soon as the execuÂtion ended, the medical officer checked for a pulse, found Ryan dead, and signed the relevant form as stipulated by An Act to Regulate the Execution of Criminals which had been proclaimed a month prior. The small number of observers who attended also played their part, signing a witness statement confirming the death.[500] The execution became a simple fact twice printed in the Government Gazette, reported through the lens of newspapermen and only witnessed by a select few members of the public. Ryan's death in 1855 was the archetypal example of a private execution ceremony that remained in place until Australia's very last hanging in 1967.