Lord Carrington’s Bind

When news of the sentence was published in the press, extensive debate arose about the fate of the youths and whether nine young men should face the gallows. The newspapers reported on all sides of this debate.

Public opinion appeared to be divided in respect as to whether the death sentences should be carried out in the circumstances surrounding the Mount Rennie case. Throughout the months of December 1886 and January 1887, a series of public meetings were convened around New South Wales including Sydney City, Lithgow, Newcastle and Balmain.^[814] Those who attended these meetings discussed, in detail, whether mercy ought to be exercised by the Governor in favour of the Mount Rennie youths. The voices calling for the youths to be executed were particularly strong. As David Walker describes: “there was a widely endorsed theory that one more act of leniency towards criminal youths would generate a wave of similar crimes”.^[815]

On Wednesday 1 December 1886, the Sydney Morning Herald added a further dimension to the discourse. It announced that “the trial of the prisoners for the Waterloo outrage at Sydney has attracted considerable attention in England”.^[816] This attention led to spiralling concerns within the Executive over the importance of saving face within the British Empire.

I had a long interview with Sir Henry, in which he dwelt on the great harm which would accrue to the Colony if these youths were hanged in the year before the Centennial...^[817]

Therefore the pressure upon the Governor to exercise Executive clemency to the nine youths was mounting. The question of commuting the sentences was becoming not just one of mercy, but also one of politics.

The high profile nature of this case and the time it occurred, particularly with the pending Queen’s Jubilee, placed Lord Carrington in an extraordinarily difficult position. He described this period in his own notes as “a very trying time”.^[818] In the coming weeks, Lord Carrington faced unrelenting pressure from Sir Henry Parkes to commute the sentences. Further, two meetings of the Executive Council would be held. By December 1886, the Governor had already received petitions from the public requesting mercy for the Mount Rennie youths. In the coming weeks, he would receive additional petitions from the public and numerous deputations from Members of Parliament, the Clergy and other “well known public men” petitioning for the exercise of the prerogative of mercy in this matter.^[819]

In colonial Australia, the prerogative of mercy was a common law power that was exercisable by the Governor.^[820] Peter Brett describes the practice of using a conditional pardon as being “devised ad hoc to deal with the problem of peopling the colonies...”^[821] Parliamentary papers of the era tell us that there were “royal instructions issued to his Excellency. on the course to be taken in regard to the death punishment”.^[822] Section 12 of the Royal Instructions provides:

Whenever any offender shall have been condemned to suffer death by the sentence of any court, the Governor shall call upon the judge who presided at the trial to make to him a written report of the case of such offender, and shall cause such report to be taken into consideration at the first meeting thereafter which may be conveniently held of the Executive Council, and he may cause the said judge to be specially summoned to attend at such meeting and to produce his notes thereat.

The Instructions make it clear that the decision of mercy ultimately rested with the Governor of New South Wales.

The position of the Premier

From the 21 December 1886 until 6 January 1887, a series of personal correspondence exchanged between the Premier, Sir Henry Parkes, and the Governor, Lord Carrington, focused specifically on the issue of the fate of the youths still facing execution. What emerges clearly from this documentation, are three key tensions that Parkes highlighted in a long letter to Lord Carrington on 25 December 1886.^[824] These key tensions also assist to understand the nature of the politics of justice at this time. The first of these tensions was the disparity between the punishment for the crime of rape in England compared to that of Australia.^[825] The second, also closely related, was the concern “that no group of criminals equal to six in number have been executed in any English speaking country for many years past even for the worst cases of murder”.^[826] The third was that Sir Henry Parkes was profoundly convinced that harm would come to the Colony if the death sentences were carried out. Parkes wrote:

... as a question of national policy and in the interest of what I believe to be the highest good of the Colony, in the interest of her fair and rising reputation before the civilised world, I implore your Excellency to exercise the Queen’s prerogative in saving these six worthless lives rather than their forfeiture, however just in the eye of the law, should cause a cloud to hang over the aspirations of our people at a time when all desire to prove their loyal attachment to her Majesty, while asserting their own position, after a century of pioneering struggle and chequered fortune, as one of the noblest of the Australian colonies.^[827]

As will be seen below, this was a position that Sir Henry Parkes was to repeatedly advance in several upcoming forums before the Governor.

Meeting of the Executive Council

As set out in section 12 of the Royal Instruction above, the Executive Council was convened to give advice to the Governor. The first meeting of the Executive Council was held on Thursday 16 December 18 86.70 Lord Carrington’s notes document that, also in accordance with the Royal Instructions he had already received a written report from Justice Windeyer.^{[828] [829] It is not documented in Carrington’s notes whether this document was taken into consideration at the first meeting of the Executive Council in accordance with the procedure set out in the Royal Instructions.[830] Certainly the views of Justice Windeyer on the Mount Rennie Case would have been made clear to the Executive because, as sanctioned by the Royal Instructions, Justice Windeyer had been summoned and did attend the first Executive Council meeting.[831]}

At this meeting, a decision was reached that the lives should be spared of three of the nine prisoners; Michael Donnellan, Hugh Miller and George Keegan.^[832] The decision reached by the Executive Council was that the death sentence for these three offenders be commuted to one of “penal servitude for life with the first three years in irons”.^[833] Justice Windeyer had recommended mercy be exercised on behalf of William Hill.^[834] However, the Executive Council advised that the remaining six prisoners, William Boyce, George Duffy, William Hill, Joseph Martin, William Newman and Robert George Read should suffer the death penalty.^[835] Lord Carrington acted on this advice.^[836]

Throughout December the Mount Rennie case remained a political burden upon the Executive. Public opinion gave weight to a view that two of the six condemned men were innocent.^[837] On 4 January 1887, the Executive Council decided to meet again to discuss the case.^[838] Justice Windeyer had now left for England so was not present at this meeting.

At the second meeting of the Executive Council “the whole of the evidence, the statements from the prisoners and of the witness on their behalf, petitions presented and resolutions passes in favour of their reprieve were carefully gone into...”^[839] The Council was split with four members for carrying out the death sentences and four against. Lord Carrington records in his notes on the meeting, that two ministers who had previously voted for the death sentence being carried out had changed their position since the first meeting of the Executive Council.^[840] He complained in his notes of the Attorney-General’s absence and stated:

[t]hey were both sides absolutely determined, and the matter then rested absolutely on me — a serious condition of things. Six men’s lives trembling in the balance, and the Chief Justice in New Zealand, the Attorney-General in Tasmania, and the Judge who tried the case having sailed for England.^[841]

Because the Council were not unanimous at this second meeting, it left Lord Carrington with no clear direction from his “constitutional advisors”^[842] other than the advice from the first meeting of the Executive Council that the death sentence for the remaining six youths should stand.^[843] The six youths were facing execution on Friday 7 January 1887, unless the Governor decided to exercise the prerogative of mercy.^[844]

The deputations

The following day, 5 January 1887, with approximately 48 hours remaining before the executions were scheduled to take place, Lord Carrington received correspondence from Cardinal Moran pleading for mercy on behalf of the six condemned prisoners.^[845] Later on the same day, a deputation of influential men comprising of Sir Henry Parkes, the Right Honourable W B Dalley, Cardinal Moran and Bishop Barry called on the Governor to make a final appeal for the exercise of the royal prerogative of mercy for all remaining six lives.^[846]

Sir Henry Parkes spoke first and made a lengthy plea on behalf of the prisoners.

He did not ask for the prerogative to be exercised in favour of the men on behalf of mercy, but he thought that the hanging of these men would not do anything in vindication of the law while it would hurt our reputation at home.^[848]

W B Dalley is reported to have concurred with Parkes’ concerns about the reputation of the Colony overseas.^[849] Dalley also addressed matters in respect to the conduct of the trial including the questionable nature of the identification evidence that was relied upon. He spoke of public policy concerns about the reluctance of juries to convict in criminal matters if their recommendations of mercy “were held of no account”.^[850] He further observed that “[h]e knew of no English judge who ever insisted on the counsel and jury being forced to go on with such a trial when their physical energies were exhausted and their intellects were not equal to the occasion”.^[851] This was expressing concerns of the same tenor as those expressed by Archibald (see above in Windeyer's Justice: An “Unyielding Heel of Iron”)^[852]

The next to address the Governor was Cardinal Moran. He admitted “he had little to add to his letter”.^[853] However, he is recorded as having criticised the blood lust that was present in the daily press and also emphasised the ignorance and youth of the prisoners.^[854] The final submission was by Bishop Barry who was reported to have said little on the matter other than to remind the Governor that the prerogative of mercy could still be exercised up until the last moment. He sympathised with the Governor’s plight and reportedly said that “the position that you have taken up is unassailable”.^[855] Despite this obvious show of power, Lord Carrington’s recollection of this meeting, as recorded in his notes, was that “[i]t seemed to be a very strong deputation, but in reality it was not”.^[856]

On 6 January 1887, the eve of the execution, Lord Carrington received yet another group of prominent gentlemen presenting a deputation. Mr Thomas Ewing, John Davies and A H M’Culloch, members of the Legislative Assembly of New South Wales, presented a petition that had been signed by thirteen members of the Legislative Assembly and also by Sir Henry Parkes.^[857] The signed petition requested that Carrington commute the sentence of death imposed upon all prisoners and once again attention was drawn to the reputation of the Colony overseas.^[858] It was reported in the Sydney Morning Herald that the petition had been hastily prepared the night before and that if there had been more time to prepare the document then more members of the Assembly could have been reached and a greater number of signatures provided.^[859]

Mercy for Hill and Newman and the fate of the remaining four

While Lord Carrington does not document that he was motivated by either of these deputations in his notes, on the same day 6 January 1887, he reports that “after long and careful consideration”^[860] he decided to grant mercy to two of the six condemned men: William Hill and William Newman. They were both granted a conditional pardon of “penal servitude for life with the first three years in irons”.^[861] These were the same conditions as those imposed on Donnellan, Miller and Keegan in December following the first Executive Council meeting. On hearing the news of clemency, the Sydney Morning Herald documented that Hill supposedly stated: “That’s worse than death. I would rather die. I would rather go to the gallows. I don’t want to live,”^[862] while it was observed that Newman “appeared to be dazed and said nothing”.^[863]

As stated above, Justice Windeyer’s written report to the Governor of 9 December 1886 had recommended mercy for Hill.^[864] The decision of the Governor in respect to granting clemency to Hill is therefore interesting. Carrington had chosen to accept the recommendations of the judge for this prisoner over those of that the Executive Council. We have indicated earlier that the Executive Council on 16 December 1886, in a meeting at which Justice Windeyer was present, advised the Governor that the death sentence should proceed for Hill. Of course, we have also seen that Lord Carrington was under considerable external pressure to exercise clemency since this meeting and perhaps this was a concession he was prepared to make given he had judicial support for mercy for this prisoner.

The recommendation for mercy for Newman had also originated from Justice Windeyer. Unlike Hill, however, Justice Windeyer appeared to have a change of heart in respect to Newman’s position immediately prior to his departure for England. He is reported to have sent a memo to Lord Carrington at this time.^[865] Newman was depicted as an 18 year old man of low intelligence^[866] whose quiet demeanour had impressed gaol officials and attracted sympathy for his position. Lord Carrington recorded in his notes that he also received information from two Sisters of Mercy who visited the prisoners that all of the prisoners had claimed that Newman was not present at the scene of the crime and was innocent.^[867]

In respect of the remaining four condemned youths, Lord Carrington felt that “he had no alternative but to enforce the law as he found it”^[868] and uphold the opinion of the Executive Council. On the morning of Friday 7 January 1887, George Duffy, Joseph Martin, William Boyce and George Read were executed on the gallows at Darlinghurst Gaol.^[869] The news of their execution and the public spectacle that took place spread throughout the Colony.^[870] A record number of people had turned out for the execution.^[871] Prisoner Read produced a document which was to be read after his death. In this document he professed his innocence.^[872]

In December 1886, Miller, Keegan and Donnellan, three of the youths who were now under sentence of penal servitude, each sent a letter to the Minister of Justice setting out their recollections of the day of outrage and asking for the Minister’s further consideration of the case.^[873] The Minister of Justice did follow up on these letters. The newspapers documented that as late as July 1888, the Minister of Justice had raised with Justice Windeyer discrepancies that he had identified in the evidence in the case.^[874] A series of correspondence took place between the Judge and the Minister where it was ultimately determined that the men had, in fact, been properly convicted.^[875] This demonstrated the extraordinary nature of the issues surrounding this matter and that 18 months after four youths were executed for the crime, concern still existed about the circumstances and about the involvement of those convicted.

The primary sources referred to in this chapter have revealed that a series of remarkable events took place to shape the outcome of the fate of the youths found guilty of the Mount Rennie outrage. Nonetheless, a postscript remains. As we have seen, five of the nine youths sentenced to death were granted a conditional pardon. It is reported that Donnellan and Newman served their sentence in Darlinghurst Gaol, Miller and Keegan in Parramatta Gaol and Hill in Trial Bay Gaol.^[876] These five youths were all released after having served 10 years.^[877] With regards to the fate of Mary Jane Hicks, it is thought that she left Sydney for New Zealand and took up employment in that country shortly after the trial.^[878]