Proportionality

The second chapter in this part of the book is the gripping description by Wendy Kukulies-Smith and Susan Priest of the shocking case of a gang rape in Sydney on 11 September 1886.

The case in 1886, like that in 2012, started with a public transport driver. In Sydney it was a cab driver and in Delhi a bus driver. The victim in Sydney was a 16 year old girl, Mary Jane Hicks. She was driven by the cab driver to scrubland in Moore Park and was then brutally raped by nine young men, all between the ages of 17 and 22 years. At the time, under the criminal law of New South Wales, the punishment for the offence of rape was death by hanging. The accused were all apprehended, as later were the five accused and bus driver in Delhi. The Sydney accused were tried in the Central Criminal Court at Darlinghurst. The trial was conducted jointly before a jury, presided over by Justice Windeyer. The nine Sydney accused were all found guilty by the jury. They were convicted by the judge. Despite a rider to the jury’s verdicts involving a recommendation for mercy, the judge refused their pleas. He sentenced all nine to death. The cab driver was also found guilty for his part in the crime. He was sentenced to 14 years imprisonment with hard labour and two floggings.

The trial was closely followed in the colonial media in Australia. In a settlement still of relatively small numbers, and before Federation, the prospect of the hanging of so many young men attracted huge attention and hotly contested views.

Pleas for mercy were advanced to the Governor of New South Wales, who was very distressed by the fact that his somewhat graceful life was interrupted by such an unpleasant decision.

The trial of the young men in New Delhi likewise captured a great deal of media attention. In that case, the young woman who was sexually assaulted was thrown from the moving bus, together with her male companion who had boarded the bus with her. She was already grievously injured. Police were immediately called to the scene by a mobile phone. The accused were described. The young woman was treated in a Delhi Hospital and later flown to Singapore for emergency care. However, she died of her injuries. Demands were made in the Indian Parliament for the introduction of the death penalty for rape. An enquiry was established under the former Chief Justice of India, JS Verma. It recommended an increase in penalties and other reforms. However, it held back from recommending the reintroduction of the penalty of death that formerly existed for rape in the Indian Penal Code.

The media presentation of the legal players in the two dramas was not always flattering, either in 1886 or 2012. Justice Windeyer was described in the contemporary newspapers as ferocious and bent on securing the conviction of the accused. Cartoons display him with fierce eyes, a jutting jaw and brutal mien. In Delhi, legal practitioners refused to accept the brief to appear for the six accused persons (including the bus driver). This shameful act was a reminder of the shocking conduct of the advocates in Pakistan after the Governor of Pakistani Punjab was gunned down by one of his own bodyguards after he had urged repeal and reform of the law on blasphemy. Reportedly, when the accused was brought to court for the first time, advocates refused to appear for the prosecution and instead sprinkled the accused with rose petals, ostensibly to express their support for his action in defence of Islam. In India, the Chief Justice of the Supreme Court appealed to senior advocates to take up representation of the accused, to ensure that they would have a fair trial.

In cases of this kind, courts and the judicial process are tested for their fidelity to due process and natural justice. It is in horrific cases that the presumption of innocence, the necessities of scrupulously fair hearings and precise scrutiny of the law and evidence become of the greatest importance. In the Indian trial, according to reports, the most significant evidence against the accused will allegedly be DNA evidence gathered from a scientific examination of the bus in which the fatal attack was alleged to have occurred. Of course, back in 1886 there was no such DNA evidence. The accusations against the accused relied substantially on the testimony of Miss Hicks and confessional and circumstantial evidence called by the Crown.

The horror of the ordeal suffered by the two young women, in events separated in time and space, is obviously such as to demand condign punishment of those proved guilty of such conduct. But was the fourfold penalty of death ultimately imposed on the prisoners who did not receive the Governor’s clemency in 1886 a just disposition? Of course, this question would be answered differently today than would have been the case back then. But even then, as the contemporary newspaper reports described in this brilliant chapter demonstrate, some observers thought it was disproportionate. In effect, if nine people could be sentenced to death and four actually executed in a case where the victim’s life had been spared, what inducement would exist to an offender to hold back from destroying the life of the person best able, in the circumstances of that time, to describe the offenders, to give evidence against them and to bring them to justice?

Proportionality in punishment is always a contested virtue. In India, the mother of the deceased young woman, in despair, called for the penalty of death for the killers of her daughter. In the Australian case, the imposition of that penalty upon four young accused appears disproportionate.

In Ryan V The Queen (2001) 206 CLR 267, the High Court had to decide an appeal concerned with the sentencing of a Roman Catholic priest who had been convicted of sexual offences against 12 young boys over a period of 20 years. Testimonials were received from former parishioners, priests and others concerning the accused’s good character, reputation and valuable good works as a parish priest. However, the sentencing judge, whilst acknowledging the pleas, said he could see no good in the accused. He held that his “unblemished character and reputation” before the crimes did not entitle him to “any leniency whatsoever”.

The Court of Criminal Appeal of New South Wales rejected an appeal against the sentence of 14 years’ minimum term imprisonment imposed at trial. In the High Court of Australia, Justices McHugh, Callinan and I upheld the appeal, with Justices Gummow and Hayne dissenting. The majority concluded, in effect, that when a person stands before a court for punishment, he or she is entitled to have taken into account both the considerations that aggravate the seriousness of the offence and those that mitigate the circumstances and represent positive features in the accused’s life that stand to that person’s credit at the moment of sentencing.

The similarities and differences between the offences of gang rape occurring in Sydney in 1886 and New Delhi in 2012 show the enduring features of the legal system and sadly the enduring features of human cruelty and criminal conduct. By examining contemporaneous records, and the debates that swirled around the trial of the nine in Sydney in 1886, Wendy Kukulies-Smith and Susan Priest have presented us with a fascinating and gripping story, full of interesting and still relevant legal and criminological questions. They have also demonstrated, once again, the importance of legal history to a proper understanding of the law. It is hard to imagine how young lawyers today can be readied for a life in the law without a thorough appreciation of the history of our discipline and the constant need for reform that that history demonstrates. But alas it does happen. This chapter is a welcome corrective.