FEATURE ARTICLE -
Issue 90: Dec 2022, Reviews
Speaking Notes for Executing Justice
Stephen Keim SC - Higgins Chambers
Thursday 1st December, 2022
Speaking Notes for Executing Justice
A panel session with Rachel Franks and Nick Cowdery at the BAD Sydney Crime Writers Festival at the State Library of NSW at 3.30 pm on Saturday, 10 September 2022.
- Thank you to Catherin Menage and her team for putting on the festival and inviting me to be part of this session.
- Thank you to Nick and Rachel for having me as part of the session.
- Thank you to Rachel for producing such a wonderful book and the interesting discussion that Nick and you have already provided.
- I want to say a few words about Rachel’s book. I will say quite a bit about Barry’s book. And, hopefully, I can mention the third book in the trifecta of your reading about the death penalty, a book published by Mike Richards in 2002: The Hanged Man.
- So, to An Uncommon Hangman and Nosey Bob Howard.
- I think it is very important that we write and read and know about the death penalty. The death penalty is cruel and inhuman and gruesome. It often results in botched killings. Even as late as 28 July, this year, prison officials in Alabama spent three hours puncturing holes in Joe Nathan James with needles and slicing him open with scalpels searching for veins into which to make the lethal injection. It is easy to go into denial and gloss over the cruelty involved in the State killing a person in cold blood.
- Second, it is easy to regard the past as a different country and believe that capital punishment was accepted by everybody in the olden days. Rachel writes about, in An Uncommon Hangman, some of the more prominent campaigners to abolish the death penalty in New South Wales and also identifies that, on very many occasions, there were very strong campaigns for mercy for particular persons condemned to death. The death penalty was and will always be controversial and we should never forget that.
- Third, An Uncommon Hangman, in covering the life of the official hangman in NSW for over thirty years and the persons he executed over those years provides an excellent social history of NSW, during that same period. The circumstances of the victims; the circumstances of the perpetrators; the methods of investigation; the reactions of society; the campaigns for mercy; as well as the circumstances of the executions all tell us much about how life was lived in the second half of the 19th century in Australia.
- Fourth, while it takes a special person to want to be an executioner, Rachel reminds us, through the perspective of Nosey Bob, that everyone in society is responsible when the State kills but everyone involved can always try to deflect the blame to others. The hangman is only carrying out the judge’s command. The judge is only giving effect to the jury’s verdict. The jury are only doing what the law and the judge requires of them. And the Executive Council, the government of the day, when they refuse mercy, are only allowing the law to take its course. We must always remember that, when the State kills, it kills in the name of all of us. We are all responsible.
- Thank you again, Rachel, for your contribution to scholarship in this area.
- I, now, turn to The Penalty is Death, edited by Barry Jones AC. Barry turns ninety on 11 August, this year. Some of us may be too young to have spent our childhoods watching Barry perform as an absolute super quiz star on Bob and Dolly Dyer’s massively popular show, Pick-a-Box. Barry has been declared a national living treasure by the National Trust.
- Barry has been a lifelong campaigner against the death penalty. In the lead up to the hanging of Ronald Ryan, on 3 February 1967, Barry was secretary of the Victorian Anti-Hanging Committee and, with many other Victorians at the time, did everything he could possibly do to convince the Victorian government led by Henry Bolte to relent and spare Ryan’s life.
- In the wake of Ryan’s hanging, Barry Jones carried on the campaign for abolition in Victoria. As part of this campaign, he edited a book called The Penalty is Death which was published in 1968 by Sun Books, a publishing venture of three former Penguin employees, Geoffrey Dutton, Max Harris and Brian Stonier. Barry was a member of the Victorian Parliament in 1975 when abolition of the death penalty passed through both Houses and became law. His speech in that debate is one of the additions to the second coming of The Penalty is Death.
- About two years ago, a friend of mine, Frank Mannix, sent me a copy of the 1968 edition of The Penalty is Death. I was transfixed. It was an amazing collection of the best writing against the death penalty ever written. Charles Dickens, Albert Camus, George Orwell, Arthur Koestler, the great American advocate, Clarence Darrow, and, among many others, the Italian philosopher, Cesare Beccaria, writing way back in 1764. Beccaria was both an economist and philosopher and his book, On Crime and Punishment, argued for a rational approach to punishment as opposed to seeing it as divine punishment. In the wake of Beccaria’s writing, Tuscany abolished capital punishment in 1786 and Austria did the same thing, a year later. Meanwhile, as Rachel’s book points out, a fleet of British prison ships were bound for Botany Bay on a mission to establish a 179 history of hanging people by the neck until they were dead.
- As I worked my way through the chapters, an unusual but not surprising thing happened. The 50 year old glue gave way and the book began to go to pieces in my hands. I took to carrying it around in a rubber band to avoid losing the pages and my place in the book.
- It was then that I had the idea that this book needed to see a new lease of life. It was such a valuable collection of works that it needed to be made available to a new generation of readers and students and activists. I wrote to Barry and told him I wanted to arrange for a new edition of The Penalty is Death. He was very supportive. I found out that Macmillan had swallowed up Sun Books in 1981. So, I wrote to Macmillan. After several attempts to make contact and some inquiries around the traps, I found somebody, there, who told me that there was no impediment to a new edition being produced. All the permissions and copyright vested in Barry.
- I then made inquiries of typesetters. It turns out that skilled people can scan a hard copy of an old book and turn the PDF obtained into a Word document that can then be edited. I obtained quotes from printers. Best of all, I found a publishing editor who, for a very moderate fee, took all the logistical questions off my plate.
- Barry Jones worked tirelessly re-writing and updating all the introductions to the chapters and his over-view chapter at the beginning. We added Barry’s speech in the Victorian Parliament and a speech by our third author, Mike Richards, made on the 50th anniversary of Ryan’s death.
- I found three terrific people each to write an excellent foreword for the new edition. Michael Kirby AC CMG wrote a brilliant piece linking the movement towards abolition and the growth of international human rights. Richard Bourke, a wonderful Australian barrister from the Victorian bar who has spent the last twenty years based in Louisiana working on death penalty cases in the south of the United States, wrote about his own experiences in witnessing the execution of his client, Jackie Elliott, in Texas in 2003 and the profound, soul-deep sense of how wrong capital punishment was that he felt at the time and ever since. And Julian McMahon AC, who acted for Andrew Chan and Myuran Sukumaran, wrote about the men that inspired him in his efforts to oppose the death penalty including Barry Jones, Michael Kirby, Richard Bourke and Jack Galbally. The latter’s great persistence saw him introduce a Bill to abolish the death penalty into the Victorian Parliament, fifteen times, between 1956 and 1974.
- Capital Punishment Justice Project, the organisation of which I am chair, raised over $40,000 to pay for the costs of publishing the new edition. As you can see, Scribe agreed to badge the book and have been fantastic in arranging for distribution. I think that, wherever you live in Australia, there is a good chance that The Penalty is Death will be in your local bookshop at this moment. Barry Jones has generously donated the royalties from the sale of the book to CPJP.
- The Penalty is Death was launched by Kerry O’Brien at Parliament House, Brisbane, on 1 August, this year, as part of celebrations to mark the anniversary of the abolition of capital punishment in 1922. Queensland was the first jurisdiction in the British Empire so to abolish the death penalty.
- That is my story and the story of the Book. I want to share with you a few gems from some of the famous writers whose work is collected in The Penalty is Death.
- In his foreword, Richard Bourke quotes Reinhold Niebuhr for a phrase that becomes more and more relevant as I grow older: “Nothing that is worth doing can be achieved in our lifetime; therefore, we must have hope”.
- Sir Ernest Gowers chaired the Royal Commission into the Death Penalty in the UK from 1949-1953. He explains why he has come to the conclusion that, in a consideration of any discussion of the death penalty, the onus must be on retentionists to justify their position on utilitarian grounds. After setting out a number of very good arguments, he says:
“Perhaps, the turning point was when I learned what a large number of applications there were for the post of hangman. Any State institution, I thought, that inspires ambitions of that sort in its citizens and satisfies some of them …surely does need to justify itself on utilitarian grounds.”
- George Orwell wrote an essay about a hanging he witnessed as a member of the Imperial Police in Burma. He describes the image of the prisoner walking in front of him the forty metres to the gallows. And then he says:
“And, once, in spite of the men who gripped him by each shoulder, he stepped slightly aside to avoid a puddle on the path.
“It was curious, but till that moment I had never realised what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle, I saw the mystery, the unspeakable wrongness of cutting a life short when it is in full tide. This man was not dying, he was alive just as we are alive … He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone – one mind less, one world less.”
- That is a very powerful passage in a very powerful essay. There is a further passage towards the end of the essay that undermines the impression that one can get from some descriptions of some executions. Everybody, including the prisoner, tries to act in a dignified manner. The result of those efforts should not be allowed to detract in any way from the torture involved in every second a condemned prisoner spends on death row. Orwell writes, as he describes the party returning to the main part of the prison from the gallows:
“The Eurasian boy who was walking beside me nodded towards the way we had come, with a knowing smile: ‘Do you know, sir, our friend (he meant the dead man) when he heard that his appeal had been dismissed, he pissed on the floor of his cell. From fright …”
- I hope you will take the opportunity to read The Penalty is Death. It will provide you with many insights about an issue that remains of huge practical relevance to Australians as we found out in 2015 with the executions of Andrew Chan and Myuran Sukumaran. Australians travel a lot and, when we go to countries such as Singapore, Malaysia, Indonesia, Thailand, Myanmar, India, China, Taiwan, Japan and Pakistan, to name just a few, we are in jurisdictions where the domestic law imposes the death penalty. When we look at countries which are abolitionist or have long term moratoria in place, we feel encouraged that the death penalty is coming to an end. But, when we look at the countries which retain and implement the death penalty, we realise that much more than half the world’s population live under the threat of being sentenced to death. But it is not just that capital punishment might affect a fellow Australian or even someone near and dear to us. Capital punishment is a moral challenge to all of us. While any one person remains threatened by the death penalty, a deep wrong remains upon the earth and we are challenged as to what we can and will do about it. The death penalty is wrong at all times and in all places.
- In the time left, I wanted to speak a little about another amazing book, The Hanged Man, by Dr Mike Richards. Mike did his PhD on Ronald Ryan’s 1967 execution. He focussed on the machinery of law and government and researched and wrote about every step in the process that led to Ryan’s death at the hands of the law. The results of this research are amazing. The reader gets to see Justice John Starke, before and after he imposes the sentence of death, and to hear His Honour’s reflections on whether he could have done more to save Ryan’s life when he spoke to Cabinet. The reader gets to see into the heart of the protest movement taking every legal and political step to change the government’s mind or to prevent that mind from having its way. The reader gets to follow the debate in Cabinet as Sir Henry Bolte guides the process to its inevitable result and to obtain his much-desired object of an execution on his watch. One gets to hear what the governor of the prison said to the staff at Pentridge about how to treat the prisoners in the hours following Ryan’s execution.
- Having obtained his PhD, Mike realised that the most important person was missing from his thesis. So, he embarked on another exhaustive (and, no doubt, exhausting) research project to find out everything he could about the hanged man, Ronald Ryan.
- The Hanged Man starts with Ryan writing his last letter to his wife and daughters on a roll of toilet paper and it ends, nearly four hundred pages later, with his execution. In the intervening pages, however, we still receive the detailed documentation of the legal processes that brought Ryan to his death. But we also get to read about his childhood; his wardship with the Department of Children’s Welfare; his early adulthood working in the timber industry and competing in cycling road races and running the amateur club that ran those races; his early crimes as an adult; his rehabilitation in prison; his courtship; his marriage; his role as a father; his career as a serious break and enter operative and addicted gambler; his escape; his time on the run; his capture; his trial; and the manner in which he faced his death.
- The execution of Ronald Ryan says a lot about our history including about the places from where we have come as Rachel’s book, indeed, spells out for us. It tells us the dangers of populist politics. It should remind us that we are just one atrocity away from an ugly debate about restoration. The Hanged Man is the definitive account of how that execution came to pass. I think we should all try to read it.
- These are three amazing books. I feel privileged to have said a few words about each of them. Despite my best efforts, I doubt I have done them justice.
 https://www.al.com/news/2022/08/joe-nathan-james-suffered-a-long-death-in-botched-alabama-execution-magazine-alleges.html (accessed 28 August 2022)
 TPID, page (xvii)
 TPID, page 82: Earlier, at page 72, Sir Ernest reveals that the evidence at the Royal Commission indicated that the number of applications averaged five per week.
 TPID, page 228
 TPID, page 230