Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Knatchbull (1844) NSW Sel Cas (Dowling) 313; [1844] NSWSupC 9

capital punishment, law of - reception of English law

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 1 February 1844

Source: Dowling, Select Cases and New Series, Vol. 1. S.R.N.S.W. 2/3467, p. 155

A sentence of death for murder in the Colony is to be pronounced in the same manner as in other capital cases.*

Dowling C.J. On the 24th of last month the prisoner John Knatchbull was convicted of wilful murder at the gaol delivery of the Supreme Court, before Burton J. The learned Judge, in pursuance of the statute 6 & 7 Wm 4 c. 30 (1836), s. 2 immediately pronounced sentence of death upon the prisoner in the same manner as after convictions for other capital offences.

After the close of the session of gaol delivery, namely on the 29th January, a petition was presented to the Judge on behalf of the prisoner, praying that counsel might be heard before all the Judges, for the purpose of arguing that the sentence was illegal, inasmuch as it omitted to express that the body of the prisoner should be dissected and anatomised, and if that was not necessary that it omitted to express that the body of that prisoner should be buried within the precincts of the prison.

His Honor submitted this petition to the consideration of his brethren and we have fully considered the propriety of yielding to the prayer of the petition and are of opinion that it ought not to be granted.

If the question as to the proper manner of pronouncing sentence in this Colony, in cases of murder, were now for the first time to be mooted, the Court would have readily acceded to the request to have it argued by counsel. But inasmuch as the Judges of this Court had this point under their deliberate judgment and determination since the 9th November 1837, in the case of John Carey Willis (1837), holding that sentence of death may, in this Colony, be pronounced after convictions in the same manner as after convictions for other capital offences and that resolution having been invariably acted upon by all the Judges, in at least seventy subsequent convictions for murder, the Court cannot now have the question re-opened for argument.

On the 13th July 1837 8 Wm 4 No. 2 was passed, adopting in the gross and without discriminating what were and what were not applicable to the state of the Colony, several acts of Parliament and for applying the same in the administration of justice in New South Wales, "in like manner as other laws of England are applied therein". Amongst these were the 4 & 5 Wm 4 c. 26 (1834) for abolishing the practice of hanging the bodies of criminals in chains and the 6 & 7 Wm 4 c. 30 for repealing so much of the English Act 9 Geo. 4 c. 31 (1828) and the Irish Act 10 Geo. 4 c. 34 (1829) as directs the period of the execution and the prison discipline of persons convicted of the crime of murder. As both these Acts made material alterations in the manner of passing sentence and disposing of the bodies of persons convicted of murder in England and Ireland respectively, it became a question for the direction of the Judges as to the applicability of them in this Colony.

These Acts having been adopted on the 13th July 1837 , the first case of murder which occurred afterwards was that of a convict named John Carey Willis. That prisoner was tried before Burton J. on the 9th November 1837, and being convicted, his Honor invoked a conference with Willis J. and myself as to the form and manner of awarding sentence, and after full deliberation we were of opinion upon the plain construction of the statute 6 & 7 Wm 4 c. 30, s. 2 that the sentence of death might be pronounced after convictions for murder in the same manner as after convictions for other capital offences, namely by simply awarding judgment of death and execution thereon, without directing any disposition of the bodies after execution. That prisoner was so sentenced accordingly. The same point was again considered in the case of George Cornerford convicted on his own plea of guilty on the 28th May 1838 . As already observed this resolution has been invariably acted upon down to the present time and we think the soundness of it ought not now to be called into question.

It may be convenient however to advert shortly to the grounds on which the Judges came to their resolution. By the 9 Geo. 4 c. 31 which came into operation in this Colony solely by force of the New South Wales Act 9 Geo. 4 c. 83 (1828) a discretionary alternative power was given to the Court to direct that the body of every offender should after execution, and either be dissected or hung in chains "as to the Court should seem meet". By the 2 & 3 Wm 4 c. 75 (1832) entitled "An act regulating schools of anatomy" (which Act has not been adopted by the local legislature) the power to order dissection is repealed and it gives the Court the alternative power to direct the prisoner either to be hung in chains or to be buried within the precincts of the prison in which such prisoner shall have been confined after conviction as to such court shall deem meet. Then by the 4 & 5 Wm 4 c. 26 (which has been adopted) reciting the English Act 9 Geo. 4 c. 31, the Irish Act 10 Geo. 4 c. 34, and the 2 & 3 Wm 4 c. 75 relating to schools of anatomy, repeals the hanging in chains ordained by the 9 Geo. 4 c. 31 (dissection having been repealed by the preceding Act 2 & 3 Wm 4 c. 75) and also repeals that part of the Irish Act 10 Geo. 4 c. 34 which awarded dissection or hanging in chains and then proceeds to enact "that in every case of conviction in Ireland, of any prisoner for murder, the court before which such prisoner shall have been tried shall direct such prisoner to be buried within the precincts of the prison within which prisoner shall have been confined after conviction, and the sentence to be pronounced by the Court shall express that the body of such prisoner shall be buried within the precincts of such prison".

By the 6 & 7 Wm 4 c. 30, reciting the English Act 9 Geo. 4 c. 31 and the Irish Act 10 Geo. 4 c. 34 certain provisions therein contained as to the time and manner of passing sentence and the treatment of prisoners after conviction for murder are repealed and then it is enacted "That for and after the passing of this Act, sentence of death may be pronounced after convictions for murder, in the same manner, and the judge shall have the same power in all respects, as after convictions for other capital offences".

Now as the 9 Geo. 4 c. 31 only came into operation in this Colony by operation of the New South Wales Act 9 Geo. 4 c. 83 (as a statute in force prior to the passing of the latter Act) and as the alternatives of dissecting or hanging in chains given by that statute are now repealed and are no longer part of the sentence in cases of murder there is no longer any alternative direction to be given and all reason for the introduction of any direction whatsoever into the sentence has wholly ceased. The part of the directions of the Act 2 & 3 Wm 4 c. 75 for regulating schools of anatomy which directs the body to be buried within the precincts of the prison remains untouched and still continues as part of the law of England , but that Act has not been adopted by our local legislature. So the only part of the Act 4 & 5 Wm 4 c. 26 which could be construed to apply to this Colony, is the 2nd section which says "that in every case of conviction in Ireland of any prisoner for murder, the court before which such prisoner shall have been tried shall direct such prisoner to be buried within the precincts of the prison within which such prisoner shall have been confined after conviction, and the sentence to be pronounced by the court shall express that the body of such prisoner shall be buried within the precinct of such prison".

This clause is expressly confined to Ireland and applicable to Ireland only. This is an English colony, governed either by English laws passed before the 9 Geo. 4 c. 83 or which have been since adopted by the local legislature, or by local laws ordained for local purposes. No doubt the adopting Act 8 Wm 4 No. 2, after reciting this and other Acts on different subjects, enacts "that every clause, provision, and enactment therein respectively contained shall be and the same are and is hereby adopted and directed to be applied in the administration of justice in the said colony and its dependencies in like manner as other laws of England are therein applied". If the School of Anatomy Act 2 & 3 Wm 4 c. 75, which still retains the direction to bring the body in the case of murder committed in England , had been adopted by the local legislature, it might have been applied in this Colony in like manner as other laws of England are therein applied. But a law applicable to Ireland by name, cannot be said to be an English law, and applicable in like manner as other laws of England are therein applied. At all events the point was so doubtful, and in the absence of any adopted law of England authorizing internment within the precincts of the gaol, the Judges felt themselves bound by construction, to give effect to the plain language of the 6 & 7 Wm 4 c. 30, which places the manner of passing sentence after convictions for murder on the same footing as convictions for other capital offences.

It was held in R. v. Hartnett & Anor (1840) [ R. v. Hartnett & Anor (1840) Jebb's Irish Crown Cases 302], that the omission in pronouncing sentence on a conviction for murder in Ireland to order that the bodies of the prisoners should be buried within the precincts of the gaol, as directed by the 4 & 5 Wm 4 c. 26, s. 2, was held to be illegal notwithstanding the 6 & 7 Wm 4 c. 30. In that case Lord Denman C.J. of the English King's Bench in a letter to the Lord Chief Justice of Ireland certified that "though no case had come regularly before the judges of England on the point in the case stated, yet his Lordship had no doubt that they would come to the same decision as that which had taken place in Dublin." Two years before his Lordship had passed a sentence with the same defect, and found so strong a doubt of its legality prevailing amongst the judges, that it seemed prudent to recommend a commutation of the sentence. Certainly in England , said his Lordship "no sentence for murder will omit hereafter to include a direction for burying the convict's body". Entertaining as we do unbounded respect and reverence for the opinions of the judges both of England and Ireland, yet the decision referred to seems to us not to be ad idem, even though pronounced long after the resolution of the Judges of this Court in 1837 immediately after the adoption of the Acts.

In England by the 2 & 3 Wm 4 c. 75 burying within the precincts of the prison was made obligatory, but that Act not being adopted by our legislature it was considered as a law of England of no force here. The decision of the Irish judges went upon the 4 & 5 Wm 4 c. 26 which in terms prescribes the form of sentence for convicted murderers in Ireland . Assuming for now that by force of the adopting Act, 8 Wm 4 No. 2, that the provision for Ireland could be administered in this Colony in like manner as "other laws of England are therein applied" it being in fact a law for Ireland only, still the present case does not fall within the grammatical construction of the clause relating to Ireland. The sentence of death was in this case pronounced immediately after conviction and before the prisoner left the bar and returned to prison. Now the section in question directs that "the court before which such prisoner shall have been tried shall direct such prisoner to be buried within the precincts of the prison within which such prisoner shall have been confined after conviction". If the sentence be pronounced immediately after conviction this direction could not apply, for the section extends only to cases where the prisoner shall have been confined in some prison "after conviction".

I agreed therefore, if sentence be pronounced immediately after conviction and the prisoner shall not be confined in gaol after conviction and before sentence, then by unavoidable construction, there would be no prison precincts within which to direct him to be buried. Without however dwelling on so critical a construction, it appeared to the judges that as dissection or hanging in chains provided by the 9 Geo. 4 c. 31 had been severally repealed by the 2 & 3 Wm 4 c. 75 and the 4 & 5 Wm 4 c. 26 respectively, and there being no English law adopting the direction that the culprit should be buried within the precincts of the prison, the judges were compelled to resort to the general clause contained in the 6 & 7 Wm 4 c. 30, s. 2 and held that the sentence of death for murder in this Colony might be pronounced in the same manner as in other capital cases.

In coming to this decision the Judges were not influenced by any consideration of the ameliorated state of the law of England by the repeal of the ignominious part of the sentence which ordained either dissection or hanging in chains, nor by a sense of the obvious inconvenience of burying the dead bodies of criminals within the precincts of gaols in this hot climate, and still less by any reference to the necessity however imperious which frequently arises, of directing the execution to take place, for the sake of example, as near as possible to the scene of atrocity.

They went upon the plain language of the adopted English Act 6 & 7 Wm 4 c. 30, s. 2. From the construction they have put upon that Act, they see no reason now to depart or even to allow a discussion which could only bring in to question a course of justice which has been undeviatingly pursued for nearly seven years, without objection, although many of the miserable culprits towards whom the course had been pursued were ably defended by counsel learned in the law.

Published by the Division of Law, Macquarie University