R v Chiffey, 1843

Thomas Chifley, who was convicted of a nameless offence, was then placed at the bar, and addressed to the following effect:- His Honor observed, that he had been convicted upon very clear evidence of a most detestable crime, the penalty of which was death; he (the prisoner) was perhaps aware that the Executive Government had recently spared the lives of two men who had been convicted of a similar offence; of the views of the Government in doing so, his Honor knew nothing, neither had he known of any exception in this colony to the execution of the sentence for such crimes. It was his Honor’s duty to pass sentence of death upon the prisoner, and he would tell him, that he did not think there was anything in the prisoner’s case to induce the Executive to spare his life. If he had been guilty of the same crime as that with which the other two men had been charged, his Honor would not, he thought, have passed sentence of death upon him but merely ordered sentence of death to be recorded against him, for he never passed sentence of death upon a prisoner, unless he thought it would be carried into execution. His Honor could not tell whether the prisoner’s life would be spared, but his advice to him was to prepare to die; for aught his Honor knew, the sentence he was about to pass would be executed. During the last century, his Honor believed all similar cases, both in this colony and in England, had been punished with death, with the exception of the two men he had referred to, and the act which spared their lives emanated from the Executive, and not from the Legislative functionaries. The prisoner’s speedily death, therefore, might be considered inevitable, perhaps before this day week, and his Honor would advise him to give up all thoughts of having his life spared. His Honor then passed sentence of death upon the prisoner, and observed that if the Executive Government should spare his life, the observations his Honor made, would, if he took his advice, render him better prepared to pass the remainder of his wretched existence. With this view his Honor had offered these observations, but he could give him no hope of pardon, which there was nothing to justify, as his case was widely different from that of the two men who had been pardoned.

The prisoner was then removed, who, on this occasion, as on that of his trial, exhibited a stupid apathy, which appeared to render him callous to his dreadful fate.

[1] See also Hobart Town Advertiser, 19 September 1843, including “The criminal was advised to prepare for death, and not to expect mercy would be granted to him, although the Executive Council had undoubtedly the power of doing so”. According to AOT SC 41/5, on 5 September William Chiffey was charged with buggery of a mare. His sentence was commuted to transportation for life beyond the seas by Lieutenant-Governor Eardley-Wilmot against the wishes of the majority of the Executive Council, one member of which claiming that the offence was becoming more popular, R.P. Davis, The Tasmanian Gallows: A Study in Capital Punishment (Hobart, 1974), p. 32.

Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out. Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).