Research Brief 6
‘In the end’, says Australia’s Prime Minister appealing to the Indonesian government for clemency for Australian drug smugglers facing a firing squad, ‘mercy has to be a part of every justice system’.
The sentiment is noble. Mercy has been a prerogative of sovereigns and of the democratic governments that have succeeded them. There is an Australian history of mercy, both granted and withheld. But it is only three decades since the country finally abolished the death penalty from the statute book, at a time (1985) when more Australians still favoured the death penalty for murder over any other punishment.
In the colonial period, juries sometimes recommended mercy when reporting their verdicts convicting a person charged with a capital offence. Judges frequently agreed with them. Judicial reports went from a colonial Supreme Court to the Executive Council (the political Cabinet sitting with the Governor) which made a recommendation to the Governor to exercise the prerogative of mercy, or not. Constitutional convention by the later nineteenth century made the Cabinet’s recommendation one that governors would be unlikely to ignore.
A man who did not receive mercy was Henry James O’Farrell, hanged at Darlinghurst Gaol on 21 April 1868. Only a few weeks earlier he had attempted to assassinate Prince Alfred, Duke of Edinburgh and son of Queen Victoria. On 12 March 1868, while the Prince was attending a charity picnic at Clontarf on the north shore of Sydney Harbour, O’Farrell rushed at him with a Smith and Wesson revolver and shot the Prince in the back. The injuries were temporary, but O’Farrell was lucky to escape the mob who fell on him. He was rescued and carried away by the police and senior dignitaries including the Chief Justice, Sir Alfred Stephen.
The following morning the Sydney Morning Herald expressed relief that there had not been a lynching: ‘Deep and bitter as the feelings of the people were and will be… the cause of good government… would have suffered if the authority of law had been violently overthrown’. The colony was not free from crimes of violence, the editorial writer continued: ‘The assassin, however, has hitherto been a stranger’. Still the colony could comfort itself that ‘the crime is not of home growth. It is an importation, and we repudiate it’.
This was an illusion. The would-be assassin was a home-grown agent of his own imagining. The Dublin-born O’Farrell had arrived as a child of 6 or 7 with his parents in the colony of Victoria in 1841. Personal disappointments followed his failure to be ordained a priest in 1855, and were aggravated by his heavy drinking. O’Farrell appeared passionate about the cause of Ireland. He was also erratic, possibly mentally ill, intelligent but paranoid – and very prone to live in a fantasy world of his own construction. In the aftermath of the crime he claimed to be acting as one of the Fenians, dedicated to violent rebellion for Irish independence.
O’Farrell’s imagined Fenian plot convulsed New South Wales for most of 1868, before and after his death. In the most shameful act of his long career, Henry Parkes, colonial liberal and later federation father, also proved himself a sectarian Protestant outraged at O’Farrell’s treason. As Colonial Secretary, responsible for police and prisons, Parkes took it on himself to interview O’Farrell. Parkes was convinced that there had been a Fenian conspiracy, and continued a fruitless hunt for plotters long after receiving O’Farrell’s posthumously-released denial of any such plot.
As Attorney-General, the Premier, Sir James Martin, prosecuted for the Crown in the trial of O’Farrell on the charge of wounding with intent to murder. On 31 March after a 2 day trial during which his lawyers unsuccessfully pleaded their client’s insanity, O’Farrell was convicted and sentenced to death on this capital charge. The failure of O’Farrell’s insanity defence rendered him less fortunate than the many who made eight unsuccessful attempts on the life of the Prince’s mother, Queen Victoria.
Prince Alfred preferred that his assailant not be hanged and told the Governor so. His sentiment carried little weight with the colonial government. For Henry Parkes, the question was one of colonial autonomy. As he told his sister, ‘we did not think that His Royal Highness should interfere in the administration of our laws’. Advising the Sheriff that he should tell O’Farrell of his fate, Parkes instructed him that ‘it will be your duty to impress upon the prisoner that he must not entertain the slightest hope of mercy’.
On 8 April the news that O’Farrell would be executed was made public. And so he was, at Darlinghurst Gaol, on Monday 21 April, before a large number of invited spectators, politicians and government ministers among them. Many others had applied for entry, but were refused.
Often enough mercy was a part of the colonial justice system – but in Henry James O’Farrell’s case it was overwhelmed by a desperate politics, a dark side of colonial liberalism and self-regarding autonomy. In the course of resolving his fate, the political leaders of New South Wales in 1868 appeared no more ready to listen to the opinions of outsiders about what should be done with their convicted criminals than we now observe in the evident recalcitrance of the Indonesian government.
Author: Professor Mark Finnane, ARC Laureate Fellow
To cite this research brief: Mark Finnane, ‘No mercy for would-be assassin’, The Prosecution Project, Research Brief 6, https://prosecutionproject.griffith.edu.au/no-mercy-for-a-would-be-assassin (30 January 2015, viewed 19 July 2016).