David Plater, University of South Australia School of Law, has posted two articles on the history of criminal prosecution and punishment Down Under. The first, with
Sangeetha Royan is
The Development and Application in Nineteenth Century Australia of the Prosecutor's Role as a Minister of Justice: Rhetoric or Reality? Here is the abstract:
The English notion of the proper prosecutorial role as that of the non-partisan ‘minister of justice’ was expressed in Australia by colonial legal practitioners but in practice the application of this role was to often prove a matter of rhetoric rather than of reality. Prosecutors in practice often acted as zealous and partisan advocates. This article considers the development of the prosecutorial role in Australia from 1824 to the early 20th century and, in particular, the extent to which the minister of justice model was applied in Australia. This article also examines the factors that influenced the perception and performance of the prosecutorial role in Australia. It is suggested that colonial prosecutors in practice were motivated by subjective factors such as the class or race of the accused and the nature of the crime that they were charged with. Prosecutorial zeal appears explicable, not by the tension of acting in an adversarial system, but in confronting defendants who were regarded as ‘criminals of the deepest dye’ who posed a real ‘threat’ to colonial society. Though the minister of justice role was applied in Australia on occasion, it was often reserved for ‘respectable’ defendants and to be the apparent product of class bias rather than genuine prosecutorial restraint. Nevertheless, despite the inconsistent development in Australia of the minister of justice role, as the 19th century progressed, it was increasingly applied as a matter of both rhetoric and reality, reflecting the increasing stability and confidence of the Australian colonies.
The second, with
Sue Milne, University of South Australia School of Law, is
‘The
Quality of Mercy is Not Strained’: The Norfolk Island Mutineers and the
Exercise of the Death Penalty in Colonial Australia 1824-1860. Here is the abstract:
The
exercise of the death penalty in England in the 19th century has long
been a subject of academic scrutiny and popular interest. Scholars have
also studied the role and importance of the prerogative of mercy in the
context of the capital sanction. The exercise of both the death penalty
and the prerogative of mercy, in comparison, in colonial Australia have
been often overlooked. This article, which is part of a wider ongoing
study, considers the rationale and operation of the prerogative of mercy
in colonial Australia during the period 1824 to 1860. The focus is on
those convicted of a capital offence in the Australian colonies,
particularly convicts already serving a sentence for previous offences,
and who, indeed, might also be a previous recipient of a pardon. The
article considers the question of secondary punishment and the grant of
mercy in respect of three notable incidences of mutiny and piracy at
Norfolk Island in 1827, 1834 and 1842. This article argues that whilst
there was manifest a strong theme of punishment and deterrence in the
exercise of the death penalty, these were not the sole or even paramount
considerations. Rather it is argued that the colonial authorities, even
in relation to those offenders who were “beyond the pale” such as the
Norfolk Island mutineers, took seriously the exercise of mercy in the
context of emerging self-government. The implementation of the death
penalty was not randomly administered, but was considered within the
operation of the rule of law, where, as far as possible, even in respect
of offenders of the “deepest dye,” “mercy seasons justice.”