Capital punishment: should Ronald Ryan and Jean Lee have been hanged?
Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
February, 1997, marks the thirtieth anniversary of the death of the last man executed in Australia, Ronald Ryan. At the same time, many of the official documents dealing with aspects of Ryan's case and the protests his execution aroused have been released. These documents have not previously been available.
In January, 1997, a book was published on Jean Lee, the last woman executed in Australia. February, 1997, is the forty-sixth anniversary of her death.
These events, together with the discussion regarding a suitable punishment for Port Arthur mass-murderer, Martin Bryant, have led to a brief reconsideration of capital punishment and a critical re-examination of some of the circumstances surrounding the executions of Ryan and Lee.
Background
On February 19, 1951, Jean Lee was executed at Melbourne's Pentridge Prison. She was the last woman hanged in Australia and the only woman to be executed in Australia this century.
On February 3, 1967, Ronald Ryan was hanged at Pentridge Prison. Ronald Ryan was the last person to be executed by the state in Australia.
Both Ronald Ryan and Jean Lee had been found guilty of murder.
Ronald Ryan was sentenced to death for the murder of prison warder, George Hodson. Mr Hodson was fatally shot during a prison escape involving Ronald Ryan and fellow prisoner, Peter Walker.
Ryan and Walker avoided recapture for 18 days. During that time Andrew Henderson was killed and Peter Walker was subsequently found to be responsible for his death.
Walker was charged with and convicted of manslaughter. He was sentenced to 25 years imprisonment for his crime.
Jean Lee was found guilty, along with Robert Clayton and Norman Andrews, of the murder of William Kent, a 73 year-old bookmaker, who was found was found strangled in his boarding room.
Lee, Clayton and Andrews were all hanged.
Arguments in favour of the executions of Ronald Ryan and Jean Lee.
There are four levels on which it is possible to consider this question.
Firstly, it is possible to consider the appropriateness of the executions with regard to the state of law and accepted legal practice at the time Lee and Ryan were executed.
Secondly, it is possible to consider contemporary popular attitudes to the executions.
Thirdly, it is possible to consider the appropriateness of these executions in terms of the arguments offered to support any instance of capital punishment.
Finally, it is possible to consider the question in terms of the form of punishment most likely to have been preferred by the person convicted of murder.
The first major argument offered in support of the appropriateness of the executions of Ronald Ryan and Jean Lee is that at the time each was found guilty of murder capital punishment was the mandatory sentence for such an offence. Sentencing judges had no discretion in this matter, any person found guilty of murder was automatically sentenced to death.
This position has been put by Carol Hodson, daughter of the prison warder, George Hodson, who was shot dead during Ryan and Walker's escape.
`One part of me says the jury found him guilty, and that [capital punishment] was the law at the time,' Ms Hodson has observed.
According to this line of argument, Ryan was tried and found guilty by a jury of his peers and the mandatory sentence for the crime of which he was convicted was death.
The same argument can also be offered in relation to Jean Lee who was tried and then judged guilty by a jury. At the time of her conviction, also, death was the mandatory sentence for murder.
The second major argument offered to support the claim that the execution of Ryan and, by extension, of Lee, were appropriate is that they were supported by a majority of contemporary citizens.
Referring to those who protested against Ronald Ryan's hanging, the then Victorian Premier, Henry Bolte, dismissed those who objected to the execution as predominantly politically motivated.
According to this line of argument, most of those who protested against the execution of Ronald Ryan, were not genuinely opposed to capital punishment - they were either political opponents of Mr Bolte's or had a particular prejudice against Australia's system of government and its legal institutions.
At a press conference before the execution, Henry Bolte, apparently claimed that the only people opposed to the execution of Ryan were `A few leaders of the church and a few leaders of the press. And there are also a few professors at the university who feel they've got to protest against something. But the rest are political, the rest are thugs.'
Henry Bolte also doubted the validity of the opposition to the execution of the Pentridge Prison chaplain, Father Brosnan.
Henry Bolte told his biographer, Tom Prior, `People of Irish extraction, like Father Brosnan, are always criticising British imperialism and British law ...'
It has also been claimed that the result of the next Victorian election after Ronald Ryan's execution indicates that a majority of people supported the premier in his determination to have Ryan executed.
The election occurred some two months after the execution and saw Henry Bolte's Liberal Government returned with an increased majority.
Bolte was so convinced of popular support for the execution of convicted murderers that he advised Jeff Kennett, when he was a leader of the Opposition, to announce a policy of support for capital punishment. Mr Bolte appeared to believe that such a policy would win Mr Kennett votes.
It has also been claimed that only a minority of Victorians were opposed to the execution of Jean Lee.
Opposition to Lee's execution appears to have come primarily from women's groups within the Australian Labor Party and from the Women's Christian Temperance Movement. It has been claimed that these groups were more opposed to the execution of a woman than they were to capital punishment in itself.
The third major set of arguments offered in support of the execution of Ryan and Lee are those usually offered in support of capital punishment per se.
These are that capital punishment is the most just and appropriate punishment for someone who has taken a life; that capital punishment acts as a deterrent and that capital punishment prevents the offender repeating their crime.
In terms of capital punishment being the most just and appropriate punishment for someone who has taken a life, it has been claimed that Ryan brought about the death of a 41 year-old husband and father, George Hodson, and that his own death was the most fitting penalty that could be imposed.
Though Carol Hodson, George Hodson's daughter, is not a clear supporter of capital punishment, she notes, `There's two issues here, the crime and the punishment. I don't know if they went together, but people mustn't forget that my father lost his life and Ryan is ultimately responsible.'
This position has been put more directly by Claude Forell, an editorial writer and public affairs columnist for The Age, who has argued, `Retribution is still a legitimate aim of punishment: to express society's revulsion at the gravity of a crime and to satisfy the public that justice has been done.
`Capital punishment is the extreme form of retribution and arguably justified in response to the most extreme offences.'
With regard to Jean Lee, it has been claimed that the murder in which she was found to have been an accomplice was a particularly unpleasant crime in which the victim was tortured prior to his death.
Arguing from the deterrence value of capital punishment, it has been noted that in the case of Ryan, his crime was particularly serious because he had been found guilty of murdering a prison warder.
Prison warders and police officers are direct law enforcement officers, charged with protecting public safety; an attack upon them can thus be seen as a direct attack upon the security of the community at large.
It has therefore been argued that it is important that those who kill law enforcement officers be punished to the full extent of the law so as to discourage others from acting similarly.
It has been claimed, arguing from this point of view, that some of the warders at Pentridge were concerned that Ryan hang so that other prisoners would not contemplate reckless and dangerous actions.
Dr John McEncroe, who attended a sick prisoner at Pentridge early on the morning of February 3, 1967, has claimed that a warder told him that the execution would be good for prison discipline.
Dr McEncroe has quoted the warder as saying, `This'll keep them quiet for a while.'
A similar deterrence claim has been made in relation to Jean Lee.
Though they do not support this as a justification for her execution, Paul Wilson, Don Treble and Robyn Lincoln (who have recently had published a book on Lee) claim that one of the reasons for Jean Lee's execution was to send a clear message to women at large regarding acceptable behaviour in the period of social change following World War II.
From the point of view of preventing a recurrence of the crime by the perpetrator, capital punishment is obviously effective.
Claude Forell has observed, `No one who has been properly executed has ever offended again.'
The final perspective from which it is possible to justify capital punishment is that of the person to be executed. According to this line of argument, capital punishment may be a more humane form of punishment than life in prison, and may even be preferred over life in prison by the person to be executed.
This claim has been made in relation to Ronald Ryan.
Ryan's defence counsel, Mr Opas, has claimed, `At the finish, I think he [Ronald Ryan] wanted to die.'
Ryan is claimed to have remarked to Father John Brosnan, who was his chaplain in prison and who later accompanied him to the gallows, `I could not possibly face another twenty years in this loveless place.'
This position has been developed further by Claude Forell.
Mr Forell has cited George Bernard Shaw's view that even the best-run prisons were `diabolical dens of torment, mischief and damnation.'
According to the line of argument presented by Mr Forell, prisons `crushed and degraded ... those condemned to long incarceration' to an extent which, he claims, makes capital punishment a more reasonable and humane alternative.
(It is not possible to say whether Jean Lee would have preferred execution to life in prison. She is not reported in the papers as having expressed such a view and appears to have fought against her execution right up to her death.)
Arguments against the executions of Ronald Ryan and Jean Lee
One of the main arguments offered against the execution of Ronald Ryan is that he may not have committed the crime of which he was found guilty.
Philip Opas, QC, Ryan's defence counsel has claimed there were a number of significant weaknesses in the case made against Ryan.
These weaknesses included the fact that neither the bullet which passed through George Hodson's body nor the spent cartridge which should have come from Ryan's gun, had he fired, were ever found.
Mr Opas has argued that, as a warder also fired from the walls of the prison, without evidence that the bullet which killed George Hodson actually came from Ryan's gun, Ryan should not have been convicted of murder.
Philip Opas has also argued that there is no conclusive evidence that Ryan actually fired the M1 carbine he was carrying at all.
Though numerous witnesses saw Ryan take aim at George Hodson, those who claimed to see him fire also claimed to see the gun recoil and smoke come from it. As the weapon was loaded with smokeless ammunition and does not have a recoil, Opas has argued that the evidence of these witnesses cannot be accepted as final.
Opas has also noted that the gun that Ryan was carrying was never tested to see if it had been fired. The prosecution regarded it as sufficient that the barrel was dirty, as though it had been fired. Opas has argued that as no samples were taken for analysis the fact that the barrel appeared dirty was not sufficient proof that the weapon had been discharged.
Opas has also stressed that under cross examination, the warder, Helmut Lange, from whom Ryan took the M1 carbine, claimed that Ryan cocked the weapon while the safety was still on. This action would have ejected a bullet.
Opas has argued this would explain the unaccounted for bullet from the rifle, which the prosecution claimed was the bullet which killed George Hodson.
Opas has also argued that the angle at which the bullet entered and passed through George Hodson's body meant that the weapon which killed him had been fired from above him. This, Opas claims, supports his belief that George Hodson was accidentally shot by a warder firing from the prison walls.
Philip Opas concludes , ` I believe an innocent man was sent to the gallows.'
Mr Opas has claimed, `At the time I accepted the Ryan brief, I believed in capital punishment. Too many of my close friends ... died in the war almost before they had lived for me to shed any tears of sympathy over a murderer.
`Ronald Ryan changed all that. By the time the trial was over I believed that he was not guilty of murder.'
For many critics of Ryan's execution, and capital punishment generally, Ryan's case demonstrates the fallibility of the legal system.
According to those who hold this view, the facts of the case were such that Ryan should never have been found guilty of murder, as there were grounds for reasonable doubt that he had shot George Hodson.
From this position capital punishment should never be available, as there is always the possibility that an innocent person could be executed.
With regard to Jean Lee, it appears that she did take part in the torture that proceeded William Kent's death and that she may have been present at the time Robert Clayton strangled him, however it was stated by her trial judge that she would not have had the physical strength to kill William Kent herself.
Jean Lee was found guilty of William Kent's murder as the accomplice of Robert Clayton and Norman Andrews (though it appeared that Andrews took no active part in the murder either and may in fact have been in another room at the time it took place.).
They were all found guilty and executed in accord with the concept of `collective guilt'.
Critics of the judgement have disputed whether Lee or Andrews would have been able to avert William Kent's death and have also noted that Robert Clayton probably did not intend it.
There are those who dispute whether any of those accused should have been charged with murder, let alone executed.
It has also been claimed that a number of perversions of justice occurred prior to and during Lee's trial.
It has been claimed that Lee was trapped into her original false confession; that some of the evidence against her was inadmissible and that some of the witnesses against her probably perjured themselves.
Critics of Jean Lee's case argue that even if Lee were not without blame, she should neither have been charged with nor found guilty of murder and so should never have been executed.
With regard to supposed popular support for capital punishment, no survey results have been printed in the current media, indicating public attitudes at the time Jean Lee was hanged,.
However, it has been claimed that surveys taken in the 1960s, prior to the Ryan hanging, indicate that a majority of people were opposed to capital punishment at the time Ryan was executed.
A columnist for The Australian, Nicolas Rothwell, has claimed that surveys indicated that two years before Ryan's death only 42 per cent of people supported capital punishment. The then attorney-general, Billy Snedden has been quoted as speaking of a `strong movement of opinion against capital punishment, especially among the young.'
Those who criticise the execution of Ryan and Lee also criticise the manner in which it was decided whether each would be executed.
Though death by hanging was the mandatory sentence for all who were found guilty of murder, most convicted murderers had their death sentences commuted to life in prison.
During Henry Bolte's premiership, by the time Ronald Ryan was convicted of murder, 35 other convicted murders had had their sentences commuted by the executive council.
The executive council is made up of the governor, the premier and a small number of other key members of Cabinet.
It has been claimed that it had become a matter of executive whim whether a person were executed or reprieved.
This position has been put by Claude Forell, columnist for The Age, who has stated, `To keep the death penalty on the statute book but routinely commute the sentence to "life" imprisonment made a mockery of its supposed deterrent value.
`And to exercise it once in a while at the whim of a populist politician seemed cruel and capricious.'
In the cases of both Ryan and Lee it has been claimed that there were grounds for clemency and yet neither had their sentence commuted.
It has particularly been claimed that in the case of Ryan, the then premier, Henry Bolte had come to see the case as a test of his personal and political authority and was single-mindedly determined that Ryan should hang.
Henry Bolte is reported to have claimed that the then editor of The Age, Graham Perkin, `pleaded with me' with `tears in his eyes' not to hang Ryan. Bolte is claimed to have responded, `The harder you campaign, the tighter the noose around Ryan's neck.'
Commenting later about the protests that proceeded Ryan's hanging, Henry Bolte apparently stated, `I loved it, I loved every minute of it and I'd do it again tomorrow.'
The few Liberal members of parliament who opposed the hanging publicly were, it has been claimed, accused of disloyalty. One such, Brain Dixon, was apparently told by the premier that as a result of his actions his political career was `at an end' and he was not made a minister until after Henry Bolte had retired.
In the case of Jean Lee it has been claimed the then government appeared so determined to proceed with her hanging that it behaved improperly in order to bring her execution about.
The government has been said to have prevented Lee making an appeal to the Australian High Court to have her sentence overturned. (This action had never been taken before and has never been taken since.)
When Lee's later appeal to Britain's Privy Council was dismissed (on grounds which were subsequently discovered to be improper) the Victorian government illegally scheduled the executions before receiving official notice of the result of the Privy Council appeal.
The executions have also been criticised on the grounds that any state-sanctioned death undermines a civilised society.
According to this line of argument, the legally-sanctioned taking of a life is no better, and perhaps worse, (because totally premeditated) than the crime for which the person to be executed is being punished.
A number of those who witnessed Ryan's execution have later stated that the experience converted them into opponents of capital punishment. They have stressed the contrast between Ryan's helplessness and the brutal manner in which his life was taken.
In the case of Jean Lee the brutality has been said to have been even more apparent. Lee was so distressed that she was heavily sedated and appeared unconscious when executed. She was hanged strapped in a chair because she was unable to stand.
Finally it has been argued that capital punishment serves no deterrent purpose.
The Herald Sun in its editorial of January 19, cited American figures which appear to demonstrate that capital punishment has failed to reduce the murder rate, while other critics have argued that most people about to commit murder either believe they will not be apprehended or are not in a mental state that would allow them to care about the consequences of their actions.
Further implications
It has been repeatedly claimed that Australia is unlikely to re-introduce capital punishment.
The most recent poll taken on popular attitudes to capital punishment in Victoria was run by the current Liberal government as part of their sentencing review survey distributed through The Herald Sun.
The survey indicated that only 13 per cent of Victorians wanted to see capital punishment as a penalty for murder.
It has been claimed that negative reactions to the executions of both Ronald Ryan and Jean Lee have helped to create a popular and political climate opposed to capital punishment.
It has also been suggested that widely publicised miscarriages of justice, such as the conviction of Lindy Chamberlain for the murder of her baby, have served to make people aware of the possibility of legal and judicial error which, if capital punishment were available, could cost an innocent person his or her life.
Currently, only one Australian premier, Premier Richard Court, in Western Australia, supports the re-introduction of capital punishment. He does not appear to have sufficient support within his party to take the issue to a referendum.
The reaction of Tasmania and Australia as a whole to mass-murderer Martin Bryant has also shown a surprising reluctance to demand the re-introduction of capital punishment.
With regard to both Ronald Ryan and Jean Lee it seems highly unlikely that any official action will ever be taken to examine the circumstances surrounding their executions.
It is interesting to note that now that Pentridge is to be closed and partially re-developed the question arises as to what should happen to the remains of executed prisoners buried in unmarked graves within the grounds of the prison.
Both Lee and Ryan were buried in this manner. Ronald Ryan's daughter Wendy wants her father's body properly buried. It remains to be seen what decision the current government will make regarding this.
Sources
The Age
8/12/97 page 16 comment by Claude Forell, `A swinging opinion'
1/2/97 page 1 news item by Sandra McKay, `Pain and passion keep hanging memories alive'
1/2/97 page 8 analysis by Paul Ormonde, `The lives that changed as Ryan's ended'
2/2/97 page 16 editorial, `Lessons in Bolte's unintended legacy'
2/2/97 page 1 (Agenda section) Comment By Michael Magazanik, `This vile deed'
3/2/97 page 1 (Metro section) comment by Barry Dickins, `8am, 3 February, 1967. Ryan hangs'
4/2/97 page 11 comment by Gerard Henderson, `Final gesture for hanged prisoners'
The Australian
18/1/97 page 20(Australian Magazine) analysis by Jean Norman, `The last woman hanged'
1/2/97 page 1 news item by Cameron Forbes, `An unending crusade for Ryan's daughter'
1/2/97 page 1 (Review section) analysis by Nicolas Rothwell, `Final execution'
1/2/97 page 1 (Review section) comment by Evan Whitton, `Face to face with death'
The Herald Sun
19/1/97 page 5 news item by Derek Ballantine, `Bullet may have cleared Ryan'
19/1/97 page 39 analysis by Derek Ballantine, `The case that won't die'
19/1/97 page 40 editorial, `Never again'
19/1/97 page 79 analysis by Graeme Hammond, `Innocent trio sentenced to death'
19/1/97 page 80 analysis by Russell Robinson, `Haunted by hanging'
19/1/97 page 80 comment by Philip Opas, `The death that changed my life'
1/2/97 page 1 news item by Michelle Coffey, `Secrets of Ryan's jury'
1/2/97 page 4 analysis by Michelle Coffey, `The battle for Ryan's life'
1/2/97 page 4 analysis by Michelle Coffey, `Pain and anger continue for daughter of forgotten hero'
3/2/97 page 1 news item by Michelle Coffey, `Ryan's hidden letter'
3/2/97 page 14 analysis by Michelle Coffey, `Code hid lasting love'
`I believe an innocent man was sent to the gallows.'
Philip Opas, QC, Ronald Ryan's defence counsel
`People mustn't forget that my father lost his life and Ryan is ultimately responsible.'
Carol Hodson, daughter of the man Ronald Ryan was convicted of murdering