Capital punishment in New Zealand

The method of execution was always by hanging.[2] At first, there were many possible execution sites all around the country, but later, the only two cities where hangings were carried out were Wellington (the capital) and Auckland (now the largest city). Initially, there was no professional hangman employed—the executioner was simply chosen from among any who were deemed qualified. On occasion, convicted criminals were employed as hangmen, often in exchange for reduced sentences or monetary reward. In 1877, the sheriff of Blenheim recommended that a professional executioner be hired. Tom Long, an Irishman who claimed to have been an executioner in Australia, was hired as the first official hangman. He was the only official hangman to be publicly known; others remained anonymous.

Drawing of Maketū, the first person formally executed in New Zealand

The first person to be executed was Wiremu Kīngi Maketū,[2] who was found guilty of murdering five people on Motuarohia Island, in the Bay of Islands. The people killed were Thomas Bull, employed by Elisabeth Roberton, who was also murdered along with her son aged eight, her daughter of two, and a girl of nearly three named Isabella Brind, the natural daughter of one Captain Brind by a Māori woman, the daughter of Rewa, chief of Ngapuhi in that area. Mrs Roberton's husband, Captain John Roberton, had drowned prior in Paroa Bay, just opposite the island. Thomas Bull had a reputation for strength and brutality. He seemed at all times to have made a set at Maketū and had on several occasions struck, thrown, or otherwise maltreated him. Maketū, was unable to defend himself against such an opponent; nor indeed did it conform with his notions of dignity to do so, he being by virtue of his chiefly rank above combat with one who was a servant and whom he therefore regarded on the same plane as a slave. Maketū, therefore, bided his time for revenge. Maketū then killed Thomas Bull in the night with an axe; he then brutally murdered Mrs Roberton, who was shouting abuse at him and then went to murder the two girls (ransacking the house and then burning Mrs Roberton and the two children within it). The boy ran up Pa Hill, where Maketū chased him and threw him off the 200-foot (60 m) cliff. He was sentenced to death by an all-white jury (his defence had wanted a half-white, half-Māori jury) in an Auckland court, and executed on 7 March 1842.[3]

Death certificate of Minnie Dean. On 12 August 1895, Dean was hanged at Invercargill gaol after being found guilty of infanticide, becoming the only woman ever to have been executed in New Zealand.

Nearly all the people executed were men—with the exception of Minnie Dean, found guilty of infanticide in 1895—and all were convicted of murder, except for Hamiora Pere, convicted of treason. However, before Dean's trial, imprisonment and execution, several other women had been found guilty of Infanticide in nineteenth-century New Zealand, but had had their death sentences commuted to life imprisonment. These were Caroline Whitting (1872), Phoebe Veitch (1883) and Sarah-Jane and Anna Flannagan (1891). The last person to be executed was Walter James Bolton, for poisoning his wife, on 18 February 1957.[1]

When the Labour Party formed its first government following the 1935 general election, it commuted all death sentences to life imprisonment. The Crimes Amendment Act 1941 [4] changed the penalty for murder from death to life imprisonment with hard labour. The only crimes for which the death penalty still applied were treason and piracy.

The Labour Party lost power to the more conservative National Party, which had pledged to reintroduce capital punishment, in 1949. During that earlier period, support and opposition for capital punishment were clearly delineated on partisan grounds. The National Party supported the restoration and maintenance of the death penalty, while the Labour Party opposed it.[5] During debate over the Capital Punishment Act 1950 (which exempted expectant mothers and juveniles under 18), [6] Labour expressed concern about the constitutional implications of the concentration of executive power in this context (although Labour had used this power from 1935 to 1941), while National Party Attorney-General Clifton Webb referred to the alleged "deterrent" value of the death penalty as potential threat and punitive severity.[7] However, Webb was relatively sparing in his use of the death penalty, while his successor, Attorney-General Jack Marshall (1955–1957), was a hardliner on that issue and the number and pace of executions accelerated, arousing debate.

During the time that the National Party was in office (1949–1957), 36 people were convicted of murder, and 22 of those were sentenced to death (George Horry was convicted of murder in 1951 but not hanged because the death penalty was not in force in 1942). The final decision on executions rested with Cabinet, and only eight of the condemned were executed. The rest were commuted to life imprisonment. Even then, professional opinion was divided. Film censor Gordon Mirams did not regard spectacles of hanging as appropriate content within crime dramas and western films and excised such content and dialogue on the basis of family propriety.[8]

According to Department of Justice historian Pauline Engel, the British Royal Commission on Capital Punishment (1953) may have heavily influenced the rise of abolitionism, as did the controversies that surrounded the executions of Harry Whiteland and Edward Te Whiu,[9] which raised questions about post-war trauma, intellectual and developmental disability as factors for leniency.

Social historian Redmer Yska has argued that such concern arose much earlier. When the National Party restored capital punishment in 1950, it became an administrative ordeal for civil servants involved, particularly those within correctional facilities like Mount Eden Prison in Auckland, law enforcement and the judiciary.[10] Corrections staff needed to maintain suicide watch for the convicted felon, conduct regular health checks and provide pastoral care for the condemned individual's relatives, as well as insure prison security during executions.[11]

Official requirements mandated the presence of a magistrate, doctor and sheriffs.[12] During the late fifties, Attorney-General Jack Marshall accelerated the pace of executions and post-traumatic stress disorder, alcoholism and duodenal haemorrhaging developed amongst two of the three staff obliged to participate during execution procedures.[12] In cases of political import, prudent reprieves and commuted penalties did occur, as happened when three Niue Islanders were sentenced to death after killing a manifestly brutal and oppressive Resident Commissioner (and were reprieved only after New Zealand prison officials had reached Niue to carry out the hangings).[13] On that occasion, the Public Questions Committee of the Presbyterian Church of New Zealand became involved in strenuously lobbying against the verdict.[12]

Class differences were also seen to affect the verdict. Dr. Senga Wintringham was convicted of manslaughter, rather than murder, in February 1955, after shooting and killing Dr Bill Saunders. Wintringham claimed that she had only meant to intimidate him, rather than kill him. The Peoples Voice, newspaper of the Communist Party of New Zealand, criticised the perceived "double standard" in this context, as the courts had just convicted and sentenced nineteen-year-old British migrant and itinerant labourer Frederick Foster to death, despite questions about mental illness and intellectual impairment in his context, as well as appeals from his mother.[14] Foster had shot and killed Sharon Skeffington, his former girlfriend. Although Foster was sentenced to death and executed, defence counsel Dr Martyn Finlay succeeded in raising questions about the limited intellectual capabilities and mental health of the condemned person in this context.[15] Similar questions would arise in the trial, conviction and execution of Albert Webb. The New Zealand Listener editorialised against the death penalty in July 1955, and received supportive feedback from its letters page correspondents.[16]

Eddie Te Whiu was hanged in August 1955, after he had killed an elderly widow in Ngararatunua, near Kamo, when an attempted burglary went wrong.[9] Abolitionist sentiment grew again, as, with the Foster and Black cases, there was perceptible anxiety about the failure of "deterrence" value in the context of violent homicides, and whether Te Whiu should have been convicted of manslaughter instead, due to his dysfunctional family origins and limited intellectual capabilities.[17] As a result, a National Committee for Abolition of the Death Penalty was formed in November 1956, with branches in Auckland, Wellington, Christchurch and Dunedin.

Engel and Maureen Garing have drawn attention to the involvement of Protestant Christian opposition to capital punishment. In 1941 and 1951, the Christian Social Justice League, Christchurch Anglican Diocesan Synod and Methodist Public Questions Committee supported abolition, as did individual Catholics, although their hierarchy remained neutral in this debate. The New Zealand Theosophical Society also opposed capital punishment, and the Churches of Christ and Baptist Union declared its opposition in the late fifties. As religious opposition grew, it provided opponents of capital punishment with an organisational base that was used to good effect. Redmer Yska notes that clergy often refused to participate in legitimising executions through their presence, of whatever denomination.[11]

As a consequence of controversy over the perceived escalation in use of capital punishment, abolitionist petitions started to circulate as well. In 1956, a proposal for a referendum on capital punishment was put forward by the Minister of Justice, Jack Marshall. This referendum was to be voted on during the 1957 general election, but the proposal was defeated.

Meanwhile, Walter James Bolton (1888–1957) was executed at Mount Eden Prison in Auckland in February 1957, after he had allegedly poisoned his wife with arsenic. Given that the National Party lost that election, there were to be no further executions within New Zealand. However, while the election saw a short-lived Labour government elected, capital punishment was not debated in Parliament again before the National party regained power after the 1960 election.

In 1961, the National Party reaffirmed its support for the death penalty, although restricted its use to premeditated murders, and those committed during another crime or during an escape from custody. The issue of capital punishment generated intensive debate within the National Party—the Minister of Justice in the Second National Government, who was responsible for introducing the Crimes Bill 1961, Ralph Hanan, strongly opposed the death penalty, while Jack Marshall, the Deputy Prime Minister, had supported its use while serving as Minister of Justice and Attorney General, as noted above.

Aware of growing public opposition to capital punishment, the National Party allowed its MPs to exercise a conscience vote in Parliament, and ten National MPs subsequently voted in favour of abolition. The result was a majority of 11 against capital punishment, 41–30. The ten National MPs were Ernest Aderman, Gordon Grieve, Ralph Hanan, Duncan MacIntyre, Robert Muldoon, Herbert Pickering, Logan Sloane, Brian Talboys, Esme Tombleson and Bert Walker. The death penalty was therefore abolished for murder, being retained only for treason and other similar acts in theory. In principle, this meant that de facto abolition had occurred from that point onward.[1]

These last theoretical vestiges of capital punishment were abolished under the Palmer Labour cabinet in November 1989 with the passage of the Abolition of the Death Penalty Act 1989, [18] and there were no further executions during the interim period.[1] Passage of the Abolition of the Death Penalty Act ended all capital punishment in New Zealand. The Cook Islands, which based its statutes on New Zealand law, formally retained the death penalty for treason until it was abolished in 2007. The death penalty was never used in the Cook Islands.[19]

Occasional calls to reinstate capital punishment still occur, but no major political party has made capital punishment an element of any of their election manifestos since the 1989 Abolition act.

A 2004 1 News Colmar Brunton poll found 28% were in favour of bringing back the death penalty, 67% did not want to bring the death penalty back, and 5% were undecided.[20] In a 2013 Curia poll for TV3’s The Nation, 38% of New Zealanders were in favour of the death penalty—a nominal increase from the 28% in 2004—while 55% were opposed it, and 7% were undecided. Also in the poll, 35% of Labour voters favoured the death penalty and National voters' support polled at 44%. Least likely to be in favour were Green Party voters at 19%, but the strongest support came from New Zealand First voters at 84%.[21][22]

• Capital punishment in the Cook Islands
• List of people executed in New Zealand

• Department of Justice (1974) [1968]. Crime in New Zealand: A Survey of New Zealand Criminal Behaviour. Wellington: A R Shearer Government Printer. (Homicide: Chapter 2, pp20-83)
• Creswell, J.C.M. (1998) Murder in paradise: The strange adventures of the Roberton brothers Whangarei: J.M. Glover ISBN 1-876135-00-X
• Engel, Pauline (1977): The Abolition of Capital Punishment in New Zealand: Wellington: Department of Justice.
• Gee, David (1975). The devil's own brigade: A History of Lyttelton Gaol: Wellington: Millwood Press.
• Garing, Maureen (1994): "Lex talionis and the Christian Churches: The Question of Capital Punishment in New Zealand" (p. 112–122) in J.Veitch (ed) To Strive and Not to Yield: Essays in Honour of Colin Brown: Wellington: Victoria University Department of Religious Studies: ISBN 0-475-11013-7
• Harcourt, Melville (1942). A Parson In Prison: Auckland: Whitcombs and Tombs.
• Howard League for Penal Reform (1949) Capital Punishment: An Inquiry: Wellington: Howard League for Penal Reform.
• Newbold, Greg (1990). "Capital Punishment in New Zealand: An Experiment that Failed" Deviant Behaviour: 11:2 (April 1990): 154–177.
• Ross, Cuthbert (1993) Issues in the Death Penalty Debate in New Zealand: 1935–1992 LLB (Hons) Dissertation: University of Auckland Faculty of Law
• Treadwell, C A L (1936). Notable New Zealand Trials: New Plymouth: T.Avery.
• Young, Sherwood (1998) Guilty on the Gallows: Famous Capital Crimes of New Zealand: Wellington: Grantham House: ISBN 1-86934-068-X
• Yska, Redmer (1996) All Shook Up: Auckland: Penguin: 1996: ISBN 0-14-016999-7
• Meccano Set, a program by Radio New Zealand produced by Matthew Leonard and Paul Diamond

• Capital Punishment in New Zealand at NZHistory.net
• Capital Punishment in 1966 Encyclopaedia of New Zealand
• Abolition of the Death Penalty Act 1989
• Dictionary of New Zealand Biography (articles on Maketu, Dean, Marshall, and Hanan)
• The Howard League