The execution of Charles Patrick Joseph O’Leary – By Dr Auke ‘JJ’ Steensma

The execution of Charles Patrick Joseph O’Leary

DR AUKE ‘JJ’ STEENSMA, MANGING DIRECTOR, STEENSMA PTY LTD

Like a candle that’s set In the window at night, Your fond love has cheered me And guided me right.

Mother Machree, by Rida Johnson Young & Ernest Ball 1

At 7.50am on Thursday, 14 November 1946, Charles Patrick Joseph O’Leary 2 was heard to sing the 1910 American-Irish song; Mother Machree, a song that he claimed his mother would sing to him when he was a young lad. Ten minutes later, O’Leary, whose mortal body had been given to the Sheriff Mr A.S. Blackman, was taken from the cell that held the condemned on the first floor of the A-Wing, New Building at the Adelaide Gaol. His hands and arms were pinioned to a belt that went about his waist, by the hangman. O’Leary was led to the trap of the gallows a small distance away. He faced south, looking towards the large windows that were covered by a sheet. The identity of the hangman being only known to the Gaol keeper and the Sheriff. Outside a large contingent of mounted motor traffic and foot police encompassed the Gaol as it was feared that demonstrations would break out; 3

though the prepurted trouble did not eventuate. The Barrier Miner newspaper of Broken Hill quoted that other than the hangman, the only people that were present at the execution were; “the Sheriff, the Prison Medical Officer, Gaol Keeper, two police officers, two priests, and four prison guards”. 4 O’Leary was asked if he had anything to say, to which he replied with a smile on his face; “Thank you, gentlemen”. 5

Morton et al. claim that “on the scaffold, O’Leary is reputed to have sung, ‘it’s a great day for the Irish’.” 6 In a matter of seconds, the hangman’s assistant pinioned the ankles of O’Leary. A hood was placed over his head, and the hangman’s rope was placed on the left side of his neck with the knot placed under his left ear. Two prison guards stood on boards on either side of O’Leary to ensure that he remained upright. The hangman moved into the adjourning cell, waited for the signal from the Sheriff, which came immediately, and the lever was pulled. O’Leary dropped the “prescribed distance” and paid the ultimate price for the murder of Walter ‘Spoggy’ Ballard, a 58-year-old sawmill hand, at Nangwarry, on 7 July of that year. It was the 60 th

execution to be conducted in South Australia. O’Leary was left to hang for the mandatory one hour. The body of O’Leary was then taken down, and an inquest was conducted by the Acting City Coroner, Mr Zeesing, who had arrived at Adelaide Gaol at some time before 9am. 7 Ironically the inquest was performed to determine whether the cause of death was attributed to the breaking of the spinal cord, as should and was the case, or from a heart attack or strangulation. O’Leary’s death was instantaneous. Mr Zeesing would have asked the Sheriff whether the execution had been conducted in a manner per the rules with the law. The sheriff acknowledged the conduct.

After the inquest, the body of O’Leary was buried in the grounds of the New Building at the Adelaide Gaol, “in a pre-dug grave at the southern end of the building”, 8

colloquially known as “Murderer’s Row”. His initials and the date of his execution are painted on the wall and read: 29 C.P.J. O’L. 14-11-46. 9 O’Leary had been found guilty of the murder of Ballard. O’Leary and several other employees at a timber cam at the Government sawmill at Nangwarry had started drinking early on Saturday morning and continued well into the night. The next morning Ballard was found in his cubicle, in what the High Court would say was a “dying condition”. 10

He had been hit on the head some eight or nine times by a bottle, after which he was doused in kerosene was then set on fire.

A group of sawmill workers removed the burning clothes of Ballard. The group “then had to restrain a snarling O’Leary, who was threatening to finish him off with an axe”. 11

Ballard died from his injuries “at the Mount Gambier Hospital at about 2 PM the same day without regaining consciousness”. 12

The local police this is were called in to investigate. O’Leary had a bottle in his possession and a pullover that had belonged to Ballard. 13

O’Leary had also been accused of the unprovoked assault of several other employees, that “consisted of brutal blows at the head”. 14

The police found that “O’Leary had already served a prison sentence for manslaughter. The Police suspected he had robbed Ballard, and when Ballard died they charged him with murder”. 15 On Thursday, 25 July 1946, the coroner, Mr H C LeLievre, after conducting the inquest, found that deceased Ballard came to his death by murder at the hand of Charles Patrick O’Leary, Nangwarry, on July 7, 1946. 16 Mr V R Hague, of Adelaide, appeared for the Commissioner of Police, to assist the Coroner and Mr R L Badenoch, of Mount Gambier, appeared for O’Leary. 17

O’Leary, who was 34 years old at the time, was committed for trial.

The case against O’Leary was heard at the Mount Gambier Sittings of the Supreme Court, by the South Australian Chief Justice, Sir Thomas John Mellis Napier KCMG KStJ QC, 18

and a jury. 19 O’Leary was found guilty and “sentenced to death on October 9 for the murder at Nangwarry on July 7 of Walter Edward Ballard”. 20

O’Leary then appealed his sentence to the Full Court of the Supreme Court of South Australia, stating that specific evidence had not been admitted. The quorum of Mayo, Reed, Abbott JJ, turned down the appeal. 21 An application was then made to the High Court, then located in Sydney, seeking special leave to appeal against the conviction. O’Leary’s appeal was laid on three grounds:

(i.) that the trial judge wrongly admitted evidence of certain assaults, abuse and threats by O’Leary upon and to a number of men other than Ballard and misdirected the Jury that they could take into account and act upon that evidence for the purpose of determining whether the identity of O’Leary as the person who caused Ballard’s death was. proved; (ii.) that the trial judge wrongly admitted as evidence two photographs of Ballard taken after his death; and (iii.) that there was no evidence or sufficient evidence to prove O’Leary guilty of murder. 22

for a reprieve, to which O’Leary remarked: “I won’t get a reprieve because, during the war, I killed another man in a fight and served time for manslaughter. They would not be willing to give me another chance, because if I got out and got drunk, I might kill someone else.” 28 The Border Watch recorded that on the day before his execution, telegrams seeking support to reprieve O’Leary and commute the sentence of death to life imprisonment were sent by Mr S Rosenburg, the secretary of the Howard Reform League. Rosenburg implored the Governor-General, the then Duke of Gloucester and the Governor of South Australia, Sir Willoughby Norrie, to intervene and commute that sentence. 29 No reprieve was granted. At 7.50am on the morning of Thursday, 14 November 1946, the prison guards heard Charles Patrick Joseph O’Leary singing Mother Machree,… B

Latham C.J., Rich, Starke, Dixon, and Williams JJ (McTiernan J dissenting), held that the evidence was admissible, and held (with Starke and McTiernan JJ dissenting), that the evidence disclosed a connected series of events which should be considered as one transaction. 23 The court records stated that the trial judge had:

directed the jury that they could consider the challenged evidence as evidence of the disposition of the accused “as a man who had no care for the ordinary feelings of pity or humanity which restrain ordinary people”. 24

Latham C.J., Rich, Dixon, and Williams JJ, (McTiernan J. dissenting), held “that the misdirection was not such as to warrant special leave”. 25

Latham C J found that;“the direction was inconsistent with the well-established rule that evidence of bad character was not admissible against an accused person”. 26 27 No grounds for leave to appeal were granted against the conviction of O’Leary. The die had been cast and the fate of O’Leary soon to be meted out. The law was taking its course.

Porter noted that while O’Leary was being held in custody and awaiting the result of his appeal, a warder said to O’Leary that he should keep his hopes up

Endnotes 1 A 1910 American Irish song with lyrics by Rida Johnson Young and singer Chauncey Olcott, and music by Ernest Ball. <https://en.wikipedia. org/wiki/Mother_Machree_(song)>. 2 Charles Patrick Joseph O’Leary born in Liverpool UK, circa 1912 (date not known), died Thursday, 14 November 1946, at Adelaide Gaol. According to Porter; Went to sea at 14 years old and had served on the Queen Mary. In 1942, O’Leary missed his ship at Port Adelaide, and enlisted in the AIF. O’Leary would be the 60th person executed in South Australia. 3 The Barrier Miner, ‘Murderer Smiled on Gallows’, The Barrier Miner, (Broken Hill, Thursday, November 14, 1946), 1. < https:// trove.nla.gov.au/newspaper/article/48482891>. 4 Ibid. 5 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38. 6 James Morton et al, Dangerous To Know: An Australasian Crime Compendium (Melbourne University publishing, 2009), O’Leary, Charles Patrick. < https://books.google.com.au/ books?id=2GVhAqukVA0C&pg=PT430&lpg =PT430&dq=charles+o%27leary+ manslaughter&source=bl&ots=yv83e51m Ro&sig=ACfU3U1mlpYpmzJIVklK2 yrCvB8jT7nK1Q&hl=en&sa=X&ved=2ahUKE wjj8L_u2tTmAhXjmeYKHdG1A0QQ6AE wEXoECAoQAQ#v=onepage&q=charles%20 o’leary%20manslaughter&f=false>. 7 The Barrier Miner, ‘Murderer Smiled on Gallows’, The Barrier Miner, (Broken Hill, Thursday, November 14, 1946), 1. < https:// trove.nla.gov.au/newspaper/article/48482891>. 8 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38. 9 Find a grave website, Charles Patrick O’Leary <https://www.findagrave.com/ memorial/90949400/charles-patrick-o_leary>. The memorial ID is 9094 9400. A picture of the painted inscription on the wall, can be found at this website. 10 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [566]. 11 True Crime Library, Charles O’Leary, London UK, < https://www.truecrimelibrary.com/ crimearticle/charles-o%C2%92leary/>. 12 The Border Watch, ‘O’Leary hanged today - final efforts to commute death sentence fail’, The Border Watch you (Mount Gambier, Thursday, July 25, 1946), 1. < https://trove.nla.gov.au/ newspaper/page/7655470>. 13 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [566]. 14 Ibid. 15 True Crime Library, Charles O’Leary, London UK, < https://www.truecrimelibrary.com/ crimearticle/charles-o%C2%92leary/>. 16 The Border Watch, ‘O’Leary hanged today - final efforts to commute death sentence fail’, The Border Watch (Mount Gambier, Thursday, July 25, 1946), 1. < https://trove.nla.gov.au/newspaper/ page/7655470>. 17 Ibid. 18 According to Wikipedia Sir Thomas John Mellis Napier KCMG KStJ QC (born 24 October 1882 – died 22 March 1976 (93 years)), was the fifth Chief Justice of South Australia and the Lieutenant-Governor of South Australia from 30 April 1942 to 1973. In 1912 (together with Thomas Poole) he resuscitated the Law Society of South Australia, and served as its Vice President in 1923.< https://en.wikipedia.org/ wiki/Mellis_Napier>. 19 The Advertiser, ‘Appeal in Murder Case’, The Advertiser (Adelaide, Saturday, 26 October 1946), 9. < https://trove.nla.gov.au/newspaper/ article/35763337> 20 The Border Watch, ‘O’Leary hanged today - final efforts to commute death sentence fail’, The Border Watch (Mount Gambier, Thursday, November 14, 1946), 1. <https://trove.nla.gov. au/newspaper/article/79864761>. 21 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38. 22 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [567]. 23 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [566]. 24 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [567]. 25 Ibid. 26 Ibid. 27 Latham CJ cited Thompson v. The King, (1918) A.C. 221, and R. v. Sims, (1946) 62 T.L.R. 431. 28 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38. 29 The Border Watch, ‘O’Leary hanged today - final efforts to commute death sentence fail’, The Border Watch (Mount Gambier, Thursday, November 14, 1946), 1. <https://trove.nla.gov. au/newspaper/article/79864761>.