Tait’s Case (1962) ignited passionate debate about capital punishment and involved a bitter collision between the executive and the judiciary. Robert Peter Tait was convicted of a brutal murder and sentenced to death. His defence of insanity was rejected by the jury. There was widespread opposition to the hanging—opposition directed at capital punishment generally, and the hanging of Tait in particular. Even the victim’s son, a Christian minister, publicly vowed to ‘do everything [he could] to prevent … Tait from being hanged’. Victorian Premier Henry Bolte, however, was determined to have Tait executed.

Following the end of a long and unsuccessful appeal process, during which Tait’s execution was postponed twice, the Victorian government scheduled Tait’s hanging for Monday, 22 October 1962.

Two matters were brought before the Full Court of the Supreme Court of Victoria in an attempt to save Tait’s life. They were based on the common law rule that it was unlawful to hang an insane person. The issue was no longer whether Tait had been insane at the time of the murder, but whether he was insane now. In the first matter, the Associate Director of the Brotherhood of St Laurence, David Scott, had applied for an order under the Mental Hygiene Act 1958 (Vic) seeking an inquiry into Tait’s sanity. Justice Gregory Gowans rejected that application on 15 October, a week before the planned hanging. Scott appealed to the Full Supreme Court, which began to hear the appeal two days later.

The second matter arose from an application by Tait’s counsel to Justice Arthur Dean (the presiding judge at Tait’s trial) for a respite of execution on the grounds of insanity. Dean referred that application to the Full Court, which was hearing the Scott appeal. The Court heard the two matters together.

Pressure on the government had mounted to stay Tait’s execution so that the Court would have time to consider the case properly. The state Opposition leader, Clive Stoneham, accused the government of holding the Court ‘up to ridicule by … disregard[ing] entirely the legal processes that are being worked out there’. Tait’s counsel pleaded for ‘something to be done’ to allow the Court more time to reach a reasoned decision. One judge referred to the ‘acute embarrassment’ to which he was being subjected. Reluctantly, the government postponed Tait’s execution to ‘a date to be fixed’.

On 30 October, the Court dismissed the first appeal (Re Tait (1962)) and referred the second matter back to Justice Dean (Tait v R (1962)). Later that day, before Dean had a chance to hear the case, and despite its knowledge that an appeal to the High Court was imminent, the government announced that Tait would be executed at 8.00 am on 1 November. The Mental Health Act 1959 (Vic) was to come into force on that day (having apparently been proclaimed by accident).

Because that Act would allow government psychiatrists to certify that Tait was mentally ill, it was believed that his execution would be impossible once the Act was in force.

The decision to execute Tait although judicial processes were still pending provoked outrage. There were heated exchanges in Parliament; newspapers around the country ran front-page stories attacking the decision; community and religious groups were appalled. ‘No longer [did] it seem a matter of capital punishment, but of getting rid of Tait in spite of any possible legal processes still open.’

Dean brought the case forward to the evening of 30 October. He sat late into the night. He referred to the ‘very embarrassing and unfortunate’ situation in which he found himself, having to decide the case so close to Tait’s planned execution. At about 10.30 pm, he ruled that he had no power to intervene, on the ground that the common law power of judges to grant a reprieve had been superseded by the Crimes Act 1958 (Vic). Tait’s grave had been prepared at Pentridge Prison at least an hour before.

With less than 24 hours remaining before Tait was due to hang, and with the Court not in session, three High Court Justices flew down from Sydney to join two others in Melbourne. The convening of the Court was so rapid that Dixon had time only to thumb through the Full Court judgments while he was being driven to town.

John Starke (son of High Court Justice Starke), acting for Scott, argued for a stay of Tait’s execution so that the High Court could fully consider the arguments made before it. He protested that ‘we have been bundled through this court to keep an appointment with the hangman at 8 o’clock tomorrow morning’. The state government treated the High Court as it had the lower courts before: it attempted to pressure the Court into deciding the case quickly, allowing it no time to consider properly the complex issues involved.

Chief Justice Dixon was angered. When the prosecution suggested that the executive would not resile from its decision to execute Tait as planned, he responded: ‘When you say it to this Court, you are saying it to a court which has supreme jurisdiction in Australia, and in effect saying “Well, even if you want time to consider the case we will not give it”’. He announced that the case would be adjourned and Tait’s execution postponed ‘entirely so that the authority of this Court may be maintained’.

Victorian Solicitor-General Henry Winneke, who had been embarrassed by the government’s instructions to him, was unable to give an undertaking that the execution would be postponed. Dixon, after Winneke had drawn the Court’s attention to the possibility, then ordered that the Chief Secretary, the Sheriff, and his deputies ‘be restrained accordingly’. Newspapers reported that for the first time in Australian history, the Court had issued an injunction against a state government.

The adjournment and stay of execution effectively forced the government to commute Tait’s sentence. Tait was sentenced to life imprisonment with the endorsement ‘never to be released’. He died in prison in 1985.

Ironically, in 1967 John Starke, by then himself a judge, presided over the trial of Ronald Ryan, the last person hanged in Australia. In 1991, Starke told Jon Faine in a radio interview that he used to see Tait from time to time when he came before the Victorian Parole Board: ‘One time he came in before the Board, and I said, “How are you going, Peter?”. And he said, “…Don’t worry Mr Starke, I’ve never really blamed you for this”. Blame me? For God’s sake, I saved his bloody life.’ Despite occupying the High Court for less than three hours, Tait’s Case stands as one of the clearest demonstrations of the authority and independence of the Court.

Troy Simpson

FURTHER READING

Creighton Burns, The Tait Case (1962)

Jon Faine, Taken on Oath: A Generation of Lawyers (1992) ch 4

JD Feltham, ‘The Common Law and the Execution of Insane Criminals’ (1964) 4 MULR 434

Colin Howard, ‘An Australian Letter: The Principle of Fair Trial’ [1963] Crim LR 603

Peter Ryan, Lines of Fire (1997)