A.—2b

32

Enclosure 5 in No. 3. (E.) 1873-74.—New South Wales. MINUTE OF HIS EXCELLENCY SIR HERCULES ROBINSON, AND PROCEEDINGS OF THE EXECUTIVE COUNCIL WITH RESPECT TO THE RELEASE OF THE PRISONER GARDINER. Presented to both Souses of Parliament, by Command. Minute by the Governor for the Executive Council. I have to lay before the Executive Council six petitions and memorials which have been addressed to me with regard to the proposed mitigation of Gardiner's sentence. These representations, viewed in connection with the public discussions which have recently taken place on the same subject, have led me very carefully to consider whether any fresh facts have been brought to light which would justify me in disappointing now the expectations which I raised when this prisoner's case was first submitted to me —about eighteen months ago. It is true that no positive compact was then made with the prisoner, or any decision given in the nature of an absolute remission, which would of course have been irrevocable ; but it is beyond question that a hope was held out to him by my minute of the sth December, 1872, that if he continued to conduct himself well he would in all probability be allowed a pardon, conditional on his leaving the country so soon as he had served ten years of his sentence. I think that this may fairly be held to have been tantamount to a promise, contingent alone on the prisoner's good conduct in gaol; and that it was so viewed by myself at the time, and by the Hon. the Colonial Secretary subsequently, is apparent from my Minute of the 7th December, 1872, in which I stated, " I have already decided to grant a conditional pardon at the termination of ten years' imprisonment," and from the Colonial Secretary's minute of 24th April last, in which, when submitting to me a petition for Gardiner's unconditional release, he observes, " The prisoner has been authorized a conditional pardon, the condition being exile." The Sheriff too obviously viewed the matter in precisely the same light, and referred, in his letter of the 21st January, 1873, and in his minute of the 20th April, 1874, to Gardiner's case as one that had been practically decided and disposed of. I may mention that it has been the practice here for many years for the Governor, when dealing with applications for mitigation which have appeared premature, to fix a date at which the case might again be brought under his consideration. Hopes so held out have always been regarded by the prison authorities, and by the prisoners themselves, as equivalent to promises of pardon, conditional on good conduct, and in every such case the expectation so raised has been, I believe, scrupulously fulfilled. I remember one case which Sir Alfred Stephen, as Administrator of the Government, intimated to one of the most prominent and daring of the bushrangers that his case might again be brought forward for consideration as soon as he had served seven out of the nineteen years to which he had been sentenced. The papers came before me at the time specified, and, as the case appeared to me a bad one, I declined to sanction any greater remission than that contemplated under the general regulations for bush-rang-ing cases, unless Sir Alfred Stephen's intimation was held to be a promise. I was informed by the Sheriff that this was unquestionably the view in which the decision had been looked on in the gaol, and I accordingly authorized the prisoner's discharge on conditional pardon, four years before the date at which he would have been eligible for exile under the special mitigation regulations laid down for such cases. Of course I am aware that, under certain circumstances, it might be proper and wise to withhold the fulfilment of such promises, whether positive or implied. For example, a promise given under false representations would not be binding, and a promise to release a prisoner which it was subsequently found would, if carried out, imperil the public safety, should be cancelled. The practical question for consideration in the present case is, therefore, simply this: Are there any such grounds which would justify me in now withholding the conditional pardon which nearly two years ago I led Gardiner and his friends to expect that he might receive about this time ? I have seen it urged that Gardiner's case was decided upon false representations, it being alleged that some of the signatures attached to the petition were forgeries, and that there was a previous conviction against Gardiner in Victoria, which had been concealed. But I think these grounds, even if they were facts, which they have not been proved to be, would be quite insufficient to release me from my implied promise. In a petition so numerously and influentially signed a few signatures more or less of persons of whom I had no knowledge would have been immaterial, and I cannot say that my decision would have been different if it had been stated on the papers that, before Gardiner commenced his criminal career in New South Wales, he had been convicted in Victoria of horse-steal-ing in 1850—nearly a quarter of a century ago. In view of the grave character of his crimes in New South Wales such a comparatively minor offence would have appeared insignificant. I must, therefore, as I have said, dismiss these pleas as insufficient. The question remains—would the public safety be in any way jeopardized if the expectation held out to Gardiner, of being allowed to exile after ten years, were now fulfilled ? I think not. Sir Alfred Stephen observes, in his letter on Gardiner's case, that " the end and object of all punishment are, first, the preventing of the individual, and, secondly, the deterring of other individuals, from the committing of similar crimes." Have these ends been attained in the present case? I think they have. The sentence of thirty-two years, passed upon Gardiner, was imposed at a time of great excitement, and his punishment would seem to have been measured more in view of the crimes with which he was supposed to have been connected than with reference solely to those of which he was actually convicted. It was probably never intended that such a sentence should be served in full; and, looking dispassionately at all the circumstances of the case, I consider that ten years of rigorous penal discipline within the walls of