Capital Punishment

“Intentional homicide for blood feud shall be punishable by imprisonment of not less than 30 years or life imprisonment”.

T hese are the words of article 78/a of the Criminal Code of The Republic of Albania of 1995. In that country, despite the attempts of the previous Communist and successive regimes to eradicate it, the blood feud continues to thrive.

Indeed, there are those of Albania, probably quite a large number, who see more legitimacy in the ancient Karun1 which sets out the elaborate rules for revenge killings, than any modern law for the punishment of murder.

Punishment and law enforcement by the people are generally discouraged in western and many other societies. These are roles for the state. And this state, as with all of the other states of Australia, have long taken the view that the death penalty is a form of punishment that is antipathetic to the mores of our society.

It is not the fact however that no Queensland judge, in relatively recent times, has not imposed a death penalty that was carried into effect. Sir Gerard Brennan, retired Chief Justice of the High Court, told me that when he was serving as an Associate to Mr Justice Townley of the Supreme Court of Queensland, and that Judge was acting as a War Crimes Tribunal on Manus Island shortly after the Second World War, Townley imposed the death penalty on a senior Japanese officer. The officer was hanged whilst he and the judge were still on the Island. Indeed, it is my understanding that war crimes trials — originally proposed to be held in Darwin — were transferred to offshore locations because of a general, but not unanimous, Australian aversion to the death penalty, even after the atrocities inflicted on Australian prisoners of war became common knowledge.

This paper is a revised version of one that I presented some years ago in which I then affirmed my opposition to the death penalty. As will appear, my opposition to it remains — but I do have to admit that there have been times when my view was shaken. But before I come to that, I should say something about the history of capital punishment in this country.

In the past, almost every tribe or nation routinely imposed and carried out the death penalty, and not infrequently for trivial offences. Throughout the world numerous countries have expunged capital punishment from their statute books. But the fact that many countries of different cultures, and living under different forms of government retain it, might suggest that a case for its retention in some circumstances can reasonably be argued.

Australia is a federation. Even though the central government has validly enacted a Crimes Act and a Sentencing Act, as crime is essentially local, and a matter for correction and punishment by state governments, it has been largely (but not exclusively as will appear) for them to mandate or abolish the death penalty. All of them have in fact done so and there have been no serious attempts to reintroduce it. The last State so to act was New South Wales, in 1985, although the last person to be actually executed, and then in controversial circumstances, was Ronald Ryan in Victoria in 1967. Although it is not currently an item, so far as I am aware on any state or national political agenda, there is recurrent public debate about it. The subject continues to occupy space in newspaper columns, letters to the editor and editorials2, as well as pervading the air waves on talk-back radio. Events such as the Port Arthur shootings in which 35 innocent men, women and children were murdered, and the Bali bombing inevitably provoke national debate about the return of the death penalty.

The literature on the topic is vast. The arguments for and against it have been recorded in many places. I will, however, touch first upon the arguments against capital punishment that I think most compelling. The criminal justice system is fallible and capital punishment as a result of it is irreversible. That is not to say that I think other arguments against it not persuasive.

Capital punishment in Australia

Something should be said about the more recent, in legal terms, history of capital punishment. In England in 1765, there were more than 160 offences for which capital punishment was the penalty3. As the British criminal justice system was reproduced in the Australian colonies, capital punishment was accepted as an appropriate punishment for some offences. About 80 persons were hanged in the colonies of Australia per year in the 19th Century, for crimes ranging from burglary, sheep stealing, forgery, sexual assaults, murder and manslaughter to, even, in one case, “being illegally at large”4. One estimate is that 1648 persons have been legally executed in Australia5.

In 1922, this state, Queensland was the first in Australia to abolish the death penalty by legislation6. The last person to be executed in Queensland was Ernest Austin. He was hanged at Brisbane Gaol nine years earlier for the rape and murder of a 12 years old girl7. The only woman hanged in this State was Ellen Thompson. She was executed with her lover, John Harrison, at Brisbane Gaol on 13 June 1887 for the murder of her husband at Port Douglas. A Brisbane newspaper described her as a “pitifully wicked woman” and gave an account of the hanging. The journalist wrote that “in every man’s mind was the notion that whether the death penalty be right or not, hanging is a barbarous and a brutal thing”8. After the executions, so-called phrenological examinations were performed which were claimed to reveal, “in the woman, combativeness and destructiveness … both large, the domestic affections … fairly full, the moral propensities small, and the sexual love amativeness, exceedingly large”. A similar examination was performed on Harrison. The newspaper commented, that “Judging from this, it would seem that the woman was the moving spirit in the plot, and that her passion for Harrison inspired her. She was active, cunning and masterful … Harrison, on the contrary, cared for nothing but himself, and wanted Old Thompson’s [the victim’s] money far more than he did old Thompson’s wife.”9

Tasmania was the next to abolish the penalty, but not for another 46 years10. The Commonwealth followed in 197311, the Northern Territory12 in the same year. Victoria in 1975,13 South Australia a year later14, the Australian Capital Territory in 1983,15 Western Australia in 198416 and last, New South Wales in 1985.17

Despite its legal availability, execution was rarely carried out. Even though it was the last abolitionist state, no one in New South Wales was executed after 1939. Ryan’s case, as the last in which the penalty was carried out, and also because it was the first for many years, has continued to excite interest and debate.

On 19 December 1965, Ronald Ryan and another prisoner escaped from Pentridge Prison with almost unbelievable ease18. There was no proximate warder on duty at the time. Ryan took a rifle from a guard-post, and during the escape shot a prison guard. The escapees remained at large in Melbourne for some days, and insensitively as well as sensationally robbed a suburban bank on the day of the prison guard’s funeral. There was widespread fear in Melbourne around Christmas 1965, especially after a truck driver, who had been an associate of the escapees, was found shot dead, in a St Kilda public lavatory. Ryan and his companion were eventually recaptured in Sydney some days later. The pair were jointly tried for murder by Justice Starke and a jury in the Supreme Court of Victoria. Ryan’s defence counsel, Mr Philip Opas QC, pointed to a number of inconsistencies in the prosecution case. The prison guard was a much taller man than Ryan, and was standing only a few yards away from him when he was shot. The defence argued that the downward trajectory of the bullet suggested that the prison guard had been shot from a height, or a considerable distance. Most witnesses heard only one shot. One warder, who had tried to prevent Ryan and Walker from escaping, admitted having fired a shot in the general direction of Ryan and a prison guard, although he said that he lifted his rifle towards the sky at the last moment. A Melbourne newspaper reported a penal official as saying a shot had been fired from the observation tower of the gaol. The fatal bullet and its cartridge case were never recovered.

The jury convicted Ryan of murder and sentenced him to death. The other escapee was convicted of manslaughter. Ryan appealed unsuccessfully to the Full Court and the High Court. State Cabinet confirmed Ryan’s death sentence on 12 December 1966. An appeal to the Privy Council on 23 January 1967 was unsuccessful and Ryan was hanged at 8am on Friday 3 February 1967. Opas QC represented Ryan at his trial. Opas’s daughter, herself a lawyer, told me that the conviction and execution had a profound effect upon him from which he never recovered.

The High Court and Capital Punishment

Since its establishment in 1903, the High Court has heard several appeals by persons convicted of murder and sentenced to death. In contrast with the multiplicity of cases concerning the death penalty decided by the United States Supreme Court over the last thirty years, and in respect of which I will say more later, none of the appeals to the High Court sought to challenge the constitutional validity of the death penalty. This can be explained by the absence of a Bill of Rights in Australia, and perhaps by the fact that those cases were heard and decided before a relatively recent trend by counsel in front of the Court to seek to invoke civil and political rights derived from international instruments and decisions from other jurisdictions.

Justice Kirby referred to a number of the relevant High Court cases in an article published in the Australian Law Journal in 200319. I propose to touch upon three of them only. In Tuckiar v The King20, Mr Tuckiar who was described by their Honours in the majority21 as a “completely uncivilised Aboriginal native”22, was charged with the killing of a police constable at Woodah Island in the Northern Territory. The conduct of the defence was appallingly deficient. Counsel appointed to represent the accused was inexperienced. He failed to object to irrelevant and prejudicial evidence about the good character of the deceased constable. After hearing evidence from the principal Crown witness, the trial judge suggested to Mr Tuckiar’s counsel that he check with his client to ascertain whether the witness’ evidence was correct. Subsequently, counsel said that he wished to discuss with the judge an important matter which put him in the worst predicament of his legal career. Afterwards, the trial judge, who had to the knowledge of the jury, heard counsel’s communication, invited the jury to draw “any inference they liked” from Mr Tuckiar’s failure to give evidence. Before sentence was pronounced, Mr Tuckiar’s counsel announced in open court that he had been told by Mr Tuckiar that he had lied to one of the witnesses who gave evidence against him. The unfortunate defendant was sentenced to death. The High Court overturned the conviction and sentence holding that the remarks of Mr Tuckiar’s counsel would have so prejudiced the chance of a fair trial that a new trial should not be ordered.

The King v Lee & Ors23 is particularly notable for two reasons. First, Jean Lee was the last woman to be executed in Australia. Secondly, her application for special leave to appeal to the Privy Council was refused on 27 February 1951, eight days after she was hanged at Pentridge Prison on 19 February 1951. She had been convicted of the murder, together with 2 men, of William Kent in a Melbourne hotel room. Kent had been strangled. Although Lee had not directly carried out any act of violence on Kent, she was convicted on the application of the doctrine of common purpose. An appeal brought by her and the 2 accomplices was allowed by the Victorian Court of Criminal Appeal. It was held there that statements made to the police had been improperly obtained from one of the defendants, and had equally improperly been used, to extract confessions from the other two. The High Court, in a unanimous judgment, overturned the decision of the Court below and reinstated the convictions and death sentences.

The third case is of particular interest because of the dramatic confrontation that occurred between the High Court and the premier of Victoria, Sir Henry Bolte24. In Tait v The Queen25, the appellant was convicted of murder. His sole defence was of insanity. Sir Henry Bolte, some thought for political reasons, welcomed a hanging to demonstrate an inflexible and popularist commitment to law and order. Tait appealed to the High Court from the decision of the Full Court of the Supreme Court of Victoria which had rejected the appeal to it. Sir Owen Dixon, as Chief Justice, ordered a stay of the execution pending disposal of an application for special leave, and any consequential appeal if leave were granted. The Chief Justice instructed the Marshall of the Court to serve the Premier, by directing him to put the written order directly into the hands of the Victorian Deputy Premier. Apparently Sir Henry Bolte asked in Cabinet what the legal position would be if the execution were to proceed. The Premier and his Cabinet were persuaded by the stark advice that the essence of the crime of murder was the deliberate and unlawful killing of one person by another. An execution in defiance of a judicial order would clearly answer that description. The death penalty imposed upon the prisoner was subsequently commuted, in part at least because of the political controversy it had provoked.

The International Context

Most executions worldwide are carried out in a relatively small number of countries. According to Amnesty International26, in 2003 84 per cent of known executions took place in China, Iran, Vietnam and the United States. In the same year, no fewer than 726 people were recorded as having been executed in China. Some believe the true number then and now to be much higher. It should be remembered however that China has the largest population in the world. Executions are regularly carried out in Iran. A minimum of 64 people were executed in Vietnam in 2003 and 65 people in the USA.

It is impossible therefore to say that an international custom or usage has evolved prohibiting the judicial execution, or requiring its abolition. The most important and comprehensive human rights treaty in respect of civil and political rights, the International Covenant on Civil and Political Rights (the ICCPR), in article 6 which is concerned with the right to life, contemplates the use of the death penalty, but would place restrictions upon it: that it only be carried out “for the most serious [of] crimes”27, and if it has been prescribed by a national law at the time of the commission of the offence28. Further, it may only be imposed pursuant to a final judgment of a competent court29 and that a right to amnesty, pardon or commutation must exist30. It may not be imposed on offenders under the age of 18 and on a pregnant women31.

There have been many efforts in recent years to restrict further, and if possible, to procure the abolition of the penalty. Probably, the most important of these is the Second Optional Protocol to the ICCPR32 which has as its object abolition. That Protocol prohibits the penalty within those states that have ratified it, subject to one allowable derogation or reservation only. This is that at the time of agreement to the Protocol, the state make a reservation to allow the death penalty in times of war for the most “serious crime of a military nature”33. In 1990, Australia ratified the Second Optional Protocol without reservation.

The objective of reaching full international agreement on the abolition of capital punishment appears to be a distant aspiration. It is a politically divisive issue involving wider questions of religious and cultural values. Attempts by Western democratic nations which have abolished the death penalty, to persuade other countries to abolish it have in some instances been regarded as an insulting form of cultural imperialism.

The United States

The United States of America is, I believe, the only Western democratic country that retains and carries into effect, the death penalty.

By the 1960s however most of the United States had ceased to carry out executions. In 1972, in Furman v Georgia34, the US Supreme Court ruled that that all death penalty statutes then in force were unconstitutional. It seemed to many then that capital punishment had finally been abolished in the US. The Court held that the death penalty was being applied in an arbitrary, capricious and discriminatory manner contrary to the Eighth Amendment of the United States’ Constitution35. Georgia, Florida and Texas redrafted their death penalty statutes which were to become the subject of challenge in Gregg v Georgia36 in 1976. There, the US Supreme Court found that the death penalty was not unconstitutional provided that its enabling legislation ensured that a defendant not be sentenced capriciously or arbitrarily. The Court upheld the validity of the redrafted statutes which established a “guided discretion” for imposing a death sentence. In 1988, a new federal death penalty statute was enacted for murders committed in the course of drug trafficking activities. In 1994, the reach of the federal death penalty was extended to include some 60 different offences such as murder of certain government officials; kidnapping resulting in death; murder for hire; fatal drive-by shootings; sexual abuse crimes resulting in death; car-jacking resulting in death; as well as other crimes not resulting in death, and the maintaining of large-scale drug enterprises. Between 1927 and 1963, the federal government executed 34 people, including two women. On June 11, 2001, Timothy McVeigh became the first federal death row prisoner to be executed in the United States since 1963.

The United States Supreme Court ruled in 2005 by a 5-4 majority that it is unconstitutional to execute juvenile murderers because to do so amounts, contrary to the Eighth Amendment, to cruel and unusual punishment. The decision, Roper v Simmons37, reversed a 1989 Supreme Court ruling that allowed the execution of 16 and 17 year olds convicted of murder. Justice Kennedy, who wrote the majority decision, said then that the US was the only country in the world that officially sanctioned the death penalty for juvenile offenders38. A “national consensus” had since developed against executing young offenders39. Justice Kennedy also cited scientific and sociological studies demonstrating that juveniles were less responsible than adults for their actions. His Honour said40:

“The age of 18 is the point where society draws the line for many reasons between childhood and adulthood. It is we conclude the age at which the line for death eligibility ought to rest”.

According to Amnesty International, by 2005 there had been some 944 executions in the United States since 1976, with 59 occurring in 2004 41.

I say a little more about the United States jurisprudence on the topic later.

Privy Council

Although the death penalty for murder was abolished in the United Kingdom in 196542, the Privy Council has, in recent years, heard many appeals from prisoners on death row in the Caribbean states. The jurisprudence of the Privy Council has placed those countries in an invidious position legally: if they proceed to execute a prisoner before he or she has exhausted all possible avenues of appeal, they may violate due process rights; if they delay the death penalty for too long, execution may constitute inhumane treatment43. In 2004, the Privy Council upheld the constitutional validity of the mandatory death penalty in Barbados44 and Trinidad and Tobago45.

Wrongful Convictions

One of the most compelling reasons for abolishing the death penalty is as I have said, the fallibility of the criminal justice system. Lawyers and judges alike are all too aware that miscarriages of justice can, and do, occur. The possibility of executing an innocent person, as a reason in support of abolition, has increased in prominence over the last 15 years as a result of the advent of DNA technology in criminal investigations. With a high degree of precision, DNA evidence can be used to identify perpetrators of many (but not all) crimes and thereby secure convictions, or to exclude suspects who might otherwise be falsely charged with and convicted of serious crimes.

A consequence of the introduction of DNA profiling has been the reopening of old cases. Persons convicted of murder and rape before DNA profiling have sought to have the evidence in their cases re-evaluated using this new technology. Various studies and reports commissioned in the United States identify a number of cases in which DNA test results have exonerated those convicted of the offences and have resulted in their release from prison. One such report was published by the National Institute of Justice in June 199646. The National Institute of Justice is the research and development agency of the Department of Justice. It identified 28 cases in which DNA testing had led to the exculpation of persons convicted of murder or rape and serving a sentence of imprisonment. Of those 28 persons exculpated, six had been convicted of murder.

The Death Penalty Information Centre47 reported that more than 100 people had been released from death rows in the United States since 1973 after evidence of their wrongful convictions emerged. Not all of the cases reported have relied upon DNA evidence to exculpate the person convicted. Wrongful convictions can be caused by a number of factors including mistaken eyewitness identification, coerced confessions, unreliable forensic laboratory work, law enforcement misconduct, and inadequate legal representation. The following two cases however, are examples in which DNA evidence has been used to exonerate a person on death row.

In 1984, Earl Washington, who suffers from mild retardation, was convicted of the rape and murder of a woman in Virginia. After he was arrested on another charge in 1983, police persuaded him to make a statement admitting the rape and murder for which he was later convicted. He later recanted. Subsequent DNA tests confirmed that Washington did not commit the rape. In 1994, Washington’s sentence was commuted to life imprisonment with the possibility of parole. In 2000, additional DNA tests were ordered and the results again excluded Washington as the rapist. In October 2000, the Governor of Virginia granted Washington an absolute pardon48.

On 8 April 2002, Ray Krone was released from prison in Arizona after DNA testing showed that he did not commit the murder for which he was convicted 10 years earlier. Krone was first convicted in 1992 on the basis of circumstantial evidence and testimony that bite marks on the victim matched Krone’s teeth. He was sentenced to death. Three years later he was granted a new trial but was again found guilty and sentenced to life in prison. Krone’s post-conviction defence attorney obtained a court order for DNA tests. The results not only excluded Krone as the culprit, but also pointed to another identified man as the assailant. At a press conference in 2002, the Maricopa County Attorney stated “[Krone] deserves an apology from us, that’s for sure. A mistake was made here. What do you say to him? An injustice was done and we will try to do better. And we’re sorry”49.

It is argued by some that the widespread use of DNA technology in criminal prosecutions has all but eliminated the risk of sending an innocent person to death row. The argument wrongly assumes that DNA evidence is always available in respect of a murder. The fact is that DNA evidence is only of assistance to identify the perpetrators where an exchange of bodily materials has occurred. According to the Death Penalty Information Centre, DNA exonerations represent only a small percentage of the 100 or so persons freed from death row in the United States since 1973. In 80 or so per cent of the cases, other evidence was relied upon to exonerate the person, such as a confession by the actual killer, or evidence of witnesses who subsequently admitted that they were pressured into lying at trial, or the refinement of other kinds of forensic testing such as fingerprinting. Wrongful convictions are an unfortunate and unavoidable aspect of the criminal justice system. Advances in DNA technology and crime detection will never overcome the possible risks of contamination and human error that often are the cause of wrongful convictions. Appellate acquittals and reversals due to DNA testing only serve to underscore the risk of mistake generally. Closer to home, the Lindy Chamberlain case illustrates that the courts and the criminal justice system are far from infallible. Mrs Chamberlain’s appeal to the High Court was dismissed in 1984 by Gibbs CJ, Mason, Brennan and Deane JJ (Murphy J dis.). After the discovery of new evidence, an inquiry was established by the Northern Territory government. It quashed her conviction in 1988 on the basis principally of the serious flaws in the forensic testing and evidence of the expert witnesses. When I was on the High Court we had to decide the case of Mallard50, who had by then served 12 years or so for murder. On the most charitable view of the police investigation there, it appeared grossly negligent, perhaps worse.

Judicial error also occurs. Sir Owen Dixon identified an error of principle for example in the Privy Council’s decision in Director of Public Prosecutions v Smith51. After it was delivered, Sir Owen wrote to Felix Frankfurter52:

“At the time I read it I did not verify any of the references but I have since learned that there is a striking error in the citation of The Queen v Faulkner (1877) 13 Cox CC 550. The quotation from Palles CB is of course correct but it is only a dictum and the actual decision was to the contrary of what Lord Kilmuir stated. Indeed it is a reasonably good authority in favour of the prisoner. The responsibility of any court in a capital case is unenviable and one does not like to criticise the judgment but if a man is to be sent to the gallows it is a little unsatisfactory to feel that a factor contributing in however small a degree to his hanging was an erroneous citation.”

The High Court, led by Sir Owen Dixon, subsequently declined to follow the authority of Smith’s case in the celebrated case of Parker v The Queen53.

It is interesting to look at how other countries and various religions view capital punishment. I return to the United States. With all due respect, the jurisprudence of the Supreme Court of that Nation is something of a legal maze on the topic. As has appeared, many of the states of the United States continue to carry out judicial executions. In Baze v Rees54 in 2007, the Supreme Court dismissed a challenge to the death penalty, affirmed by the Kentucky Supreme Court, in which murderers argued it to be unconstitutional on the ground that death by lethal injection contravened the Eighth Amendment55. One basis for the holding was that the prisoner usually fell unconscious within 60 seconds after the injection. For execution to be a cruel and unusual punishment, there needed to be, whatever this means, a “substantial” or “objectively intolerable risk of serious harm”. On the other hand, in the most recent case that I have been able to find56, the United States Supreme Court held that the Eighth Amendment did prohibit the execution in Florida of an intellectually impaired person, because, among other things, the integrity of the trial process might be contaminated by a special risk of wrongful execution based upon forced confessions or a reduced ability to be a competent witness. A recent approach of the Supreme Court to the question generally of the lawfulness of capital punishment, has been to examine the numbers of the States which authorise it and carry it out, as if the mere fact that [political] endorsement by a substantial number of states might confer a general constitutional legality on it57. To say the least, that seems a curious basis upon which to construe a Constitution: in effect to say, if enough of the constituent states legislate for it, those political acts of legislation will be determinative of its constitutional validity.

Religious texts tend to be ambiguous on the topic, some finding support for capital punishment, and others, reading the written materials differently. As diverse a nation as the United States is, it is undoubtedly true that there are many of its peoples who are profoundly religious Christians. For justification, they tend to go to the Old Testament, because the New Testament seems fairly clearly to argue against it. According to Matthew (5:38-39), Jesus’s Sermon on the Mount imploring people to “turn the other cheek” requires Christian States not to exact the extreme punishment, as does, even the Old Testament in at least one instance (Genesis 9:6), if somewhat opaquely, in which it is written:

“Whoever sheds human blood, by humans shall their blood be shed, for the image of God has God made of mankind”

In general, Buddhism seems to have been more influential in societies in which it is the dominant religion, in the rejection of the death penalty. Its teachings are of a pacifist intent, and commend a deep respect for life in all of its forms, even the life of a murderer. So influential was Buddhism in Japan in the middle ages, that for 300 years, until the middle of the 13th Century, although execution was lawful, it was practically never carried out.

Many Islamic countries on the other hand, unhesitatingly authorise and carry out the death penalty. The Koran is not an easy book to read or understand, but I do not think it is wrong to say that it permits, perhaps even commands, its imposition in cases as diverse as adultery, robbery and apostasy.

This is not the occasion, and I certainly do not have the knowledge or expertise to undertake any further excursus into the questions of theology and its ambiguities as to punishments and their various forms.

I said at the beginning that, although my opposition to the death penalty remains firm, it has, on occasions, been shaken. Why is this so?

There are several reasons which caused me to reflect upon the matter. The arguments of strict utilitarians who support the death penalty in some cases need careful consideration, and cannot too lightly be dismissed. Take the case of a serial murderer. Assume that he — it is almost always a man — has been utterly convincingly convicted by overwhelming proof beyond reasonable doubt, or on his entirely voluntary and credible admission. Assume further that history and experience tell that there is no prospect, of any kind, of rehabilitation, or of his serving any useful human purpose in the future. Add to these the fact that his continuing incarceration will cost the community, in present day money, between $120,000 and $140,000 a year. You should not think that any of these statements are fanciful. That cost, very conservatively estimated I have reason to believe, was provided to me by the Victorian Corrective Services Department when I undertook a review of the parole system in that state last year. During the course of that review, other depressing revelations were made. No fewer than 12 murders were committed within the preceding eight or so years by men while on parole at the time of the second or further murder. Those second or further murders were all premeditated, and some carried out as cruelly as could be imagined. It was also disturbing to discover that, although parole does facilitate the transition of some convicts from prison to an orderly and law-abiding life, there are statistics, particularly in the United States, which suggest that the benefits of parole tend to be overstated.

What responses are to be made to these arguments?

I reiterate, the criminal justice system is fallible. Law enforcement officers can be negligent or biased. Lawyers can be incompetent. Mistakes otherwise occur. Any system that retains the death penalty will inevitably, even if only infrequently, cause an innocent person to die. It is not within human capacity to avoid the possibility of error. Deterrence is a desirable aim of any criminal justice system and is cited, as justification for the death penalty. Although much ink has been spilled on discrediting the deterrence theory (often persuasively), ultimately, as a theory, it is impossible either to prove or disprove. While logic and intuition tell us that the possible consequence of death should act as a deterrent upon the rational mind, we just cannot be certain of the effect, if any, that it has upon a murderous or irrational mind, or indeed on an impulsive ill-disciplined one. Many criminals commit crimes in the belief that they will not be caught. We cannot know whether the possibility of being executed crosses the mind of the murderer as he or she is about to plunge the knife into the victim, or whether adversion to the penalty might persuade the perpetrator to desist. There does in fact seem to be little empirical data to suggest that the death penalty is a greater deterrent than imprisonment for life without parole. So long as the deterrence theory remains unable to be proved (or disproved) by empirical or scientific analysis, it is possible that it may, if only infrequently, divert murderous intent.

The fallibility of the criminal justice system, the inability to prove the deterrence theory, and my personal revulsion of state sponsored execution of human beings do lead me to continue to support the abolition of capital punishment. In jurisdictions where abolition has occurred, it is important to remember however that abolition cannot be taken for granted. One commentator suggests that the death penalty is never truly abolished but rather is in a state of statutory abeyance58. The fact that capital punishment has been abolished in a particular jurisdiction does not mean that it will never be reintroduced. New Zealand provides an example. Having abolished the death penalty in 1941, it restored it in 1950, before abolishing it again in 1962. The death penalty was abolished in the United Kingdom in 1969, but from 1981 to 1994 there were 13 unsuccessful attempts in the British Parliament to reintroduce it.

Lawyers, especially judges, are expected to bring to their work, and even perhaps, to their legal philosophies, a clinical detachment to enable them to approach and judge issues fairly and strictly in accordance with the facts and the law. We too lightly assume that our culture, our religious inclinations, our view of our society and civilisation itself, our intuition and our abhorrence of the wilful infliction of harm or death, have no proper place in our law. That is an assumption that is wrong. For my own part, all of these factors do provide a further, even a sufficient answer to the advocates of capital punishment. Speaking personally, I could not have served as a judge if I were under a legal obligation to impose or affirm a death penalty, even in the case of the worst and cruellest of murderers. Judicial reluctance in this regard has been ascribed as a reason for the law which has often existed which made the imposition of the penalty mandatory in the case of wilful murder. Whether the execution should actually be carried out was, as appears, for example from the Ryan case, a matter ultimately for the Executive. In the United States, and in some other places, the imposition of the policy itself is a matter for the collective decision of a jury rather than a judge alone, perhaps for the reason that the burden of imposing it is too much for one person to bear alone. Even so, an executive discretion will always remain. It will be recalled that one criticism of George W Bush, when he was running for the Presidency of the United States was that he had declined to grant clemency to several convicted murderers in Texas when he was the Governor of that state. My instinctive reaction to, and abiding view of the death penalty is that it diminishes the society which imposes it.

Let me conclude by saying that, despite the arguments therefore, and despite, in particular, my reservations about any possibility of reformation of some of the worst and most persistent offenders, I remain opposed to capital punishment.

The Hon IDF Callinan AC QC

Editor’s Note: This is a text of the paper delivered at the official opening of the Path to Abolition, a History of Execution in Queensland on 18 June  2014 in the Banco Court.

Footnotes

1. Karun of Leke Dukagjini, see for example, The Albanian Blood Feud J. Int’l, & Prac. 177 1997.
2.  See, for example, M Hedge, “A Sentence Only Slowly Dying” Western Australian (16 August 2003) at 55; C Pearson, “Justice: Absolute or Diluted” Weekend Australian (16 August 2003) at 22; A Bolt, “Amrozi Taps Anger” Herald Sun (11 August 2003) at 19. 
3. Sir William Blackstone, speech published in “opinion of Different Authors on the Punishment of Death”, vol 1 (1809) at 17.
4. Potas, I and Walker J, “Capital Punishment”, published by the Australian Institute of Criminology, February 1981 at 1.
5. Australian Coalition Against Death Penalty; www.angelfire.com/stars/dorina/historycp.html.
6. Criminal Code Amendment Act 1922 (Q).
7. Australian Coalition Against Death Penalty; www.angelfire.com/stars/dorina/historycp.html.
8. Brisbane Courier, Tuesday 14 June 1887.
9. Brisbane Courier, Tuesday 14 June 1887.
10. Criminal Code Act 1968 (Tas).
11. Death Penalty Abolition Act 1973(Cth).
12. Criminal Law Consolidation Ordinance 1973 (NT).
13. Crimes (Capital Offences) Act 1975 (Vic).
14. Statutes Amendment (Capital Punishment Abolition) Act 1976 (SA).
15. Crimes (Amendment) Ordinance 1983 (ACT).
16. Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA).
17. While it had been abolished for all crimes except for treason and piracy by the Crimes (Amendment) Act 1955 (NSW), it was finally abolished for treason and piracy by the Crimes (Death Penalty Abolition) Amendment Act 1985 (NSW) and the Miscellaneous Acts (Death Penalty Abolition) Amendment Act 1985 (NSW).
18. See Jones B (ed), The Penalty is Death: Capital Punishment in the Twentieth Century, Sun Books (1968) at 265-270.
19. Kirby M, “The High Court and the Death Penalty: Looking Back, Looking Forward, Looking Around”, Australian Law Journal, vol 77, Dec 2004, 811.
20. (1934) 52 CLR 335.
21. Duffy CJ, Dixon, Evatt and McTiernan JJ.
22. (1934) 52 CLR 335 at 339.
23. (1950) 82 CLR 133.
24. Ayres, P, “Owen Dixon”, The Miegunyah Press, 2003 at 280-281.
25. (1962) 108 CLR 620.
26. http://www.amnesty.org.au/whats_happening/death_penalty/fact_and_figures
27. Art 6(2) of the ICCPR.
28.  Art 6(2) of the ICCPR.
29. Art 6(2) of the ICCPR.
30. Art 6(4) of the ICCPR.
31. Art 6(5) of the ICCPR.
32. Adopted by the General Assembly Resolution 44/128 on 15 December 1989, and entered into force on 11 July 1991.  As at 10 February 2000 there were only 42 State Parties to this Protocol.
33. Art 2(1) of the Second Optional Protocol.
34. 408 US 238 (1972).
35. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.
36. 428 US 153 (1976).
37. United States Supreme Court, slip opinion, 1 March 2005.
38. At 21.
39. At 10-13 per Kennedy J.
40. At 20.
41. http://www.amnestyusa.org/abolish/listpending.do?value=2004 and http://www.amnestyuse.org/abolish/listbyyear.do.
42. Murder (Abolition of Death Penalty) Act 1965 (UK).  The death penalty was retained for the offences of treason and piracy with violence and was abolished in 1998 under the Crime and Disorder Act 1998 (UK).
43. Lewis & Ors v Attorney-General of Jamaica [2000] 3 WLR 1785.
44. Boyce & Anor v The Queen [2004] UKPC 32.
45. Matthew v The State [2004] UKPC 33.
46. “Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial”, published by the National Institute of Justice, June 1996 and available at http://www.ncjrs.org/pdffiles/dnaevid.pdf.
47. The Death Penalty Information Centre (DPIC) is a non-profit organization that collates and publishes information on issues concerning capital punishment. See http://www.deathpenaltyinfo.org
48. “Innocence and the Crisis in the American Death Penalty”, September 2004, available from http://www.deathpenaltyinfo.org.
49. “Innocence and the Crisis in the American Death Penalty”, September 2004, available from http://www.deathpenaltyinfo.org.
50. Mallard v The Queen 2005 224 CLR 142.
51. [1961] AC 290.
52. Ayres, P, “Owen Dixon”, The Miegunyah Press, 2003 at 276.
53. (1963) 111 CLR 610.
54. Baze v Rees, 553 U.S. 35 (2008).
55. U.S. Const. amend. VIII.
56. Hall v Florida, 572 U. S. _ (2014).
57. Stanford v Kentucky, 492 U.S. 361 (1989).
58. Carolyn Strange, “The Half-Life of the Death Penalty: Public Memory in Australia and Canada”, Australian Canadian Studies, vol 19, no 2, 201: 81-99.