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Wednesday, 12 September 1973
Page: 917

Mr KILLEN (Moreton) - Some years ago in England 2 young men were charged with murder. They were aged respectively 16 years and, as I recall, 19 years. The circumstances whereby they came to stand in the dock were these: They broke into a warehouse late at night and they were apprehended by a caretaker. The young boy 16 years of age had a revolver with him. They sought to escape from the caretaker. The elder boy called out to the younger one: 'Give it to him, Dick. Give it to him.'

Mr James - The lead or the pistol?

Mr KILLEN - I thought we were dealing with a matter of high principle; not with a matter of comics. The young boy pulled the trigger of the revolver and shot the warehouse keeper, who died. Both of them were charged with murder and both of them were convicted. The young boy who had pulled the trigger and who was in fact responsible for the death of the caretaker, because of his age could not be sentenced to death and the elder boy, who was in fact an accomplice, a party to the offence, the one who had called out: 'Give it to him, Dick. Give it to him,' had the sentence carried out upon him. I give that narrative because I believe that it points to the dilemma in society's consideration of whether or not the death penalty should be retained. I will come back to it in a moment or two.

A few months ago I went to the funeral of a young daughter of one of my very close friends and while we were waiting for the cortege to arrive at the cemetery in Brisbane I stood beside the grave of a man who was hanged in Queensland some years ago for bushranging. His name was .Patrick Keniffe I stood beside his grave with a .man who. has appeared in hundreds of murder trials, and there are very few people living in the Englishspeaking world today who can say they have appeared in hundreds of murder trials. He is Mr Daniel Casey of the criminal bar, a very distinguished Australian and one of the greatest defenders of liberty this country has ever known. I could not help but think as I stood beside the grave of Keniffe: 'Could you have pulled the lever to send this man to eternity?' As the coffin of this young girl was lowered into the grave the thought came to me, as I believe it comes to most of us, that the most tremendous event in life is death. No matter what our sense of belief may be, whether we are squeamish about the idea of dying or not, whether any one of us is gripped with any sense of thanatophobia or not, the greatest event in life is death. I went back to Keniffe: 'Could you have pulled the lever to send this man hurtling to eternity?'

The statistics are dead against those who assert that capital punishment is a deterrent against capital offences, . that it discourages people from committing crimes of great or exacting violence. I must confess that this has been one of those intellectual and philosophical torments through which I have gone. I suppose it is something that all of us from one time to another pass through. I must confess that I remain today unconvinced that fierce penalties do in fact discourage people from committing offences. When one comes to the central core of what lies before us surely there is on the one hand this question: Does the preservation of capital punishment discourage and should society seek to preserve it? I must say for myself that when I reflect upon the outrageous crimes that can be and are committed during times of war, I unhesitatingly say that capital punishment should be preserved for those who would seek to so outrage their country as to hand it over to the enemy. But then I remind myself that in times of war most of the laws of society do in fact disappear or, if they do not disappear, are certainly put in jeopardy. This seems to me to be the question that this House should decide this evening. We can legislate only with respect to the 2 Territories, the Australian Capital Territory and the Northern Territory. Statistically can we be sure that we are right? It is very comforting to look at a great range of figures and say: 'I think perhaps you are right in contending that capital punishment has not led to any decrease in substantial crime, say, in the United States of America or the United Kingdom and, ergo, that will be our experience here in Australia'. I do not think that that is the way we can approach it. What we have to consider is whether or not our society can accept that form of retribution which seeks to extinguish life. That is the proposition as I see it and I respect those who take one side or the other. I have thought earnestly about what society should do to a person who, for example, would insure his mother-in-law, put her on a plane, put a bomb on the plane and blow up the whole plane. I have thought about the circumstances where an individual would place a bomb, say, under the central control tower at Mascot aerodrome when aircraft were manoeuvering in close proximity, either coming in to land or taking off; or where a bomb is placed under the central signal station at the Central Railway Station when half a dozen trains were coming in to their respective positions and the enormous calamities that would result from the detonation of that weapon. That is a consideration and it is a matter for utter conscience.

I do not think that any political doctrine can bind any person to any particular view on this. It is quite beyond political doctrine no matter how expansive, no matter how definitive that doctrine may be. I think we all have to work these questions out for ourselves, in our own way and however imperfectly we may do it. There are a few of us who have appeared in trials involving capital offences. For myself I have always found them to be most harrowing experiences and, at the risk of selfindulgence, I recall the occasion when I appeared for a railway fettler charged in Queensland with wilful murder. He was seen by 2 people to put 6 bullets into a man. He admitted to the fact that he had done so to 3 others, including a doctor, a sister at a hospital and an ambulance-bearer. The only defence available to that man was that of intoxication, to seek to reduce the charge to manslaughter. I failed, and the effect of that failure upon me was very significant. It was not up to me to measure its effect upon the man. But what has always remained with me is the thought that if when the jury brought in the verdict of guilty, the judge, as he would have in years gone by, had imposed the one sentence available and sentenced this man to be hanged, I would have found that utterly unconscionable having regard to all of the circumstances. I must confess that that personal experience of that one murder trial has taken me very considerably away from the position I once held, whether rightly or wrongly.

I know there are those who are probably of stronger fibre, of stronger character, of stronger mind, who would not feel squeamish about that sort of thing. But to have lived through the days with that man and to have seen the sense of anguish and indeed to have felt it is not an experience that can be lightly described nor, speaking for myself, lightly dismissed. On the other hand I have had the experience of appearing for people who, because of the way the events fell, because of what one may describe as 'the luck of the conduct of the trial', escaped.

Of course it is not up to any counsel to determine whether or not his client is in fact guilty. Indeed if a client does admit to his own guilt the duty of the counsel is plain - he must put the Crown to its proof. But the difference between days gone by and today seems to me to be this: We contend that we are enlightened although I have the greatest of doubts whether in fact the reality bears out our intention. But I think we should give some indication that we are striving to bear out our contention and that we are enlightened. We live in a world that has become desperately inured to the tragic loss of life. We live in a world where human values and regard for human values are very much in jeopardy and taken for granted. I suppose the constant search of mankind today, as it has always been although never made quite clear, is towards seeking to create that form of society in which there is a very genuine regard for human values and the supreme human value, surely, is that of human life.

I come back to where I began. Death is the greatest event in life no matter what our belief may be. It is very hard to ask people to destroy life. This is not some vague, some empty sentimentalism. To ask a person to go and to take life in war is a matter which, of course, we take for granted and we are not emancipated by the fact that we do take it for granted. But during the course of peace surely something else is the search of us all. I have not had an opportunity of examining the amendments which have been circulated in the name of my friend the honourable member for New England (Mr Sinclair). I assure him that I will examine them. I express to the House that at the moment I hold to the view that in cases of treason the extreme penalty should be maintained. I confess without any sense of shame that I have very considerable misgivings with respect to what should be done to those who commit heinous crimes involving the loss of a great deal of life either by the blowing up of aircraft or by the blowing up of those control mechanisms which lead to calamities.

This is the position in which I find myself: Crimes of passion such as murder which has been brought about by provocation are in the ultimate intelligible and one seeks to understand them. The development of the law has been such as to seek to offer some form of mitigation. Indeed, one only has to mention provocation to realise that in certain circumstances where provocation has been established that mitigation does reduce the enormity of the crime and as a consequence relieves the person who is involved of facing the extreme penalty. This is a matter of great gravity but beyond that it is a matter of simple blunt conscience and no matter how hard we may strive to escape our conscience it is something to which we are tied, and tied for all time.

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