Guest Shot: For or against the death penalty?

The following was originally published in Perth (Australia) Confidential on November 10, 2008.

For or against the death penalty?

By Tom Percy QC

November 10, 2008 11:24am
I have to admit I once supported the death penalty. It had a fundamental righteousness, an eye-for-an-eye type of justice, with a superficial but immediate appeal to it.

However, a sequence of events was to change my mind as I came at close quarters with two men and a woman who had experienced the shadow of the gallows.

Even though we haven’t hanged anyone in Australia since 1967, and in WA since 1964, those unlucky enough to be convicted of wilful murder in Perth were still sentenced to death until 1984, when the mandatory penalty was removed from the Criminal Code.

The last one of those was a country woman named Brenda Hodge, who was convicted in my hometown of Kalgoorlie in 1984. I was the junior (very junior) counsel to a leading Perth QC at her trial. We all believed that she wouldn’t hang, but watching on as the judge pronounced the litany of the death sentence was something I shall never forget.

It was a galling experience, like something out of a movie. The terror in her eyes as the sentence was passed will haunt me forever.

They didn’t hang her. She survived prison, was released some years ago, and has lived a blameless life ever since.

Fifteen years later I came to meet John Button and took on his case for what appeared to be a wrongful conviction in 1963. He had not been sentenced to death, having only been convicted of the alternate offence of manslaughter, but he did stand trial for wilful murder in an era when a conviction for that offence meant he would almost certainly have been hanged.

He was ultimately acquitted in 2002, some 40 years after the event, but the fact that he had come within an ace of being executed hardened my opposition to the death penalty. It was a little too permanent for my liking.

Through my involvement in Button’s case I was asked to assist with Darryl Beamish’s case in 2004. He was a mentally impaired man who had been sentenced to death in 1961, and was fortunate to have been reprieved from hanging. Only the fact of his age (he was 20 when he entered death row at Fremantle) and that he was a deaf mute saved him. The 15 years’ prison he wrongly served for the offence was hard to get my head around, as was the fact he was only spared execution by the accident of his own physical disabilities.

Like Button, he had been wrongly convicted. My involvement in this case galvanised me (if any galvanisation were still required) in the resolve that there could never be any justification for a community putting one of its own members to death. Obviously not all people convicted of capital crimes are wrongly convicted. The vast majority of these cases will involve the right person. But what of those that don’t? Where the system gets it wrong?

Proponents of capital punishment assure us that the possibility of a mistake is so unlikely that we need not worry about it. I can’t subscribe to that. Nor, I suspect, would Andrew Mallard and at least three of my former clients.