CAPITAL PUNISHMENT: A CROSS JURISDICTIONAL CRITIQUE VENGADESH KUMARAVELU Bachelor of Laws (LL.B) Murdoch University This thesis is presented for the Honours degree of Bachelor of Laws of Murdoch University (November 2013) i DECLARATION OF ORIGINALITY I, Vengadesh Kumaravelu, hereby declare that this thesis is my own work and effort and that it has not been submitted anywhere for any award. Where other sources of information have been used, they have been acknowledged. Vengadesh Kumaravelu Dated: 02 December 2013 ii ACKNOWLEDGEMENTS I am deeply indebted to my supervisor, Lorraine Finlay at the School of Law, Murdoch University, without whose expertise, guidance and support, the completion of this Honours thesis and the Legal Research Methods for Honours unit would have been impossible. I would also like to thank all my friends in Australia and Singapore for their support throughout my journey in Bachelor of Laws with Honours program. Finally, I would like to thank my family for their unconditional love, support, advice and encouragement throughout this journey. Vengadesh Kumaravelu Dated: 02 December 2013 iii ABSTRACT This thesis analyses whether any changes to the current scope of the death penalty in either Australia or Singapore invite consideration or whether the respective regimes are grounded in sound principle. Both countries have been selected as they are at opposing ends of the death penalty spectrum, being abolitionist and retentionist respectively. One major issue reoccurring in various jurisdictions is an innocent accused being wrongfully convicted of a crime. Human institutions such as a country’s criminal justice system are fallible. Countries like Singapore that have a more ‘weighted’ approach towards Herbert Packer’s ‘crime control model’ must try to strike a balance with the ‘due process model’ to prevent the occurrences of wrongful convictions. Given the irreversible nature of capital punishment, this paper contends that an accused charged for a capital offence must be provided their fundamental rights, such as the right to access to counsel and the right to silence. The thesis also emphasizes the importance of pre- trial investigative procedures, such as the video-recording of suspect statements during police questioning or the preservation of DNA samples, to protect innocent individuals. Mandatory sentencing itself is subject to various problems. These issues may be amplified when the mandatory death sentence is concern. Therefore, the thesis contends that the mandatory death sentence does not deter (or only marginally deters) crimes as many retentionist States recognize. However, parliamentary sovereign nations, like Singapore, have the right to determine its criminal laws. The current state of international law does not totally prohibit the imposition of capital punishment. By considering the community’s perception of capital punishment in both jurisdictions, this paper finally discusses two issues; (1) whether the current state of the law in Australia allows it to reintroduce the death penalty if it desires to, and (2) whether the amendments in Singapore’s death penalty regime in 2012 signal the possible abolition of the punishment. iv TABLE OF CONTENTS INTRODUCTION……………………………………………………………………………1 I HISTORY OF CAPITAL PUNISHMENT & INTERNATIONAL LAW……………...4 A Ancient History……………………….……………….……………………………..4 B Capital Punishment in England….…………………………………………………..5 1) The Black Act….……………………………………………….…………………6 C Capital Punishment in Australia………………………..……………………………8 D Brief History of Singapore………………………………………………………….11 1) Straits Settlements Penal Code……………………………………...……...13 2) Crime Rates in the Straits Settlements……………………………………..15 E Capital Punishment in Singapore……..………...………………………………….18 F International Law…………………………………………………………………...27 1) International Conventions and Instrumentalities……………......................28 2) International Obligations…………………………………………………...30 (a) Australia…………………………………………………………...30 (b) Singapore………………………………………………………….30 II CRIMINAL PROCESS MODELS & WRONGFUL CONVICTIONS………………...36 A Criminal Process Models………………………………..……………………...…..36 B Wrongful Convictions……………………………………………………………….40 1) The Judiciary and Legislature……...……………………………………...41 (a) Right to Counsel……………………………………………………….44 (b) Right to Silence………………………………………………………..49 v 2) Police Force……...………………………………………………………...55 (a) Tunnel Vision and Confirmation Bias…………………………………56 (b) Police Corruption………………………………………………………57 (c) Video-recording Interrogations……………...………………………...59 3) Prosecutor’s Non-disclosure and Police Misconduct……………………...63 4) Jury System………………………………………………………………...70 (a) Instructions to Jury…………………………………………………….73 (b) Scientific Evidence…………………………………………………….75 (c) Pre-trial Publicity…………….………………………………………...77 5) Unanimous Decision………………………………………...……………..79 6) Innocence Projects & DNA………………………………………………...80 III THE MANDATORY DEATH PENALTY……………………………………………..86 1) Constitutionality of Singapore’s Mandatory Death Penalty………...…………87 2) Abolishing the Mandatory Nature of the Death Penalty?..................................94 (a) Drug Offences…………………………………………...……………..95 (b) Culpable Homicide amounting to Murder……………………………..98 (c) The Future of the Death Penalty in Singapore……………………….101 i Judicial Discretion……………………………………………………………………101 ii Attitude of Singaporeans……………………………………………………………..102 iii Ensuring the Community Understands………………………………….…………105 iv New Laws in Action…………………………………………………………………..107 v No Radical Change for Now………………………………………..…………107 3) Can Australia Reinstate the Death Penalty?.....................................................110 CONCLUSION………………………………………………………….…………........... 112 BIBLIOGRAPHY…………………………………………………………………………… i vi CAPITAL PUNISHMENT: A CROSS JURISDICTIONAL CRITIQUE VENGADESH KUMARAVELU INTRODUCTION Capital punishment refers to state sanctioned executions of convicted individuals. According to the statistics on the website of Amnesty International, 140 countries have abolished the penalty ‘in law or practise’; whilst 58 countries still impose capital punishment.1 Notwithstanding these figures, the genesis for this thesis arises from the ongoing international debates, in both abolitionist and retentionist countries, on whether the punishment fits in a civilised legal system. This thesis paper will explore the origins of the death penalty and whether any change is needed in its administration. It will focus principally on a comparison between the divergent approaches of the two countries, Australia and Singapore. Specifically, laws governing murder and drug related offences, and criminal processes in Singapore and Western Australia, form the bedrock of this thesis. Ultimately, this paper will analyse whether any changes to the current scope of the death penalty in either Australia or Singapore invite consideration or whether the respective regimes are grounded in sound principle. There are reasons why this thesis compares Singapore and Australia, specifically Western Australia. Firstly, their criminal laws are contained in a single Code. Secondly, Australia and Singapore have common British heritage in their legal systems. Thirdly, both Singapore and Australia are developed countries.2 Lastly, All errors in this paper are my own. 1 For breakdown of statistics, See Amnesty International, Abolitionist and Retentionist Countries <http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries>. 2 The International Statistical Institute, Developing Countries 2013 <http://www.isi-web.org/component/content/article/5-root/root/81-developing>. 1 concepts like the ‘Rule of Law’ and ‘Separation of Powers’ are evident in both the Singaporean and Australian legal systems.3 Australia’s opposition to the death penalty is apparent from its ratification of the International Covenant on Civil and Political Rights (‘ICCPR’), and the Second Optional Protocol to the ICCPR.4 In contrast, Singapore is not a signatory of the ICCPR, and firmly believes that punishment is vital to combat crimes within its jurisdiction.5 Singapore claims to impose capital punishment for only the most serious crimes (namely serious murders and drug trafficking),6 recognising the severity of the penalty and its irreversible nature.7 It did, however, in November 2012, implement reforms to its mandatory imposition of death penalty. The fact that both jurisdictions are at opposing ends of the capital punishment spectrum will make the analysis fascinating and informative. Chapter one of this paper examines the history of capital punishment in Singapore and Australia. A brief discussion of the ancient English legal system in the 18th and 19th centuries, and the international law obligations of Australia and Singapore will be explained. 3 Cf See, eg, Tania Jeyamohan, The Rights of Malaysia’s Ethnic Minorities- Is Democracy Dead (LLM Thesis, Murdoch University, 2004) <http://researchrepository.murdoch.edu.au/116/2/02Whole.pdf>. 4 Jo Lennan and George Williams, ‘The Death Penalty in Australian Law’ (2012) 34 Sydney Law Review 659, 682-83; See also Lorraine Finlay, ‘Exporting the Death Penalty? Reconciling International Police Cooperation and the Abolition of the Death Penalty in Australia’ (2011) 33 Sydney Law Review 95. 5 Ministry of Home Affairs, Government of Singapore, The Singapore Government's Response to Amnesty International's Report "Singapore - The Death Penalty: A Hidden Toll Of Executions" (24 July 2007) <http://www.mha.gov.sg/basic_content.aspx?pageid=74>; See also Human Rights Council, Working