The push to remove “Australia’s worst law” from the books is gaining momentum, with over 238,000 people signing a petition to end the ‘gay panic’ defence in Queensland.
The defence, which is used to reduce a charge of murder to manslaughter if the victim was making homosexual advances against the defendant, was upheld by the High Court in 1997. Since then, most Australian states and territories have passed legislation repealing its use. But Queensland and South Australia still refuse to do so.
Reverend Paul Kelly (above left), the man behind the petition, explained why he was campaigning for the defence’s repeal:
“Laws like the “gay panic” defence are a crucial part of legitimising and reinforcing a culture of hate which means that 73% of gay and lesbian Queenslanders are subjected to verbal abuse or physical violence for their sexuality.” he wrote on the petition’s website.
“Queensland is now one of the last states upholding the idea that a person can be panicked enough by gay and lesbian people to justify murder.”
Kelly’s experience with the defence came eight years ago, when a man was killed on his church’s grounds. When the case went to trial, one of the attackers successfully claimed ‘gay panic’ and was acquitted for murder. “I’m utterly appalled that a law that so revoltingly and openly discriminates against gay people is still tolerated in a modern society.” he said.
Last year, the Queensland Government announced it was working towards abolishing the defence; but progress has been slow.
High Court Orders Retrial of ‘Gay Panic’ Case in South Australia
Meanwhile in South Australia, the only other jurisdiction where the defence is still available, the Supreme Court has recently completed the retrial of a 2011 murder case that used the gay panic defence (South Australia).
In 2013, the court sentenced the defendant to life in prison after finding him guilty of bashing and stabbing another man to death, before dumping his body in a wheelie bin.
The defendant and victim began their night in a pub, before going back to the defendant’s house to continue drinking with his friends and family. Over the course of the night, the defendant claimed the victim had made several sexual advances toward him. The court heard that the defendant had threatened to harm the victim should he continue making advances. After a third advance, the defendant began punching and kicking the victim until he was on the ground. He then got a knife and stabbed the victim.
Although the facts were not disputed, the defendant’s criminal lawyer appealed for a retrial, accusing the judge of misdirecting the jury on the issue of provocation. In South Australia, provocation acts as a partial defence which can reduce murder to manslaughter if it can be shown that the victim committed an act that caused the defendant to lose control.
Last month, the High Court upheld the appeal, stating that “the provocation as it might have been perceived by the appellant had a larger dimension than merely an unwanted homosexual advance on a heterosexual man”.
“It is not impossible that a jury could reasonably infer that, because the appellant is Aboriginal, he perceived the deceased’s conduct towards him to be racially based and for that reason especially insulting.”
The new judgment is expected within days.
‘Gay Panic’ in New South Wales
Like South Australia, New South Wales also allows provocation to be used as a partial defence against murder. However, the section of the Crimes Act that governs its use has been amended to exclude cases where the behaviour is brought about by non-violence sexual advances.
Speaking in 2013, when the first draft of the amendment was released, former Premier Barry O’Farrell said defendants would have to prove “extreme provocation” in order to use the partial defence.
“Under the bill, if a person kills their partner, the fact that their partner has been unfaithful, or wishes to leave the relationship, cannot amount to ‘extreme provocation’,” O’Farrell said.
“The same will be the case if a person kills someone who makes a non-violent sexual advance
In order to use the defence, the following matters must be established that:
- The victim committed a ‘serious indictable offence’ (which is one that carries a maximum penalty of 5 years’ imprisonment or more);
- The offence caused the defendant to lose control; and
- The conduct of the deceased would cause an ordinary person to lose control to the extent of intending to kill or inflict grievous bodily harm.
In South Australia, the Greens have proposed a similar amendment that would see the threshold for provocation shifted to exclude ‘gay panic’.