By Paul Gregoire and Ugur Nedim
After years of petitioning, the Queensland government has finally introduced a bill to abolish the antiquated gay panic defence. The state’s attorney-general Yvette D’Ath presented the Criminal Law Amendment Bill 2016 to parliament on Wednesday.
Officially known as the homosexual advancement defence, gay panic is a partial defence of provocation. It means that an accused murderer can claim that an unwanted sexual advance made by a person of the same sex caused them to lose control.
It can potentially reduce a charge of murder to manslaughter, which can result in a lesser sentence.
The long sought after amendment
The Queensland Bill aims to amend section 304 of the state’s Criminal Code. Although the defence has predominently been used by men accused of killing other men, the attorney-general said the amendment will use the gender neutral phrase “unwanted sexual advance.”
Ms D’Ath acknowledged the importance of repealing the law for the LGBTIQ community, and said she hoped parliament would vote on the legislation early next year.
The proposal comes after a group of celebrities – including Missy Higgins, Josh Thomas and Tom Ballard – called on state premier Annastacia Palaszczuk to introduce the reform bill before the end of 2016.
Fourth time lucky
LGBTI Legal Service executive director Emile McPhee told Sydney Criminal Lawyers® that while he welcomes the move, it’s long overdue. “The problem is we’ve had a crack at this one no less than three times before,” Mr McPhee said. “But I’m hoping that in one form or another it will go through. And I think it will.”
As McPhee put it, one of the biggest issues surrounding the defence is the stigma – specifically, the way it’s justified “discrimination and bigotry based on somebody’s sexuality”.
He added that if the defence is abolished “it goes towards saying there’s no reason to murder somebody if they’ve made an unwanted advance, unless it’s violent.”
Killers convicted of manslaughter
Queensland experienced two separate incidents of men beaten to death by two other men in the Maryborough region in 2008. The gay panic defence was successfully argued in both cases.
In July of that year, Jason Pearce and Richard Meerdink bashed Wayne Ruks and left him for dead in a churchyard. During the trial, Pearce alleged that Ruks had made a sexual advance towards him.
Both the accused were convicted of manslaughter, rather than the more serious offence of murder.
In a separate case, John Peterson flew into a rage and beat Stephen Ward to death in August 2008. Peterson alleged Ward, a 62-year-old hitchhiker, had made a pass at him. Along with his companion Seamus Smith, Peterson took Ward’s body to an isolated area and left him to die.
Peterson was convicted of manslaughter and Smith was found guilty of accessory to manslaughter.
Father Paul Kelly was the priest at the church where Wayne Ruks was killed. He began a campaign to abolish gay panic defence in late 2011.
An online petition he initiated has garnered over 289,000 signatures. The priest presented the petition to the attorney-general on Wednesday afternoon.
An antiquated law
The partial defence of provocation hearkens back to 17th century England: a time when certain situations could be seen as a slight against a man’s honour.
Back then, capital punishment was the mandatory sentence for a person convicted of murder. The defence of provocation allowed for the alternative verdict of manslaughter, which allowed a judge to impose a punishment other than death, when a so-called honour killing occurred.
The history of gay panic in Australia
The first time gay panic defence was successfully used in Australia was in the 1992 Victorian case of R v Murley. In that case, Robert Murley stabbed Joe Godfrey 17 times and then slit his throat. Between 1993 and 1997, 13 defendants have successfully argued the defence in NSW.
Legal commentators argue that the 1997 case of Green v the Queen established the defence in common law.
In that case, Donald Gillies made a sexual advance towards his friend Malcolm Green in the NSW town of Mudgee in May 1994. Green responded by bludgeoning Gillies with his fist, then stabbing him 35 times. After an initial sentence of murder, Green’s High Court appeal reduced his charge to manslaughter.
In 2003, Tasmania abolished provocation as a defence to murder, and Victoria and Western Australia followed suit soon after. Amendments were made to the defence in the Northern Territory and the Australian Capital Territory, which exclude non-violent sexual advances.
The state government of NSW passed the Crimes Amendment (Provocation) Bill in May 2014 . The bill removed non-violent sexual advances from provocation defence, which imposed significant restrictions on the use of the gay panic defence.
The last state left
If the Queensland amendment Bill is passed by state parliament next year, it will leave South Australia as the only jurisdiction in the country where the defence can still be argued without restriction in a court of law.
South Australian Greens MLC Tammy Franks said that it’s high time that this “archaic and outdated” law is “consigned to the dustbin of history.”
“We once led on gay law reform, now we lag far behind all the other states.” Ms Franks told Sydney Criminal Lawyers®. “It’s shameful and it diminishes us as a parliament.”
The SA Greens spokesperson for gender and sexuality pointed out that the state has had two legislative review committees report on the issue and the Human Rights Commissioner’s report released in June last year recommended the law’s repeal.
Ms Franks has been advocating for the abolishment of gay panic defence for the past four years. She has introduced two private members’ bills into parliament to have the law changed. One was introduced in May this year, while a prior bill from May 2013 is now before a legislative review committee.
According to Ms Franks, the irony is that when the first bill was introduced she was told that gay panic defence did not need to be removed because it was not being used. But “now we’re told by the government that we have to wait to remove it because it has been used.”
The Lindsay case
Gay panic was recently argued in the South Australian trial of Michael Lindsay.
In 2011, Lindsay beat and stabbed Andrew Negre to death and then dumped his body in a wheelie bin. He claimed to have been provoked because Negre made repeated sexual advances towards him. A jury found Lindsay guilty of murder in 2013.
However, the High Court of Australia overturned the conviction and ordered a retrial, as it found that a miscarriage of justice had occurred, as original trial judge suggested to the jury that gay panic should no longer be permissible.
On September 2 of this year, Mr Lindsay was sentenced to life imprisonment after again being found guilty of murder at his retrial.
An apology too soon
South Australian premier Jay Weatherill apologised on Thursday to the state’s LGBTIQ community for past discriminatory laws.
However, Ms Franks believes this is premature and hypocritical. “To have an apology this week and still have the gay panic defence able to be used in our state is a disgrace,” she concluded.