Greens Attempt to Remove the "Gay Panic Defence" from the SA Criminal Law

Thursday 21 May 2015 @ 12.07 p.m. | Crime | Legal Research

Previously we have reported on the High Court decision in Lindsay v R [2015] HCA 16 delivered 6 May 2015, where the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of South Australia, quashing the appellant's conviction for murder and ordering a new trial (see Lindsay v R [2015] HCA 16: New Trial Ordered).

This was a significant decision because the High Court reversed the view among many in the law, that the defence of "homosexual advance" (also known as "Gay Panic") to a murder charge had been killed off by the South Australian Court of Criminal Appeal in 2014 when it had rejected Mr Lindsay's use of the defence. The decision means South Australia is effectively the only state having "homosexual advance" as partial defence to murder. Other states have, according to the ABC's Law Report, either abolished it or limited its application. On Wednesday 13 May 2015, the Greens introduced into the South Australian Legislative Council the Criminal Law Consolidation (Provocation) Amendment Bill 2015 to ensure as Greens MLC Tammy Franks has said, that South Australia follows ". . . the lead of other states and do[es] away with the archaic 'gay panic’ common law defence, . . ."

Historical Background

The partial common law defence to murder known as the homosexual advancement test was established in the case of Green v The Queen [1997] HCA 50, where a male (Green), stabbed his friend to death with a pair of scissors after an apparently unwanted and non-violent sexual approach. Green was initially sentenced to murder for a crime which involved hitting the victim 35 times, banging his face against a wall and stabbing him 10 times with scissors. However, Green's sentence was downgraded to manslaughter as result of his ability to rely on a "gay panic" defence.

Some Key Points in the Lindsay Case

The basis of the Lindsay appeal to the Court of Criminal Appeal was on the grounds that the trial judge's explanation to the jury of the defence of provocation was flawed; it being hard to explain the test for provocation very clearly. The court agreed that the explanation to the jury of the defence was a flawed explanation and that it is difficult to explain. However, the Court of Criminal Appeal decided that the provocation defence should not have been put to the jury in the first place because, ". . . an ordinary person could not lose their self-control in these sort of circumstances . . ." adding to this that, a non-violent homosexual advance in 21st century Australia does not amount to legal provocation, Australia having advanced as a society - and so they dismissed Lindsay's appeal.

On appeal to the High Court sitting in Adelaide, Lindsay argued among other matters that the trial judge was correct to leave provocation to the jury at trial, disagreeing with the Court of Criminal Appeal, saying there was ". . . a basis for the defence", and that the instructions to the jury were faulty. Propositions both of which were accepted by the High Court. Effectively the High Court found it was open to a reasonable jury:

". . . to consider that an offer of money for sex by a Caucasian man to an Aboriginal man in the Aboriginal man's home and in the presence of his wife and family could count as legal provocation".

A Real Problem with the Decision

The problem with the defence is the difficulty of proving the extent of the provocation - after all the person said to have initiated the provocation is dead. As the ABC's Law Report points out:

"The problem with the defence, which many of its critics raised, is that it does lead to victim blaming. The defence requires the accused really to say that they were provoked into killing, and the victim provoked their own demise. And relatives are likely to be sitting in court, they are grieving relatives, and listening to a character assassination of the person killed, and these accusations cannot always really be tested".

Also problematic is that the defence could also allow anger to be an excuse for killing, which would be a misuse of the law.

The Greens Bill

The current Greens Bill proposes to amend the Criminal Law Consolidation Act 1935 (SA) by inserting a new section 11A (Limitation on defence of provocation) providing as follows:

For the purposes of proceedings in which the defence of provocation may be raised, conduct of a sexual nature by a person does not constitute provocation merely because the person was the same sex as the defendant.

In a media release speaking to the Bill Greens MLC Tammy Franks says:

“The idea that a common law defence exists where a man who has killed another man could have his charge downgraded from murder to manslaughter because the victim made an unwanted, non-violent homosexual advance towards him is appalling, yet this partial common law defence is still being relied upon in 2015".

She also make the point that the law is gender biased and clearly based on antiquated prejudices, saying:

“This provocation defence only applies if a man has killed another man. It doesn’t apply if a man makes a non-violent sexual advance towards a woman, or if a woman makes a non-violent sexual advance towards a man or woman".

It will be interesting to see if the Greens second attempt to pass this legislation is more successful than its previous attempt in 2013. Certainly the decision in Lindsay seems to indicate that its time has come.

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