Queensland still failing to act on a medieval murder defence

Queensland Premier Anastasia Palaszcuk and Attorney General Yvette D'Ath may be missing the bigger picture on the legal defence of provocation. AAP Image/Dave Hunt

The Queensland Labor government plans to re-introduce amendments to abolish the “gay panic defence”, under which defendants could argue that unwanted homosexual advances provoked them to kill.

The move has been widely praised as a welcome statement that homophobic attitudes will not be tolerated as a defence to violent crime.

But while attempts to abolish gay panic defence are positive, they represent a missed opportunity to address a broader problem in Queensland law – that “provocation” in more general terms can be used to reduce a murder charge to manslaughter.

The legal defence of provocation has been completely abolished in Tasmania, Victoria, Western Australia and New Zealand. It’s time for Queensland to follow suit.

Old origins of the “provocation” defence

Gay panic is not a defence in itself. It is one argument that can be used to raise the defence of “provocation”.

Provocation is a partial defence that reduces a charge of murder to a conviction for manslaughter. It applies where the defendant has intentionally or recklessly killed another person, but the jury accepts that they were provoked and lost self-control, and that the provocation was serious enough that an ordinary person could have lost control and killed in that situation.

The “loss of self-control” is not literal. If a person suffers an extreme physical or psychological blow they can literally lose total control. If this happens, they are acting as an automaton and their actions are not voluntary and can’t attract criminal liability. The loss of control in provocation refers to a state where self-control would have been difficult, but not impossible.

“Provocation” arose in the Middle Ages when it was considered cowardly for a man to ignore an insult to his masculinity, whether delivered through words or conduct such as adultery with his wife. If a man killed in such a situation, he was viewed as blameworthy but not deserving of the mandatory death sentence for murder.

There are no set categories of “provocative conduct”, but allegations of homosexual advance, and jealousy and rejection in heterosexual intimate relationships, are the most common provocation defences.

Provocation has been subject to controversy in contemporary Australia, and attracted much attention from law reform bodies across the country, including in Western Australia, Victoria, New South Wales, Queensland and the Northern Territory, as well as by academics and in the media.

Law reform has frequently resulted from public outrage at cases where male offenders have successfully argued provocation, but the community felt that a murder conviction was appropriate. The initial horror at the shocking crimes was compounded by legal arguments blaming the victims, at least partly, for their violent deaths.

The controversial cases include situations of homosexual advance, as well as killings of current and former female partners. In the latter instance, there have been too many cases to list, including Melbourne businessman James Stuart Ramage, who killed his estranged wife Julie in 2003 (R v Ramage); Peter Keogh’s fatal stabbing of his ex-partner, Vicki Cleary, in 1987 (R v Keogh in Victoria); R v Singh in NSW; and R v Sebo in Queensland.

Piecemeal reform

The reactive nature of the law reform efforts has left the law piecemeal and patchy, with significant variations across the country.

Provocation has already been abolished in Tasmania, Victoria, Western Australia and New Zealand.

In the Northern Territory and the Australian Capital Territory, the defence has been modified so that a non-violent sexual advance cannot, without other factors, constitute provocation.

In New South Wales, non-violent sexual advance cannot provide a basis for provocation, and any other provocation must be “extreme”.

In Queensland, ending or changing a relationship cannot constitute provocation, and if the current proposals succeed then homosexual advance will not be able to either.

Provocation has not been modified at all in South Australia, although the Supreme Court indicated in R v Hajistassi that homosexual advance or relationship disputes were unlikely to succeed. Homosexual advance was unsuccessfully raised in R v Lindsay last year, but the High Court recently heard an appeal against conviction for murder and judgement is pending.

Homosexual advance defence

The High Court case of Green v R has been heavily criticised for allowing the “gay panic” or homosexual advance defence.

However, the commentary consistently – and wrongly – suggests that a simple proposition by one man to another can underpin the provocation defence. In Green v R, the victim sneaked into bed with the defendant and touched his genitals, causing the defendant to re-live the trauma of childhood sexual abuse by a male. A similar heterosexual situation would likely also have succeeded.

The 2010 murder of Wayne Ruks has been similarly condemned, and has led to the proposed reform in Queensland.

However, this case has also been consistently incorrectly reported. Homosexual advance was indeed raised in the case, and verdicts of manslaughter were indeed returned. However, there was no causal connection between the two. The convictions for manslaughter were reached on the basis that both accused lacked the intent to kill or cause serious harm, rather than that their intention to kill was mitigated by gay panic.

These two cases are frequently cited as the reason why the gay panic defence must be abolished. However, the misrepresentation of the cases overstates the impact that gay panic arguments have had on the law and deflects attention from the real problem – that victims in various situations can be blamed for provoking their own deaths.

Full responsibility

It is a definite advance in the law to see the abolition of the gay panic defence. However, there is no principled basis for restricting a person from having a partial defence of provocation in some circumstances and not in others.

A person who intentionally or recklessly kills, unless they are acting in self-defence, should be convicted of murder – regardless of who provoked them.

Anyone who kills in a state of rage should bear full responsibility for their actions rather than being able to blame the actions or, more commonly, the words, of the person they killed.

The problem here is not the gay panic defence. It’s the broader defence of “provocation”.

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