Gay rights groups want ‘gay panic’ murder defence to be abolished in South Australia

SOUTH Australian gays want a law — where murderers can claim they were provoked by homosexual advances — to be abolished. SHERADYN HOLDERHEAD reports.

Murderers can say they were provoked by unwanted homosexual advances under existing laws in South Australia..

A LAW established when “life was cheap, men were routinely armed, quarrels were common and lethal” can still be used in South Australia to defend murder charges.

It’s called provocation and the reason you may have heard of it lately is because SA is set to be the only state where the “gay panic defence” – in which a non-violent homosexual advance could be pursued to establish provocation – is able to be considered by a jury.

This has caused outrage from gay rights groups and the community broadly, resulting in Premier Jay Weatherill last month committing to “abolish the ‘gay panic’ aspect of provocation”.

But how exactly that will be done has been left up to the SA Law Reform Institute, which is formulating a report on the issue, to be released within coming months.

Discussion of gay panic has also opened up a wider debate on provocation.

Not only will SA be the only state where gay panic still exists, it will be the only state where the provocation defence introduced about 100 years ago has been left “unadulterated”. Under SA law, provocation can be used as a defence by alleging that a killing occurred following sudden, temporary loss of control in response to another’s conduct.

It’s often referred to as a partial defence because, if successful, it reduces the charge of murder to manslaughter rather than in full acquittal as is the case for self-defence. Some believe it’s crazy, likening it to a murder loophole, while others say there needs to be an alternative offence to murder. Others say juries are sensible and apply it with reference to current community standards.

Greens MLC Tammy Franks has previously had her Bill to abolish gay panic knocked off in State Parliament with the State Government, backed by some in the legal fraternity, using the argument about current community standards. They say that today a jury would never agree that a non-violent homosexual advance alone could provoke murder so why bother legislating on the issue. But now that Queensland – the only other jurisdiction where gay panic still exists – has committed to its abolition, the SA Government’s rhetoric around axing it has strengthened.

Other than gay panic, there are two other situations of social significance where provocation is commonly used – the killing of women by men and the killing of men by women.

Some argue axing provocation altogether would be a “great domestic violence initiative” because it tends to be used by men who kill women.

In 2005 when Victoria abolished provocation, the then ­attorney-general Rob Hulls said such a defence “condones male aggression towards women and is often relied upon by men who kill partners or ex-partners out of jealousy or anger”.

Others argue women who are long-term victims of domestic violence who do retaliate should have provocation available to them.

An adviser in the Attorney-General’s Department explained to a parliamentary committee the law around provocation was developed as a concept of male honour.

“Provocation was devised by the common law at a time in which life was cheap, men were routinely armed, quarrels were common and lethal,” the committee heard.

“The charge of murder was reduced to manslaughter because the courts thought that in certain circumstances men who killed were acting in accordance with the honourable course of conduct as it was seen to be at that time.”

But the adviser was of the view that what was now regarded as the “honourable course of action” was different and that juries representing the standards of the community apply common sense.

“Remember that as you fiddle with the law, if you do, about provocation, what you’re doing is shifting power from the jury to the judge,” the adviser said.

The Law Society of SA and the SA Bar Association have both expressed views that legislating the abolition of “gay panic” is unnecessary.

But Law Society of SA president David Caruso said the association was open to reforms that broaden its availability in cases of family violence.

The Premier made the point on radio recently that any reforms had to ensure that provocation did not become unavailable for people who “quite fairly” want to use it, referring to a case where a woman killed her husband with an axe after a long period of sexual abuse of her children.

Adelaide Law School lecturer Kellie Toole said provocation as a whole needs to be abolished and that SA really had to consider why it should be the only jurisdiction with “unadulterated” provocation laws. She said women who have experienced domestic violence tend to use self-defence or excessive self-defence and that provocation was predominantly used by men.

“To abolish it (provocation) would be ... tough on law and a great domestic violence initiative,” she said.

In past judgments, Chief Justice Chris Kourakis has clearly expressed a view that there “do not appear to be any sound policy reasons” for provocation to partially excuse murder.

“There do not appear to be any sound policy reasons to treat the sudden discovery of infidelity, the shock of a homosexual advance or other similar personal affronts as a sufficient basis to partially excuse what would otherwise be murder.”

Director of Public Prosecutions Adam Kimber SC told a parliamentary committee there were “very good arguments for getting rid of provocation”.

“I think it is anachronistic in many respects, and I think its application is very difficult because it gets left often in circumstances where the killing is not premeditated but it has been motivated by an event or an act or comment of the accused,” he said.

“It often gets left in circumstances, in my opinion, where what you’re really talking about is that it’s just a motive for the killing that should be taken into account in sentencing.

“However, I accept as well that there are arguments back the other way; that sometimes in the criminal law you need to hold an alternative offence that is lesser back for that unique case for that person who truly did have a sudden and temporary loss of self-control.”