10 Apr ‘Gay Panic Defence’ – An addition to the Doctrine of Provocation.
There have been moves recently to abolish what is often referred to as the ‘gay panic defence’ to murder, with the Advertiser reporting on 9 April 2019 that the Attorney-General will introduce legislation by the end of the year.
The gay panic defence is said to reduce what would otherwise be murder to manslaughter when one person kills another as a result of losing self-control as a result of the deceased’s homosexual advance(s) to the killer.
It is, however, a lot more complex in practice.
The ‘gay panic defence’ is not actually a defence. It is the application the partial defence of provocation. However, provocation itself is not actually a defence either; but is an attack on the element of malice in intention to kill or inflict really serious injury, which the prosecution must prove in order to prove a charge of murder.
Because a Defendant seeking to rely on provocation must establish the evidentiary foundation for it, it is referred to as a partial defence.
The High Court in Masciantonio v The Queen held that the partial defence of provocation will reduce what otherwise would be murder to manslaughter if:
- The deceased conduct towards the assailant is such that the assailant was so enraged that he (or she) could not control his actions. (The ‘subjective limb’); and
- A reasonable person in the position of the assailant could have lost control in the same circumstances (The ‘objective’ limb);
The Defendant seeking to rely on this partial defence has what is referred to as an evidentiary onus. That is, the Defendant must put before the court evidence to suggest that it is a possibility that the defence is available. If that occurs, then the Prosecution must rebut the defence beyond a reasonable doubt. This can be done by rebutting either of the above limbs.
If the prosecution proves beyond a reasonable doubt that either of the above limbs is not the case, then the jury would find the Defendant guilty of murder. If not, then the Defendant is not guilty of murder but guilty of manslaughter.
Provocation has played an important role in the common law to distinguish between those who intend to kill another unlawfully and those who kill unlawfully as a result of a temporary loss of self-control.
CAN A HOMOSEXUAL ADVANCE ENLIVEN PROVOCATION?
Historically a homosexual advance has been seen as sufficient “provocation” that the jury was required to consider the issue of provocation. Whether that is still the case is highly doubtful.
The High Court considered a similar issue in the case of Lindsay v The Queen, where it said in those particular circumstances the issue of provocation should have been left to the jury.
Lindsay, however, appears not to be decided on the basis on a singular homosexual advance; but on the basis that the homosexual advance was repeated, towards a married man, in his own home, where his wife and children were present, and on the basis of an exchange for money. The Defendant’s cultural background was also considered relevant to the decision of the Court.
The High Court in Lindsay only held that the facts were sufficient that the issue of provocation should have been left for the jury to decide. It did not address the issue of whether a simple homosexual advance would be sufficient; nor did it decide if Mr Lindsay had been provoked to the required standard.
A retrial was ordered and Mr Lindsay was convicted at the retrial.
The partial defence is provocation is a doctrine of common law. In order to abolish the ‘gay panic defence’ the legislature will have to pass laws as to when the partial defence of provocation is and is not available.
The legislature cannot simply pass a law saying the ‘gay panic defence’ is no longer available. Any legislation redefining the partial defence of provocation could have an unintended consequence of depriving certain persons, such as victims of domestic abuse, of the partial defence of provocation.