Uncertainty over whether provocation caused by an unwanted homosexual advance will form the basis of a partial defence to murder may soon be resolved with the Sunshine Coast Daily reporting on 7 June 2012 that the Queensland Attorney-General, the Hon Jarrod Bleijie MP, had asked the Department of Justice and Attorney-General to brief him on the issue. The Attorney-General was quoted as saying ‘the LNP supports, in principle, the concept that persons should not be able to rely on [provocation] simply because of a minor touching incident or unwanted sexual advance’.
Just prior to the 2011 State election campaign, the then Queensland Attorney-General in the Bligh Labor Government, the Hon Paul Lucas MP, announced a proposal to amend the partial defence of provocation contained in s 304 of the Queensland Criminal Code to ensure that it could not be used where the defendant has received an unwanted sexual advance from the deceased, unless there were exceptional circumstances.
Recent Developments Regarding Partial Defence of Provocation: Non-Violent Sexual Advances
Section 304 provides a partial defence to murder if the accused can prove that he or she killed the deceased in the heat of passion caused by sudden provocation. If provocation is established, the accused is liable to a manslaughter conviction (attracting maximum life imprisonment at the court’s discretion as opposed to mandatory life imprisonment for murder).
In 2011, the former Government tightened s 304 based on Queensland Law Reform Commission (QLRC) report recommendations (paras 21.79, 21.88 & 21.163) that, other than in circumstances of an extreme and exceptional character, the partial defence of provocation cannot be based on words alone or on anything the deceased has done to end or change the relationship between the deceased and the defendant. Further amendment was made to place the onus of proof upon a defendant seeking to rely on provocation as a partial defence.
The QLRC Report No 64 (para 21.97) recommended against excluding non-violent sexual advances as a basis for relying on provocation, preferring the issue to be left to the determination of the trial judge. The QLRC’s view was based on (pp 481-483):
· difficulties in defining ‘a non-violent sexual advance’ (e.g. would a gentle touch fall within the definition?);
· the need for consideration of all the circumstances surrounding the advance; and
· the possibility that a battered woman who knows that a non-violent sexual advance from her abuser is a mere precursor to abuse and kills her abuser may be unable to rely on the partial defence.
More recently, concerns were raised about provocation being pleaded where the deceased was killed in response to a homosexual advance to the defendant. In particular, in September 2011, two e-petitions containing a total of 4,662 signatures were tabled in Parliament requesting that it legislate to prevent reliance on provocation in such a situation. The then Government’s response noted that the 2011 amendments excluding mere words as founding provocation would apply to a non-violent sexual advance where there is no physical contact or other conduct. Further, it was stated that amendments placing the onus of proof upon a defendant seeking to rely on provocation will help to prevent unmeritorious claims being raised. The response said that no further amendments to s 304 were then under consideration.
On 9 November 2011, in light of prevailing concerns regarding the treatment of homosexual advances in murder cases, the former Attorney-General announced the establishment of an expert committee to examine whether changes were needed to the provocation partial defence and to ensure any changes would not have unintended consequences.
The Committee, chaired by retired Court of Appeal Justice John Jerrard QC, considered sentencing remarks in 110 recent manslaughter cases. The Committee found that defendants did not frequently or successfully plead non-violent homosexual advances as a defence based on provocation, with only one unequivocal example of such occurring. Legislation in the Australian Capital Territory (Crimes Act 1900, s 13(3)) and the Northern Territory (Criminal Code, s 158(5)) to restrict reliance on a non-violent sexual advance was noted, including the difficulty with the concept of a ‘non-violent sexual advance’. Provocation as a defence has been abolished in Tasmania , Victoria and Western Australia
The Committee was evenly divided about amending s 304. In the Report to the Attorney-General, the Committee Chair said (p 9) that he supported amending s 304 so that the partial defence does not apply, other than in circumstances of an exceptional character, ‘if the sudden provocation is based on an unwanted sexual advance towards the defendant or other minor touching’. In reaching that view, the Chair said that he was keeping in mind the equal division of opinion of the Committee, the concern by some Committee members/stakeholders about the possibility of homophobic or unsympathetic juries and the goal of having a Criminal Code free of any possible condoning of violence against the homosexual community.
On 25 January 2012, Mr Lucas MP said that the then Government proposed to amend the law ‘to ensure the intent of the partial defence provisions [is] clear’ in line with the above Committee recommendation. Before legislation to effect these amendments was introduced, the March 2012 State election was announced, the outcome of which was the election of a new LNP Government.
In developments in other states, on 14 June 2012, the New South Wales Upper House supported a motion by Opposition member, the Hon Helen Westwood MLC, to establish a select committee to examine the partial defence of provocation in New South Wales
Key Documents
· Hon P Lucas MP, former Attorney-General, Minister for Local Government and Special Minister of State, Ministerial Media Statements:
· Provocation defence under examination, 9 November 2011
· Gay Provocation Defence Under Review, 10 January 2012
· State Government to change ‘gay panic’ defence, 25 January 2012
· Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64, September 2008
· The ‘Gay Panic’ Partial Defence to Murder, The Law Report ABC Radio National, 24 January 2012
· LNP eyes gay panic law reform, Sunshine Coast Daily, 7 June 2012
· Homosexual advance can only provoke murder in an uncivil society, Courier Mail, 25 June 2012
Hon Helen Westwood MLC, ‘Select Committee on the Defence of Provocation’, Motion, 14 June 2012
Nicolee Dixon
General Distribution Research Team, Research and Information Service
