The homosexual advance defence in Australia: An examination of sentencing practices and provocation law reform

Abstract

In May 2015, the judgment of the High Court of Australia in Lindsay v The Queen reignited debate surrounding the use of the partial defence of provocation in cases involving a non-violent homosexual advance. Lindsay re-established the legal possibility that a man provoked enough to lose self-control and commit lethal violence in response to a non-violent homosexual advance could be convicted of manslaughter by reason of provocation rather than murder. The judgment arrived in the midst of two decades of national law reform activity, whereby all Australian jurisdictions have either introduced or proposed reform to abolish or restrict the application of the controversial partial defence of provocation. In doing so, cases involving a homosexual advance defence are increasingly shifting to the realm of sentencing. This article offers a timely analysis of the sentencing of homosexual advance defence cases in New South Wales and Queensland. In doing so, it examines the judicial treatment of a defendant’s claim of a ‘special sensitivity’ to a homosexual advance, problems arising from the private nature of an alleged homosexual advance and the treatment of intoxication in sentencing. It reveals that reform of legal categories alone may not be sufficient in ensuring a just legal response to homicides incited by alleged homosexual advances.

Keywords

Homicide law homosexual advance defence law reform partial defence of provocation sentencing

On 6 May 2015, the High Court of Australia’s judgment in Lindsay v The Queen reignited debate surrounding the use of the partial defence of provocation in cases involving a non-violent homosexual advance (Lindsay v The Queen [2015] HCA 16, hereinafter Lindsay HCA). In Lindsay, the victim, Andrew Negre, allegedly offered to pay Michael Lindsay for sex (Lindsay HCA, at 10) to which Lindsay responded by punching and kicking the deceased while he was on the floor, then repeatedly stabbing him. Following a contested trial in the South Australian (SA) Supreme Court, the jury found Lindsay guilty of murder, despite being directed by the judge to consider provocation on the basis of the homosexual advance made towards the accused (Lindsay HCA, at 10). On appeal, Justice Peak dismissed Lindsay’s appeal, stating the need to recognise contemporary attitudes expected in 21st-century Australia and ruling that the trial judge ‘was incorrect to leave the partial defence of provocation to the jury in this case’ (R v Lindsay [2014] SASCFC 56, at 236). While for many in the SA legal community, the Court of Appeal decision appeared to remove the homosexual advance defence (hereinafter HAD) from the confines of the provocation defence, the 2015 High Court judgment overturned the decision of the Appeal Court and in doing so re-established the legal possibility that a man provoked enough to lose self-control and commit lethal violence in response to a non-violent homosexual advance could be convicted of manslaughter by reason of provocation rather than murder. In doing so, it reaffirms the need to reconsider the law’s treatment of the homosexual advance defence.

The HAD arises where a defendant raises the partial defence of provocation by arguing a loss of self-control when confronted by a homosexual advance. If successfully raised, the partial defence of provocation reduces a charge of murder to manslaughter in cases where it is found that a defendant lost their self-control in response to the alleged provocative conduct. While the legislation of each Australian state and territory jurisdiction varies, generally in order to claim provocation, three requirements must be established:

There must be evidence of something constituting provocation

The accused must have lost self-control due to the provoking incident

The provoking incident must be sufficient enough to cause an ordinary person to lose self-control and form an intent to kill or cause grievous bodily harm. (Victorian Law Reform Commission, 2004, p. 23)

The latter requirement involves the application of the ordinary person test, which ‘assesses the gravity of the provocation with reference to relevant characteristics of the offender (which may include age, ethnicity, past history and other factors)’ (Fitz-Gibbon, 2014, pp. 8–9, see also VLRC, 2004). The ordinary person test has long been a contested area of law (Mack, 2013; Morgan, 1997). In the context of HAD, the acceptance that an ‘ordinary person’ would kill in response to a homosexual proposition ascribes homophobia to the ‘representative’ ordinary person (Mack, 2013, p. 178).

The Lindsay judgment arrived in the midst of two decades of national law reform activity, whereby all Australian jurisdictions have either introduced or proposed reform to abolish or restrict the application of the partial defence of provocation. As part of the plethora of reform, governments and law reform bodies have sought to directly remedy this unsatisfactory element of homicide law by excluding HAD from reducing what would otherwise be murder to manslaughter. In doing so, cases involving an allegation of a ‘provoking’ homosexual advance are increasingly shifting to the realm of sentencing and discretion of the judiciary.

It is within this context that this article offers a timely analysis of the sentencing of HAD cases in New South Wales (NSW) and Queensland. Drawing from the findings of an analysis into fifteen years of relevant sentencing judgments, the article examines how claims of a homosexual advance are dealt with on sentence and to what extent problems around provocation emerge at sentencing. Part one article provides contextual background by examining the operation of the HAD across Australia. Part two provides an overview of the research design. The second half of the article presents the findings of a detailed case analysis by examining the quality of a defendant’s claim of a ‘special sensitivity’ to a homosexual advance (part three), problems arising from the private nature of an alleged homosexual advance (part four) and the treatment of intoxication in sentencing (part five).

In examining the law’s response to homosexual advance-related homicides, this article builds on a body of legal scholarship that has examined the role of law in protecting male honour and affirming hegemonic masculinity (Howe, 1997; Tomsen, 2002). The operation of the HAD across Australia has largely centred around the notion of male honour and masculinity under threat by a homosexual advance. For the most part, this generally materialises in heterosexual cases where a woman is alleged to have said or done something to threaten a man’s masculine honour, power and/or control (Fitz-Gibbon, 2014; Tyson, 2013). By labelling both HAD and cases of violence against women as ‘provocation’ manslaughter, the legal system arguably undermines the specific harms associated with each context of lethal violence.

The homosexual advance defence in Australia

Historically, the partial defence of provocation was introduced when the death penalty was imposed for murder and where parliament prescribed that the actions of a person who killed in response to a threat to their male ‘honour’ should be partially excused (Fitz-Gibbon, 2014). The provocation defence was borne in ‘an era in which the law tended to perpetuate white, male, heterosexual, middle class, Christian values’ (New Zealand Law Commission, 2007, p. 91). More recently, provocation has come to be associated with three contexts of lethal violence: men who kill their intimate partners in the context of relationship separation or alleged infidelity, women who kill abusive male partners, and persons who kill in response to a non-violent homosexual advance (Morgan, 2002). The latter – the focus of this article – refers to cases where the provocative conduct that a defendant responds to with lethal violence is an alleged homosexual advance, which ‘pushed [him] to the limits in being physically humiliated by homosexual desire’ (Tomsen and Crofts, 2012, p. 426). The successful use of the provocation defence in this context has been criticised for providing a mechanism for victim blaming, being out of step with current community values and attitudes and, more broadly, promoting a culture of legal discrimination towards the LGBTIQ community (see, inter alia, Blore, 2012). Summarising criticisms of HAD, Tomsen and Crofts (2012, p. 426) note that trials in which the HAD is raised are ‘characterised by an additional negative depiction of gay/homosexual victims as threatening, predatory or even as sexual hypermasculine subjects’ (see also Golder, 2004; Howe, 1997).

The high court’s decision in green

Debate surrounding the acceptance of an HAD within the confines of the partial defence of provocation amplified in 1997 following the high-profile Green case (Green v The Queen [1997] 191 CLR 334, hereinafter Green). In May 1993, Malcolm Green killed his friend, Donald Gillies, by punching him 35 times and stabbing him multiple times with a pair of scissors. It was alleged that while Green was staying at the victim’s house, the victim had walked into Green’s room naked and made a sexual advance toward him, which Green responded to with lethal violence. Following the killing, Green commented: ‘Yeah, I killed him, but he did worse to me … He tried to root me’ (cited in Donaldson, 2011). While Green conceded that the sexual advance was ‘gentle’ in nature, the defence argued that it nonetheless triggered a ‘special sensitivity’ and latent rage for his own father, whom he had recently discovered had allegedly sexually abused his sisters during their childhood (Green, at 10). In considering this argument, the trial judge ruled that the alleged abuse of Green’s sisters had no relevance to the case and refused to leave provocation as a partial defence to the jury for consideration.

An appeal to the NSW Court of Appeal was rejected two-to-one on the basis that while the history of abuse evidence should have been left to the jury for consideration, it would not have altered the verdict outcome of murder. On appeal to the High Court of Australia in 1997, however, the majority found that Green had a ‘special sensitivity’ towards the sexual advance leading to his loss of self-control. The High Court ruled that the trial judge had erred in ruling that the history of sexual abuse was irrelevant to the issue of provocation. The majority ruled that Green’s conviction for murder be quashed and a new trial ordered. On retrial, Green was found guilty of manslaughter on the basis of provocation.

While the majority judgment affirmed the potential relevance of homosexual advance evidence in trials where provocation is raised, a dissenting judgment by the Honourable Justice Kirby drew significant attention to the problematic nature of the HAD. The dissent stated:

Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands. (Green, per Kirby J at 415)

Kirby stated that the jury’s original verdict of murder was ‘not only proper’ but ‘inevitable’, and that the law had been ‘correctly applied’ in the first trial. Kirby’s dissent highlights why the subsequent manslaughter verdict in Green is so problematic, in that it arguably inscribes the ordinary man as a violent homophobe and sets a standard for future homicide cases involving a homosexual advance (see also Howe, 1997).

Homicide law reform and the HAD across Australia

In response to public outcry following the High Court’s decision in Green, the NSW Office of the Attorney General established a Working Party (1998) to review the HAD. Finding that the verdicts in HAD provocation cases were ‘profoundly troubling’ to members of the community (p. 3), the Working Party recommended that a ‘court of morals direction’ be introduced to guide jurors to reach their decisions without prejudice in circumstances where the ‘unusual sexuality of the victim has been placed before the jury’. It also recommended that legislative reform be implemented to exclude the partial defence of provocation from applying to cases where a person is killed in response to a homosexual advance. Despite political and community attention on the issue at the time, the Working Party recommendations were never implemented. As such, it is perhaps unsurprising that the HAD remerged as a key issue during the, 2013 NSW Parliamentary Inquiry into the Partial Defence of Provocation (hereinafter ‘NSW Inquiry’).

The NSW Inquiry was established in 2012 with the mandate to review the operation and potential reform of the partial defence of provocation, largely in response to community outrage and political concern following the trial of Chamanjot Singh for the manslaughter of his wife (for details on the Singh case, see Fitz-Gibbon, 2017). Reporting in 2013 (Legislative Council, 2013, p. xii), the Inquiry recommended the provocation defence be heavily restricted to, among other things, exclude cases where lethal violence was committed in response to a non-violent sexual advance by the victim. In response to that Inquiry, in 2014, the government introduced legislation to prescribe a partial defence of ‘extreme’ provocation, which excludes non-violent homosexual advances from giving rise to a partial defence to murder under Section 23(3) of the Crimes Amendment (Provocation) Act, 2014 (NSW).

The NSW ‘exclusion’ model of reform is one of two main models for reforming the law of provocation that has emerged nationally in the two decades since Green. The partial defence has been abolished and any consideration of provocative conduct on the part of the victim transferred to sentencing in Tasmania (Criminal Code Amendment (Abolition of Defence of Provocation) Act, 2003 (Tas)), Victoria (Crimes (Homicide) Act, 2005 (Vic)) and Western Australia (Criminal Law Amendment (Homicide) Act, 2008 (WA)). In state jurisdictions where provocation as a partial defence is retained, the restriction model of reform (as seen in NSW) has been favoured, albeit with variations in the specifics of the legislation. Specifically, reforms introduced in the Northern Territory and Australian Capital Territory have restricted the defence to exclude its use in sexual advance cases (see Criminal Code Act (NT) s 158(5); Crimes Act, 1900 (ACT) s 13(3)). In these two jurisdictions, the addendums explicitly exclude the availability of provocation where the ‘provoking’ incident was only a non-violent sexual advance to the accused, attempting to make the distinction between a sexual advance and sexual assault.

Most recently, in March 2017, the Queensland state government passed the Criminal Law Amendment Bill, 2016 (Qld), which among other reforms, amends s 304 of the Criminal Code (Qld) to exclude an ‘unwanted sexual advance’ from constituting provocative conduct other than in ‘exceptional circumstances’ (cited in Plater, Line, & Fitz-Gibbon, 2017, p. 16). This followed a decade of law reform activity in Queensland including in 2007 the release of the Department of Justice and the Attorney General’s (2007) Discussion Paper, followed soon after by the Queensland Law Reform Commission’s (QLRC, 2008) report on the excuse of accident and defence of provocation. Both reports informed the introduction in 2011 of legislative amendments, which excluded words alone from being sufficient to claim provocation except in ‘circumstances of the most extreme and exceptional character’ (Criminal Code and Other Legislation Amendment Act, 2011 (Qld) s 5; Criminal Code, 1899 (Qld) s 304(7) s 304(2)).

However, less than a year after the implementation of the 2011 amendments, two high profile HAD cases (see R v Richard John Meerdink and Jason Andrew Pearce [2010] QSC 158, hereinafter Meerdink and Pearce; R v Peterson and Smith [2011] QSC (10/0013), hereinafter Peterson and Smith), reignited media attention and parliamentary lobbying surrounding inadequate legal responses to cases where a homosexual advance was alleged (Blore, 2012; Jerrard, 2012). The recent amendment, which is yet to come into force, aligns Queensland criminal law with the other five Australian states and territories that either through abolition or restriction of the provocation defence expressly exclude an HAD from reducing what would otherwise be murder to manslaughter.

The anomaly remaining is South Australia (SA), which is presently the only state in Australia to retain the common-law model of provocation (Plater et al., 2017). While the law of provocation is currently under review by the SA Law Reform Institute (SALRI), to date no reforms have been implemented to restrict its application in HAD cases despite a proposal for reform led by MP Tammy Franks (2013) and a 2017 recommendation by the SALRI that HAD be excluded from the remit of provocation to prevent discrimination in law (Plater et al., 2017). In the wake of the High Court’s decision in Lindsay, there is increasing support from legal scholars and members of parliament to, at the very least, restrict the application of the provocation defence to prevent its use in HAD cases (see, for example, Jones, 2017).

This overview of national law reform activity reveals that while legislators have attempted to address concerns surrounding HAD through reform of legal categories, to date, very little attention has focused on sentencing. As such, an analysis of the treatment of the HAD in sentencing is now increasingly important as each state and territory has moved – with the exception of SA – to transfer the consideration of this form of provocation to the realm of judicial decision making. As has been noted in the sentencing of intimate-partner homicide cases post-abolition of provocation (Horder & Fitz-Gibbon, 2015; Hunter & Tyson, 2017; Stewart & Freiberg, 2009), without a clear framework for its consideration, there is a risk that the same victim-blaming and responsibility-transferring narratives will be replicated in sentencing. Recognising the importance of this argument, this article addresses the gap in current knowledge by examining how allegations of a homosexual advance have, to date, been dealt with on sentence in NSW and Queensland.

Research design

This research examined how homosexual advance defences are currently dealt with on sentence for homicide offences. To do so, and in building on the earlier work of Tomsen (2002), an in-depth analysis of HAD case law from NSW and Queensland was undertaken for a fifteen-year period from 1 January 2000 to 31 December 2014. Utilising the Australian Legal Information Institute (AustLii) database, all sentencing judgments for cases finalised in the NSW and Queensland Supreme Courts where an HAD was raised at trial and/or in sentencing were identified for the period under study. Key search terms ‘homosexual advance’ and ‘provocation’ were used to identify homicide cases that involved an allegation of a homosexual advance where the defence of provocation had been raised at trial and/or in sentencing. Both successful and unsuccessful provocation defence cases involving a homosexual advance were included in this study, capturing cases that resulted in murder and manslaughter convictions following contested trials and guilty pleas.

The cases analysis was confined to NSW and Queensland due to the availability of relevant judgments as well as recent amendments in NSW that specifically exclude non-violent sexual advances from provocation and transfer its consideration in sentencing, and in Queensland because of the ongoing debate surrounding the availability of HAD in this jurisdiction. This allowed for a comparative analysis in two jurisdictions where issues surrounding legal responses to HAD cases have animated policy debate and law reform. While the specific relevant criminal laws of each state differ slightly this study was focused upon an analysis of remarks on sentence as opposed to the impact of specific legislation in practice so such differences were not prohibitive. While the HAD is also currently available within the provocation defence in SA, this jurisdiction was excluded due to the lack of successful applicable cases for the period under study. To supplement the AustLii database search, a media search was also conducted to identify Queensland cases inaccessible through AustLii but where an HAD had been raised at trial and/or on sentencing. For these cases, the sentencing judgments were retrieved through the Queensland Supreme Court library database.

This multi-faceted search identified eight relevant sentencing judgments for homicide cases raising the issue of a homosexual advance. The cases (detailed in Table 1) include two resulting in a conviction of murder but where an allegation of a homosexual advance was made, four cases resulting in a manslaughter conviction on the basis of provocation and a further two cases where a manslaughter conviction was recorded on the basis of another partial defence to murder but where HAD was raised at trial and/or on sentence.

Table 1.

NSW and Queensland homicide cases involving an allegation of a homosexual advance (1 January 2000–31 December 2014).

Defendant surname (year of sentence)	Jurisdiction	Offence	Maximum sentence imposed	Minimum non-parole period
Hodge (2000)	NSW	Murder	15 years	7 years
Johnson (2001)	NSW	Manslaughter	10 years	7 years, 6 months
Marlow (2003)	NSW	Manslaughter	9 years	6 years, 9 months
Colb (2006)	NSW	Murder	18 years	14 years
Mitchell (2008)	NSW	Manslaughter	8 years, 3 months	4 years, 6 months
CR (2008)	NSW	Manslaughter	7 years	3 years, 6 months
Meerdink and Pearce (2010)	QLD	Manslaughter	Meerdink: 10 yearsPearce: 9 years	Meerdink: 8 yearsPearce: 4 years
Peterson and Smith (2011)	QLD	Peterson: ManslaughterSmith: Accessory after he fact to manslaughter	Peterson: 10 yearsSmith: 2 years	Peterson: 8 yearsSmith: 2 years

While the sample of cases identified was small, the methodology allowed the details of each case and the judicial discourses mobilised at sentencing to be analysed in detail. This method of qualitative case analysis has been utilised in criminological research to gain insights into homicide characteristics, legal responses to lethal violence and sentencing narratives (see, inter alia, Fitz-Gibbon, 2012; Hunter & Tyson, 2017; Sheehy, 2014). In this research, case-study analysis was used to identify and examine common themes which emerged in the sentencing of HAD cases in order to determine how allegations of the allegedly provocative homosexual advance was constructed and responded to at sentencing. A thematic analysis of each of the judgments was used to critically examine how claims of an HAD were constructed in sentencing and what themes emerged as relevant, influential and/or mitigating in the sentencing of each case. Thematic analysis is a common data analysis method used in qualitative criminology (Finch & Fafinski, 2012) to identify patterns across a documentary dataset. This study adopted an inductive approach to thematic analysis (Braun & Clarke, 2008), through which three common themes emerged, each presented and examined in detail in the following analysis sections: (1) the presence and relevance of a defendant’s claim of a ‘special sensitivity’ to a homosexual advance, (2) the private nature of an alleged homosexual advance and (3) the judicial treatment of intoxication at sentencing.

‘Special sensitivity’ as a relevant factor in sentencing

Recognising the significance of Green, this research examined how the issue of a ‘special sensitivity’ to homosexual advances has been dealt with on sentence in recent NSW and Queensland case law. A special sensitivity is raised in cases where it is alleged that the victim perpetrated past sexual assault(s), or where the victim had no association to the previous abuse, but their alleged homosexual advance triggered trauma stemming from past abuse. While there are degrees to how it is assessed depending on the jurisdiction, in general, the gravity of the provocative conduct is assessed through the ordinary person test with consideration given to relevant offender characteristics, including consideration of past abuse. To date, there has been minimal analysis in criminological scholarship as to the treatment of ‘special sensitivity’ as a relevant factor in sentence.

Of the cases analysed, in six cases raised the issue of a previous allegation of sexual assault during childhood was raised. Four defendants claimed that the victim had previously abused or attempted to abuse them,¹ and two defendants claimed to have been molested by someone other than the deceased.² CR and Hodge were the only cases where no ‘special sensitivity’ was raised by the defence.³ In cases where a special sensitivity was raised, and where it contributes to the successful raising of a partial defence of provocation, prior research reveals a concern as to the conflation of the victim’s alleged homosexuality with the paedophilia defendants encountered as children. For example, in Meerdink and Pearce, the defendant [Pearce] recounted that his victim ‘started all this poofter shit’, justifying his actions by claiming he was molested as a child and that he ‘snapped’ at the time of the homicide (cited in Blore, 2012, p. 44). In Peterson and Smith, a similar allegation was made by the defendant [Peterson] who claimed that the alleged homosexual advance made by the victim triggered trauma of his childhood molestation, which Blore (2012, p. 52) clarifies as exhibiting ‘homosexual desire, not paedophilic desire’. To permit the successful use of provocation in these cases, and thus a reduction in the legally determined culpability of the offender, highlights the perception that ‘fear, revulsion or hostility’ are justifiable responses to ‘homosexual conduct’ (Berman & Robinson, 2010, p. 203). Such a message is highly problematic and when promulgated by the courts has negative ramifications for the LGBTIQ community.

Building on the arguments raised by Blore and others, a thematic analysis of sentencing judgments where a special sensitivity was raised by the defence revealed that where legitimised at sentencing, these claims can allow homosexuality to be perceived as predatory and likened to paedophilia. This theme of predatory victimisation and paedophilia was evident in several cases analysed, and emerged firstly in the defendant’s account of the events leading up to the homicide, then recounted during the sentencing process. In these sentencing judgments, judges referred to the deceased’s allegedly provocative actions as ‘abuse’ (Meerdink and Pearce, per Applegarth J at 76), and as ‘somewhat predatory conduct’ (Mitchell, per Howie J at 20). Labelling the victim’s conduct with such descriptors arguably serves to reduce the assumed responsibility of the offender, while partially transferring responsibility for the lethal violence onto the victim. This is particularly evident in cases where there is, as Blore refers to it (2012, p. 247), the ‘erroneous conflation of paedophilia with homosexuality’. For example, in Mitchell, the perpetrator alleged the victim was a paedophile ‘to his actual knowledge’ (per Howie J at 3) after he attacked the deceased with a hammer and set his premises on fire (per Howie J at 5–6). Mitchell claimed the deceased attempted an act of indecency toward him when he was 16 years old and never attempted it again until the night of his death. Mitchell told two psychiatrists a varied account of events and gave evidence in court that he awoke to find the deceased fellating him (Mitchell, per Howie J at 8). In His Honour’s sentencing remarks, Howie J noted that the assault was a result of provocation commenting that the victim’s actions could be interpreted as ‘somewhat predatory conduct’ (Mitchell, per Howie J at 20).

In contrast, however, there were also cases within the period studied where judges actively pushed back against the transfer of responsibility from the offender to the victim based on an HAD, noting that regardless of the victim’s conduct in the period immediately prior to their death or, even more importantly, their sexual orientation, they were not responsible for the lethal violence perpetrated against them. For example, in Colb, prior to detailing the homosexual advance allegations made, the judge remarked:

It should be stated at the outset that these remarks are not intended to blame or attribute responsibility to the deceased for the prisoner’s actions. The deceased’s homosexuality provided no excuse, justification or warrant for what was inflicted upon him. (Colb, per Latham J at 6)

Similar judicial commentary is evident in Johnson, where on appeal the defendant claimed the trial judge erred by giving insufficient weight to prior sexual abuse. The appeal judge noted that if the victim had engaged in sexual abuse it was ‘extremely reprehensible’, but that it could not be ‘regarded as being decisive in any way as mitigatory of the prisoner’s culpability for his death’ (Johnson, per Bell J at 26). Likewise, in Peterson and Smith, at sentencing the judge pushed back against the construction of a homosexual advance as constituting provocative conduct, commenting comparably to Justice Kirby in Green that:

There is, of course, nothing wrong with someone inviting or asking someone else to have sex with them, and if it is unwanted, then of course the person who is asked is perfectly entitled to, and you would expect, to decline, perhaps in very clear terms. That is not what happened here. (Peterson and Smith, per Atkinson J at 19)

Further, although reforms introduced in Queensland to eliminate the HAD were introduced subsequent to Peterson and Smith, on sentence Justice Atkinson noted that it was impossible to know whether the, 2011 amendments would have led to a different outcome in the case. Peterson and Smith were acquitted of murder and respectively convicted of manslaughter and accessory after the fact to manslaughter (Peterson and Smith, per Atkinson J at 6). The amendments provide that, among other things:

On a charge of murder, the onus is on the defendant to prove the defence of provocation: s 304(7)

The partial defence of provocation does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character: s 304(2). (Criminal Code and Other Legislation Amendment Act 2011 (Qld) s 304(2)(7))

Contemplating a similar question raised by Her Honour in Peterson and Smith, Crofts and Loughnan (2012) argue that s 304(2) does not altogether exclude sexual advances for cases where there is some alleged physical contact. It is arguable that these concerns linger despite the recently passed, 2011 amendments to the Criminal Code (Qld), which will continue to permit an unwanted sexual advance from giving rise to a partial defence in ‘circumstances of an exceptional character’. While it is appreciated that relevant case law will take time to emerge, it will be important to monitor the degree to which defence arguments pertaining to a defendant’s ‘special sensitivity’ to a homosexual advance are raised as constituting a circumstance of an exceptional character. There is a post-reform need to ensure that the reformed law of provocation does not continue to allow an avenue for the HAD to continue reducing what would otherwise be murder to manslaughter.

Judging the private nature of an alleged homosexual advance

In 1997, Jenny Morgan published a seminal article on the partial defence of provocation, ‘Provocation law and facts: Dead women tell no tales, tales are told about them’. This article examined in detail how ‘stories’ of provocation are constructed in law, highlighting the problematic ways in which allegations of provocative behaviour – made against a deceased victim who ‘can no longer tell the stories of their own lives’ – are accepted as truth within the realm of law (Morgan, 1997, p. 238). In the two decades since Morgan’s article, the inability to challenge a defendant’s account of a victim’s allegedly provocative behaviour in the period immediately prior to their deaths has attracted significant criticism and underpinned calls for the abolition of provocation as a partial defence to murder (see, inter alia, Fitz-Gibbon, 2014).

Mirroring these criticisms of the defence, which have been largely explored in relation to cases of intimate partner homicide, the case analysis revealed concerns surrounding the private nature of allegations of a homosexual advance. Of the eight cases analysed, five occurred in the private location of the victims’ home,⁴ while the remaining three cases transpired in a public location, albeit in a private setting (public toilet, churchyard and beside a car)⁵ where there were no impartial witnesses to the lethal violence. The private nature of homicides where an allegation of a provocative homosexual advance is raised in mitigation of the defendant’s actions emerged as an influential factor in sentencing discourse, with multiple judges referring to the difficulty of validating a defendant’s unopposed testimony given the lack of a living victim or impartial witness. As the judge in Johnson stated:

The only account as to the circumstances in which the deceased met his death was that given by the applicant in his evidence. (per Bell J at 12)

Reflecting on the difficulties raised in such cases, Berman (2011) argues that even where a sexual advance has occurred, the nature and extent of the advance and whether a real threat to the offender was posed remain untested and ‘one is left with a situation in which the defendant can manufacture testimonial evidence against a dead victim’.

The case analysis supports Tomsen’s (2002) earlier analysis of homicide cases raising the HAD as a basis for the partial defence of provocation from 1980 to 2000, which found that 24 out of 30 cases involved an allegation within a ‘private scenario’. Tomsen (2002, p. 30) argued it was possible for some allegations of a sexual advance to emerge in private scenarios because the only surviving witnesses are the accused or co-accused, with these claims being considered more plausible in the context of provocation than in circumstances of public stranger violence. Tomsen (2002) also noted, however, that in over half the cases there was a previous interaction between the victim and some other male who was allegedly subjected to a past sexual assault or advance by the victim or a previous occasion of one-to-one sexual interaction. Such history was utilised by the defence to support the allegation of a homosexual advance.

The difficulty of testing ‘the tales’ (Morgan, 1997), told in analysed cases, is further compounded by a history of dishonest behaviour on the part of the offender. Of the eight cases analysed, judicial reference was made to an official record of convictions for dishonesty related offences in two cases,⁶ while in a further three cases the trial or appeal judge expressly found the offender(s) was dishonest in an aspect of their case.⁷ This uneasy alignment of an offender’s history of dishonesty, coupled with the legal willingness to accept an offender’s allegations of the deceased’s provocative conduct, is evident in cases where the offender had a criminal history for dishonesty offences and provided a misleading or false version of events following the homicide. For example, in Mitchell, the offender had been previously convicted of ‘dishonesty and driving’ related offences, including aggravated assault with intent to rob (Mitchell, per Howie J at 10). Mitchell was convicted of manslaughter by reason of provocation after he woke from an intoxicated sleep and killed the victim with a hammer, inside the victim’s home. Raising an HAD, in one version of events Mitchell claimed when he woke the deceased was performing oral sex on him, while in another version he claimed that when he woke he was partly undressed and the deceased was present (Mitchell, per Howie J at 8). At sentencing – despite Mitchell’s record of dishonesty, the unreliability of his testimony and the inability for an independent witness to corroborate the version of events – the judge accepted that the offence occurred ‘as a result of provocation’ (Mitchell, per Howie J at 20).

Mitchell was not unique among the cases examined. Other instances emerged where dishonest testimony from the defendant was noted by the sentencing judge but where the defendant’s claim of a provocative homosexual advance being made against them was accepted as providing an explanation for the use of lethal violence. For example, in Colb, the judge stated that the defendant’s testimony was so unreliable that ‘no findings of fact ought to be based upon it’ (Colb, per Latham J at 26). However, in assessing the offender’s claim of provocation, the judge stated that she ‘had no doubt that the deceased did or said something which was interpreted by the prisoner as a “betrayal” [or] … a sexual advance’ (Colb, per Latham J at 39). As such, and while the offender was convicted of murder, mitigation of responsibility is evident in the judge’s assessment that the defendant’s actions were ‘possibly triggered by something said or done by the deceased’ (Colb, per Latham J at 4). Such decisions sit uneasily for critics of the provocation defence, who have long pointed to the court’s willingness to accept partial justifications for the use of lethal male violence against women and homosexual men. Documented histories of dishonesty add further concerns to the operation of a law which privileges the version of events advanced by a defendant in homicide cases where the private nature of lethal violence precludes the provision of any rebuttal.

Meerdink and Pearce was the only case in the sample examined where, despite being carried out in private, independent evidence was made available to the court through CCTV security camera footage – albeit absent of audio content (only visual) and thus limited in its use by the prosecution to counter the HAD claims raised. In that case, security footage was used to confirm that there was no physical touching by the victim. However, the lack of audio was relied on to raise the possibility of verbal abuse from the victim, which the defence argued had offended an ordinary person in Pearce’s circumstances. At sentencing, the judge found that the deceased did not sexually touch Pearce but that he was extremely drunk and likely said or did something foolish, which Pearce may have interpreted as a serious proposition (Meerdink and Pearce, per Applegarth J at 7). Among other things, the case illustrates the problematic acceptance of provocative conduct on the basis of words alone, reaffirming recent reform attempts to counter the defence’s application in precisely such scenarios.

The Meerdink and Pearce case occurred prior to the, 2011 Queensland reforms, which introduced restrictions to the application of the provocation defence, stating:

Provocation does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character. (Criminal Code and Other Legislation Amendment Act 2011 (Qld) s 304(2))

While it could be argued that post-2011, the HAD raised in Meerdink and Pearce would not apply given the reforms introduced, the inclusion of an ‘extreme and exceptional character’ clause in the legislation retains the possibility that in this case Pearce’s ‘special sensitivity’ to homosexual advances (Meerdink and Pearce, per Applegarth J at 7), be it verbal or physical, may have permitted provocation. This possibility lends support to Berman’s (2011) argument that the amendments made in Queensland occurred from a domestic violence standpoint and had little to do with eliminating the HAD. It also underlines the previously noted importance of ongoing monitoring of the operation of the law in the wake of the most recent reforms.

The influence of intoxication in sentencing

The third key theme that emerged from the case analysis, albeit less significantly than the preceding two, was the influence of a defendant’s level of intoxication during the act of lethal violence. The analysis revealed that a consideration of intoxication in sentencing compounds issues surrounding location, a lack of independent testimony and an offender’s history of dishonesty. In six of the eight cases analysed, the remarks on sentence reference intoxication on the part of the offender,⁸ and in two cases intoxication on the part of the victim.⁹ In these cases, judicial references at sentencing to intoxication were made to contextualise the offender’s lethal response to the allegedly provocative homosexual advance.

For example, in Peterson and Smith, the judge cited alcohol as a main factor in the homicide, stating that Peterson would have been able to control his actions if it were ‘without that rage and without the effects of that intoxication’ (Peterson and Smith, per Atkinson J at 38). Similarly, in Hodge, the judge noted that the homicide ‘would not have been committed if the prisoner had not been affected by alcohol and/or drugs’ accompanied by the deceased making an approach to him (Hodge, per Dunford J at 17). While less directly linked, intoxication was also referred to in CR, where the judge stated that alcohol ‘was, I believe, a factor in the misjudgment he ultimately made later that evening’ (CR, per Kirby J at 8).

In contrast, however, in Meerdink and Pearce, the sentencing judge expressly noted the lack of relevance that intoxication bares. Citing the Queensland Chief Justice in R v Dwyer [2008] QCA 117, Justice Applegarth stated:

Intoxication resulting from the voluntary ingestion of alcohol and drugs cannot generally be advanced as a circumstance mitigating the penalty to be imposed for violent crime committed while the offender was in that condition. (at 2)

This comment was made in response to the defendant’s own assessment of the contributory role of alcohol, where Pearce stated, ‘You know if I wasn’t pissed I would not have lost my head. I blame myself. I was pissed’ (Meerdink & Pearce, per Applegarth J at 37). While not previously explored in the context of the HAD, the view taken in Meerdink & Pearce reflects a wider push in criminal law in recent years to legislate for voluntary (self-induced) intoxication not to be treated as mitigating – or indeed to be listed as an aggravated factor – in cases of alcohol-related violence (Quilter, McNamara, Seear, & Room, 2015).

Interestingly, in several of the cases analysed, an acceptance of the offender’s level of intoxication at the time of the homicide did not dilute the reliability of the alleged provocative conduct made against them. For example, in Hodge, the offender admitted that he could not remember events from that night due to intoxication, and while he was ultimately found guilty of murder, at sentencing the judge accepted Hodge’s evidence of a sexual advance based on words alone (Hodge, per Dunford J, at 11). Similarly, in Mitchell, the defendant’s testimony of a sexual advance was validated by the judge on sentence, despite the defendant’s intoxication at the time of the homicide (Mitchell, per Howie J at 8). While not suggesting that the presence or influence of alcohol should preclude a defendant’s statement in homicide cases, in the context of the aforementioned difficulties of testing and establishing the reliability of a defendant’s claim of a homosexual advance, the presence of alcohol further compounds issues arising in such cases.

Conclusion

While recently introduced and proposed reforms in NSW, Queensland and SA undoubtedly signal progress in removing the HAD from Australian criminal law, this article reveals that reform of legal categories alone may not be sufficient in ensuring a better legal response to homicides allegedly incited by a homosexual advance. By moving consideration of such allegations to sentencing, be it in sentencing for murder or manslaughter, this research documents the problems which have – and will likely continue – to arise in judicial assessments and responses to such lethal violence. The research finds that several of the problems that arise in the partial defence’s operation at trial – namely, the private nature of the homicide and the inability to adequately test a defendant’s claim of the provocative conduct made against them – will be merely shifted towards sentencing if judge’s accept such claims and in lieu of establishing a clear framework for the judicial consideration of claims of provocation on sentence.¹⁰

While governments have been hesitant to implement guidelines or a framework to support the transfer of provocation to sentencing, this analysis highlights the need for a more nuanced approach to sentencing in homicide cases that involve an allegation of a homosexual advance. The need for a clear approach is particularly important given the complexity of the sentencing exercise and the need for an allegation of a homosexual advance to be taken into account alongside a range of general sentencing principles, aggravating and mitigating factors. The work of Stewart and Freiberg (2009) provides a solid basis on which an approach to the sentencing of HAD cases could be introduced and, more recently, a proposed sentencing guideline scheme for the consideration of provocation in sentencing in NSW expressly establishes that allegations of a non-violent homosexual advance should not be permitted to mitigate responsibility in sentencing (see Fitz-Gibbon, 2017). The work of Stewart and Freiberg is particularly useful in that it emphasises the importance of incorporating an equality analysis into any consideration of provocation in sentencing. Building on the earlier work of the VLRC (2004), Stewart and Freiberg (2009, p. 50) argue that an equality approach:

can be of assistance in determining the values that should inform what types of conduct by the victim may give an offender a justifiable sense of being wronged, how serious that wrong is, and whether it should therefore appropriately reduce the offender’s culpability.

This approach would ensure that an equitable view is adopted at sentencing and that the sentencing process does not replicate the same problematic narratives that have been documented in trials where the HAD is raised as part of a provocation defence.

As nearly every Australian state and territory now considers HAD within the realm of sentencing, with the notable exception of SA, there is a need to be cognisant of the impact in sentencing. This article outlines the important process of ensuring transparency in the narratives and treatment of provocation claims relating to a homosexual advance that arise at this stage of the justice process. The importance of closing any loopholes in homicide law and associated sentencing practices to exclude the possibility of an HAD is essential when the impacts of the legal legitimisation of such claims are considered. The successful use of an HAD depicts homosexuals as predatory and the perpetrators as ‘regularly masculine’, as such defending their heterosexual identity as an ‘ordinary person’ (Tomsen & Crofts, 2012, p. 426). The continued acceptance of a ‘special sensitivity’ to homosexual advances likens it to illegal conduct such as paedophilia, instead of one displaying adult homosexual desire. While it is noted that there is a need in sentencing to acknowledge any prior alleged victimhood of the perpetrator (Blore, 2012), this must be done without excusing the use of lethal violence and engaging in victim blaming and discrimination.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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