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Review of the 'Homosexual Advance Defence'

Attorney General's Department New South Wales

August 1996

Contents

Members of the Working Party on the Review of the Homosexual Advance Defence

Mr Nazareno Bruni - Office of the Director of Public Prosecutions
Mr David Buchanan - Barrister
Supt. Gary Gilday - State Commander's Office, NSW Police Service
Mr Bruce Grant - Lesbian & Gay Anti-Violence Project
Ms Megan Latham - Criminal Law Review Division
Mr David McLachlan - Gay & Lesbian Rights Lobby
Mr Dirk Meure - Faculty of Law, University of NSW
Mr John Nicholson, SC - Public Defenders
Mr Patrick Power - Crown Prosecutors
Ms Donna Spears - Judicial Commission
Ms Prita Supomo - Criminal Law Review Division
Ms Sue Thompson - Police Gay/Lesbian Client Consultant, NSW Police Service
Mr Paul Van Reyk - Gay & Lesbian Rights Lobby

Executive Summary

The Working Party puts forward puts forward the following proposals as possible directions for future action:

  1. Legal Proposals

    1. That the following direction be forwarded for consideration for inclusion in the Judges' Bench Book to be given in murder trials where provocation is raised on the basis of an alleged homosexual advance by the victim (Refer paragraphs 63-65 of Review):

      [Following the standard direction on the 'ordinary person']:

      However, in determining whether an ordinary person in the accused's situation might act from passion, rather than judgment, I instruct you that a person would not act as the result of prejudice toward, or fear of, homosexuals or homosexuality. In this regard, the law does not treat a homosexual advance if you find one was made by the deceased as an act of provocation to any lesser or greater degree than if he had made a comparable sexual advance upon a woman.

    2. That the following direction be drawn to the attention of the judiciary as suitable for murder trials where the accused acted in response to an alleged homosexual advance by the victim:

      • As an explanation of the rationale for the "ordinary person in the position of the accused" requirement in provocation (Refer paragraphs 66-67 of the Review):

        This is required by the law to ensure that an accused person who is abnormally or exceptionally sensitive to behaviour which may be regarded as provocative is not permitted to escape full responsibility for causing the death of another person.

      • In relation to a jury's duty to reach its verdict without prejudice and on homosexuality and sexual orientation generally (Refer paragraphs 69-70 of Review):

        You may conclude that the deceased's behaviour and sexual orientation do not accord with those which you regard as morally acceptable. It is therefore important that you remember that this is a Court of Law and not a court of morals. Prejudice and emotion must have no place in a court of law. Everyone is equal before the law. So, on the question of sexuality, I direct you that a person's background is not of the slightest relevance. There should be no prejudice against the deceased or the accused on the basis of sexual orientation. You should decide the matters on the issues without prejudice and without empathy to the deceased or the accused.

  2. Educational Proposals

    1. That there be appropriate dissemination of information about cases involving the 'homosexual advance defence' amongst the judiciary, the police and the prosecution (refer paragraphs 79, 85 of Review).

    2. That the Crime Prevention Division in the Attorney General's Department develop a comprehensive community education strategy in consultation with representatives of relevant Government and non-government agencies (refer paragraphs 83-86 of Review).


A. Background and Terms of Reference for the Review on the homosexual Advance Defence

  1. The 'Homosexual Advance Defence' ("HAD") review arose out of a number of recent murder trials in which accused males have alleged that they acted in self-defence or under provocation in response to a sexual advance made by another male.

  2. In July 1995, the Attorney directed that a Working Party be established to review the operation of HAD in NSW. Represented on the Working Party are the Criminal Law Review Division, the Office of the Director of Public Prosecutions, Public Defenders, Crown Prosecutors, the Judicial Commission, the Criminal Bar, the Police Service, the Gay & Lesbian Rights Lobby, the Gay & Lesbian Anti-Violence Project and the Faculty of Law of the University of NSW.

  3. The Working Party's Terms of Reference are:

    1. To conduct a review of the 'homosexual advance defence'

    2. To examine court transcripts in order to document those cases where the 'homosexual advance defence' has been raised and to ascertain whether there is difficulty with the operation or application on the law.

    3. To identify community education strategies in order to address the issue raised by the defence.

  4. It is not the role of the Working Party to comment upon the directions of law given by judges or verdicts given by juries.

  5. Various source materials were considered by the Working Party:

    • Details of cases involving HAD were obtained from the Criminal Registry of the NSW Supreme Court, the Office of the DPP, the Judicial Commission and the Police.

    • Transcript of trial and sentence matters.

    • Through the Attorney, permission was sought from and granted by individual Supreme Court judges for the Working Party to obtain transcript of summings-up to juries.

    • The Working Party met with prosecuting counsel who had appeared in cases involving HAD.

  6. A paper on HAD was also presented by the Working Party's representative from the Law School of the University of NSW at the Australian Institute of Criminology Conference "Violence Against the Lesbian and Gay Community" held in Sydney in October 1995.


B. The 'Homosexual Advance Defence'

What is meant by the term 'Homosexual Advance Defence' ("HAD")?

  1. HAD is not itself a legally recognised defence. HAD is a term used by the Working Party to describe cases where an accused person alleges that s/he acted either in self-defence or under provocation in response to a homosexual advance made by another person.

  2. Another term which has been used is 'Homosexual Panic Defence'. This term originated in the United States and is based on the theory that a person with latent homosexual tendencies will have an excessive and uncontrollably violent response when confronted with a homosexual proposition. The theory is premised upon 'homosexual panic' as an insanity or diminished capacity defence. (1)

  3. The Working Party has adopted the term 'homosexual advance defence' for two main reasons. First, NSW cases where reference to a homosexual advance is made have raised self-defence and/or provocation as opposed to insanity or diminished responsibility. Second, the term 'homosexual panic defence' has negative and unjustified connotations in suggesting that 'panic' may be a legitimate response to homosexuality.

What are the concerns about the 'Homosexual Advance Defence'?

  1. Concern about HAD stems from the use of violence against gay men and lesbians generally. The Australian Institute of Criminology described the level of such violence in Australia as "disturbing" and has noted there is evidence to suggest that it is rising. (2) While much less is known about anti-gay/lesbian homicide, between 1990 and 1996 there were 26 such cases in NSW alone (constituting roughly 20% of stranger homicides). (3) In 16 of these cases, the offender was under 25 years of age at the time of the offence. The Police Service in its study of anti-gay lesbian violence in 1995 found that lesbians were at least six times more likely and gay men four times more likely than heterosexual women and men to suffer a physical assault in a 12 month period. (4)

  2. HAD itself raises a number of issues. One is whether an allegation of a homosexual advance, without more, ought to be sufficient to raise self-defence and/or provocation. Another is the difficulty in disproving such an allegation given that the accused is almost inevitably the only source of information on the circumstances giving rise to the "homosexual" victim's death. Further, although a HAD case may not have resulted from express anti-gay sentiment (as compared to outright "queerbashing" cases), it does raise broader issues relating to the treatment of homosexuality and the gay victim by the criminal justice system and the community. (5)

  3. In most, if not all, cases examined, the accused presented his defence by way of a dock statement which could not be tested by cross-examination. Dock statements were abolished by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994 in respect of accused persons charged after 10 June 1994. However, it was considered that HAD involved issues more fundamental than the fact that it was usually advanced by way of dock statement.


C. Cases Involving Reference to a Homosexual Advance

  1. The Working Party confined its examination to cases dealt with in the NSW Supreme Court during the period 1993 to present. Information was collated from the Criminal Registry of the NSW Supreme Court, the Office of the DPP and the Police Service. It is noted that there might be cases which have not been brought to the Working Party's attention.

  2. Details of cases are set out in Appendix 1. The information shows the following:

    Cases in which homosexual advance alleged
    (NSW Supreme Court 1993-present)
    No.Case name
    Number of (known) cases:13 
    Number of accused (includes co-accused):16 
    Jury verdicts (accused indicted for Murder)
    Acquittals:2McKinnon;
    Bonner
    Guilty murder:2Green;
    CD
    Not guilty murder but guilty manslaughter:3Turner;
    Dunn; Chaouk
    Pleas of Guilty
    Plea to murder:1McGregor
    Plea to manslaughter:4Jacky:
    G Diamond;
    PA; Chapman
    Plea to Malicious Wounding:1Stevenson
    Plea to Harbour & Assist:1B Diamond
    Plea to Accessory after fact:1JLA
    Other
    No-billed by DPP1Hokin

  3. The data shows that in the period 1993 to present, there have been 13 cases in which the allegation of a homosexual advance was made. The Working Party took the view that the number of cases was sufficiently high to warrant concern. It is noted that cases involving HAD appear to have only surfaced in more recent years. It is not possible to determine the reason(s) for this trend, however, various reasons have been suggested. One is that the publicity generated by particular HAD cases in NSW, Victoria and South Australia in which the accused was acquitted (6) has made HAD an "attractive" defence. Another may be that, as there is now increased community acceptance of homosexuality, less stigma will attach to an accused if s/he alleges a homosexual advance. (It is arguable that such acceptance has, at the same time, also been attended by increased anti-gay sentiment).

  4. It is noted at this point that there are other cases awaiting trial in which it is anticipated that the accused will be making reference to a homosexual advance. Further, Supreme Court matters represent only a proportion of cases where reference to a homosexual advance is made. Two Local Court maters, involving assault in response to an alleged homosexual advance, were brought to the attention of the Working Party. Finally, the date does not take into account any pre-1993 cases.

  5. All cases, except one, resulted in homicide. In the one case which did not result in death (Case No. 5 Stevenson), the accused was indicted for "wound with intent to murder'.

  6. The Working Party concentrated primarily upon those cases involving trial by jury and which resulted in an outright acquittal or verdict of manslaughter in lieu of murder. These are the cases which also attracted the most concern within sections of the community.

    Cases which resulted in verdicts of not guilty of murder or manslaughter

    *R v McKinnon

  7. In McKinnon, there was evidence before the jury that the accused (D) (aged 22) went with the victim (V) (aged 46) to V's home after talking about buying marijuana. In an unsworn statement, D claimed that upon entering V's bedroom to look at some marijuana, V threw D onto the bed, pulled down D's tracksuit pants and was on top of him. D responded by hitting V on the head with a wine bottle. D ran from the room to the back door which was locked. V came after him with a knife and was swearing. D, believing he was in mortal danger, also got a knife from the kitchen. V and D continued to struggle as D tried to leave the house. V let D out when D threatened him with his knife but V came after D again. Another struggle took place outside. D pushed V's head into a wall and left V unconscious. D went back into the house to get his wallet. While there, D stole objects belonging to V including V's car.

  8. The Crown called witnesses who gave evidence that D had told them he had "rolled a fag".

  9. The jury was directed in relation to both self-defence and provocation.

    *R v Bonner

  10. In R v Bonner, there was evidence before the jury that D (aged 26) and V (aged 36) were casual acquaintances. In an unsworn statement, D claimed that V had once made a suggestion to him about sex to which D had responded that he was not a homosexual. On the night of the killing, V had been drinking with others at a local hotel and continued with D at D's flat. When D asked V to leave due to the late hour, V became angry and had screamed, "If I want to fuck you, I'll fuck you." A struggle followed during which V pushed D around and jammed D up against the kitchen bench. D claimed V was a lot stronger than him and that he just wanted to get away. D grabbed a knife while in the kitchen and stabbed V in the neck. Upon realising that V was bleeding, D tied a shirt around V's neck to stop the bleeding and asked a neighbour to call an ambulance.

  11. The jury was directed in relation to both self-defence and provocation.

    Cases which resulted in verdicts of not guilty of murder but guilty of manslaughter

    *R v Turner

  12. In R v Turner, D (aged 17) walked past V's (aged 64) home and was invited in by V for a drink. In an unsworn statement, D alleged that he stayed for about 20 minutes and as he got up to leave, V grabbed D on the bottom with both hands and "said something". D pushed V away and V swung a punch at him. A struggle followed during which D picked up a door stopper (a garden gnome) and bashed V's head causing death. D also stabbed V with a knife a number of times. He said he did this because the door was locked and he had to get the keys from V. D stole V's video and tried to sell it.

  13. The jury was directed in relation to both self-defence and provocation.

  14. Upon being convicted for Manslaughter, D was sentenced to a minimum term of 3 years and an additional term of 3 years imprisonment.

    *R v Dunn

  15. In R v Dunn, D (aged 19) claimed that he had been cycling with a friend along a dirt bike path when V (aged 23) approached him. D gave sworn evidence that V said he was "going to get D" whilst holding his penis in his hand and thrusting his hips towards D's legs. V was dressed as a woman. D stated that his friend hit V and that V fought back. D's friend left and D then punched V. D claimed he was acting in self-defence. V would jump up off the ground and say, "Is that all you've got?" and spit in D's face. V's body was found the next morning half naked with a stocking tied around his penis. D stole a keycard and cigarettes from V.

  16. The prosecution called evidence from D's friend (indemnified prosecution witness) who stated that he saw D punch and kick V for about 40 minutes, as well as jump on V's head while he was lying on the ground. Evidence was also called that D had told others that he has "just bashed a rock spider". It was inferred that D had returned to the scene of the crime before returning to his friends and telling them that he had "killed him". Medical evidence was given that the base of V's skull was fractured, and V's penis was tightly wound with nylon which was likely to have occurred when V was unconscious but not dead. The cause of death was a massive cerebral haemorrhage.

  17. The jury was directed in relation to both self-defence and provocation.

  18. Upon being convicted for Manslaughter, D was sentenced to a minimum term of 7 years and an additional term of 4 years imprisonment.

    Cases in which the accused entered a plea of guilty

  19. Eight (8) please of guilty were entered in respect of various offences (two of these were cases in which there was more than one accused). One (1) accused pleaded guilty to murder.

  20. Four (4) accused entered a plea of guilty to manslaughter (Appendix 1 - Case Nos. 2, 6, 11, 13). It is the function of the prosecution to determine whether a person will be prosecuted and, if so, for what offence. A court is, ordinarily, bound by the charge which the prosecutor elects to bring: Maxwell v R 1996 70 ALJR 324

  21. The Working Party does not, at this stage, seek to comment on these cases.


D. Issues

(1) Legal issues

(i) Self-Defence

The law

  1. The law of self-defence acknowledges that a person has a basic right to repel an unlawful attack. A finding that a person acted in lawful self-defence entitles him or her to be acquitted of the offence charged.

  2. The leading case on self-defence is Zecevic v DPP (Vic) (1987) 162 CLR 645, in which the High Court stated at 661:

    "... an explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he has that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."

  3. The law is thus restrictive in the following ways. First, D must have honestly as well as reasonably believed in the existence and nature of the perceived attack. The defence would not be available where a person's belief as to the threatened danger was honest but fanciful or unreasonable. Second, the response must have been necessary. Necessity can be assessed by, for example, the imminence of attack, the availability of other means of avoiding the harm and the value or interest to be protected. Third, D's response must be reasonable. This is usually determined in terms of the force being proportionate to the danger posed. On one view, D should only be able to use fatal force in case of life-threatening attacks (7)

  4. Where self-defence is raised D bears an evidential burden, that is, D must adduce or be able to point to evidence making the issue a genuine one. The onus remains, however, on the Crown to disprove self-defence beyond reasonable doubt. Should the Crown succeed, the defence fails and D would be convicted.

  5. The issue of self-defence may arise on the evidence but not be formally raised by the defence. Where the issue of self-defence is fairly open, the trial judge has an obligation to leave the question of self-defence to the jury, regardless of the course taken by the defence: R v Strang (CCA NSW 10 December 1990 unreported).

  6. The law of self-defence is not restricted to the offence of murder. It applies to all cases involving offences of violence such as manslaughter or non-fatal assaults.

    Self-defence and HAD

  7. The primary concern about the operation of the defence of self-defence in HAD cases centres upon the actual nature of the attack or perceived threat.

  8. In the light of Zecevic, generally in cases involving murder only very serious violence or the threat of it will justify an accused acting with intent to kill or to inflict grievous bodily harm. Otherwise, the situation will not normally be such as to render the accused's response a reasonable one. (8)

  9. The main criticism levelled against the operation of self-defence in HAD-type cases appears to centre upon the failure to differentiate between sexual advance and a sexual attack. If the case involves evidence of a sexual attack, thereby involving violence, then self-defence is arguably a legitimate defence. However, what if the advance is non-violent? A non-violent advance might including a touching, grabbing or groping of an intimate body part.

  10. Overseas commentators on HAD have suggested that the courts have not required, nor appeared interested in, establishing the difference between a non-violent advance and an attack. (9) A claim by an accused of a non-violent homosexual advance in order to justify self-defence is flawed. The self-defence test requires an accused to have acted on an honest, and yet reasonable, belief as to a threat. An accused must also respond with force that is reasonable. A violent response to a non-violent homosexual advance is arguably unreasonable and does not ground self-defence. (10)

  11. It has been suggested that the operation of self-defence in such cases can be partly attributed to community attitudes toward homosexuality, and particularly to notions concerning the protection of 'male honour' and 'masculinity': (11)

    "That a sexual advance made by a gay man does not itself pose a danger meriting retaliation appears to be a bias shared by some judges and jurors. The justification for self-defence in these incidents is not the physical threat posed by the "advance" but the sexual identity of the victim. In other words, it is assumed that a gay man making sexual overtures to another man deserves to be punished physically." (12)

  12. A further difficulty, however, it that it is not always easy to isolate an 'advance' as the basis upon which self-defence is raised. In each of the NSW HAD cases outlined above, the accused alleged that a struggle ensued between the accused and the victim. On the version of events given by each accused, the sexual 'advance' was a precursor to a violent struggle in which the victim was the primary aggressor who attacked or threatened the accused, such that it was necessary for the accused to retaliate with force.

  13. In each of these cases the prosecution argued that the actions of the victim did not constitute such a threat to the accused as to call for the extreme response of killing, or inflicting injuries upon, the victim. In a couple of the cases, direct reference was made to the fact that the alleged homosexual advance by the victim was insufficient for self-defence:

    • In R v Bonner, the prosecution argued that D's actions in response to the victim's actions were "over the top" and that D could have left the house rather than stab the victim.

    • In R v Turner, the prosecution argued that the alleged actions of the victim (grabbing of the buttocks combined with a moaning) was not sufficient to ground self-defence.

  14. Ultimately, whether the accused's version of events was to be accepted or rejected, and whether the prosecution disproved self-defence beyond reasonable doubt, became a matter for the jury to be assessed on the whole of the evidence.

  15. The Working Party is presently of the view that there is no difficulty with the content of the law of self-defence. The law of self-defence is capable of applying in HAD cases and is capable of producing a just result.

  16. There are, however, more general and fundamental problems (as opposed to specific) in the context of HAD cases. In the Working Party's analysis of HAD cases, there is some concern that a jury may have equated a homosexual advance with a homosexual attack, there being no distinction in their mind between an offensive, but nevertheless innocuous, remark or action and a sexual assault. (This may stem from the mythical homosexual male stereotype as "predator/attacker": see paragraphs 71ff below). The Working Party's conclusion is that the former appears to have been sufficient to raise self-defence in at least one case and that this is a matter of concern. To the extent that misinformation, ignorance and myth in the community at large allow self-defence to be raised and accepted by a jury in such circumstances, a co-ordinated and strategic community education campaign can do much to ensure that claims of self-defence are critically examined in this context (see paras 83-86 below).

(ii) Provocation

The Law

  1. In NSW, by common law and section 23 of the Crimes Act 1900, the crime of murder may be reduced to manslaughter if the killing occurred in circumstances of provocation.

  2. The test as to whether provocation should be left to a jury is: "[W]hether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense": Masciantonio v R (1995) 183 CLR 58

  3. Once provocation is raised, the onus is on the prosecution to exclude any reasonable possibility that the accused was acting under provocation: section 23(4) Crimes Act. The prosecution eliminates provocation if it establishes any of the following:

    1. that the act of the accused which caused the death of the deceased did not result from a loss of self-control;

    2. that the loss of self-control was not induced or caused by conduct on the part of the deceased or of some other person attributable to him or her; or

    3. the conduct of the deceased was not such that it could have caused an ordinary person in the position of the accused to have so far lost their self-control as to form the intention to kill (or to inflict grievous bodily harm upon the deceased).

  4. Section 23(3) negatives the rule of law that there must be reasonable proportion between the act and the conduct alleged to have provoked the accused, that the act must have been sudden or that the act was done with the intent to kill or inflict grievous bodily harm.

  5. "An ordinary person in the position of the accused" involves both a subjective and objective test. The gravity of the conduct alleged to have provoked the accused must be assessed by reference to an accused's relevant characteristics such as age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. However, the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control is assessed objectively. The characteristics of the ordinary person are those of a person with ordinary powers of self-control, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age: Masciantonio v R (1995) 183 CLR 58; Stingel v The Queen (1990) 171 CLR 312.

Provocation and HAD cases

  1. In each of the NSW HAD cases the jury was directed in relation to provocation. A verdict of manslaughter was returned in tow:- R v Turner and R v Dunn. On sentence, the judge was bound to make findings not inconsistent with the jury verdict. In each matter it was found that murder was reduced to manslaughter on account of provocation. The nature of the act claimed by D at trial was:

    • R v Dunn: V said, "I'm going to get you and give it to you good". D was confronted by V dressed as a woman with make-up on which made D "feel sick". V had his penis in his hand and his "hands all over" D. V was rubbing up and down D. V spat in D's face and said, "Is that all you've got?"

    • R v Turner: V grabbed D on the buttocks and "said something" or made a moaning sound.

  2. The primary concern about the application of provocation in HAD cases is whether a non-violent homosexual advance should constitute sufficient provocation to incite an ordinary person to lose self-control and kill, and thereby be convicted of manslaughter in lieu of murder. (Again, the distinction is made between a violent and non-violent sexual advance).

  3. On the other hand, it is suggested it should not. (13) To allow a non-violent advance to amount to sufficient provocation is wrong because it reinforces the notion that fear, revulsion or hostility are valid reactions to homosexual conduct. A murderous reaction toward gay men should not be regarded as ordinary behaviour but as an exceptional characteristic of the accused. The 'ordinary person' is an ideal which should "reflect the standard to which society wants its citizens and system of justice to aspire." (14) A homosexual advance should therefore be insufficient provocation as a matter of law. Ultimately:

    "[W]hen defendants who kill in response to homosexual advances are not convicted of murder, courts and juries reinforce the notion that homosexuality is culpable behaviour and that gay men do not deserve the respect and protection of the criminal justice system." (15)

  4. Given the decriminalisation of homosexual conduct between males aged 18 and above in NSW in 1984, it is arguable that a non-violent homosexual advance towards an adult male should not now be capable of raising provocation at all, provided of course that it doesn't otherwise constitute an assault or some other unlawful act.

  5. On the other hand, the law recognises that there are differing degrees of personal criminal culpability, hence the availability of provocation to partially excuse a killing by a person not in control of his/her emotions. (16). Provocation does not justify the killing. It is a partial excuse which reduces the offence from murder to manslaughter. Therefore, the final determination as to whether there was provocation such that the ordinary person in the position of the accused could have lost self-control ought to be left to the jury. (17)

  6. In R v Green (NSW CCA 8 November 1995 unreported) (18) (Appendix 1 case No. 8) a majority of the Court of Criminal Appeal recently took the view that a non-violent homosexual advance was not sufficient to meet the objective test. In that case the advance consisted of the victim getting into bed where the accused was laying and touching the accused's body and groin. The accused responded with punching and stabbing and was convicted of murder. On appeal, Priestly JA (with whom Ireland J concurred, Smart J contra) stated at 26:

    "It seems to me that on the evidence the jury had before them ... they could hardly have come to any different conclusion ... This is not to say that the behaviour of (the victim) up to the point where the appellant lost self-control was not offensive and provocative. (19) It is easy to see that many an ordinary person in the position in which the appellant was when (the victim) was making his amorous physical advances would have reacted indignantly, with a physical throwing off of the deceased, and perhaps with blows. I do not think however that the ordinary person could have been induced by the deceased's conduct so far to lose self-control as to have formed an intent to kill or inflict grievous bodily harm upon (the victim)."

  7. In discussion about HAD it is also often suggested that females do not react violently to non-violent sexual advances, and that a female who did so would not be able to rely so easily on provocation or, for that matter, self-defence as males have in HAD cases. (It is, of course, well-documented that females are far less likely to be involved in violent encounters than males, particularly young males). Again, this is said to be linked to biased community attitudes toward homosexuality, and notions about the protection of 'male honour' and 'masculinity'.

  8. The NSW Law Reform Commission is yet to release its final report on 'Provocation, Diminished Responsibility and Infanticide'. (20) On that basis the Working Party did not consider it appropriate to consider any changes to the substantive law at this stage. That process should await the release of the Commission's report. It is noted however that the law on provocation has recently attracted criticism for it complexity and that there may be a case for simplification of the law.

  9. No recommendation is therefore made that provocation should not continue to apply in HAD cases. The Working Party is of the view, however, that where provocation is raised there is a strong need to limit the role that prejudice, if any, might play in a HAD trial and jury deliberations. There is also a need to emphasise that there is a significant difference between a sexual advance and a sexual attack. A suggested judicial direction which may be effective in achieving this is:

    [Following the standard direction on the 'ordinary person']:

    "However, in determining whether an ordinary man in the defendant's situation might act from passion, rather than judgment, I instruct you that such a person would not act as the result of prejudice toward, or fear of, homosexuals or homosexuality. In this regard, the law does not treat a homosexual advance by the deceased as either more or less provocative than if he had made a comparable sexual advance upon a woman." (21)

  10. Provocation therefore remains a jury matter. However, the direction attempts to make clear that hatred of homosexuals is not a proper basis for provocation and that a homosexual advance is to be regarded on an equal footing with a heterosexual advance. Such a direction will, at least, work toward bringing the issue of prejudice or bias against homosexuality to the fore. (22)

  11. One option to ensure that such a direction is given would be to legislate. (A direction on delay or absence of complaint in sexual assault trials is, for instance, mandatory by statute in certain circumstances). A second option is to recommend that the above direction be suggested for incorporation in the Judges' Bench Book. (23) At this stage, the Working Party favours the latter as a more practical and speedy means of addressing this issue. Certainly the necessity for legislative amendment can be re-considered in light of further cases which might involve HAD and where the above suggested directions may or may not be given.

  12. A further direction considered by the Working Party is one already often given in relation to the ordinary person. The jury is directed that the 'ordinary person' element is required to ensure that:

    "an accused person who is abnormally or exceptionally sensitive to provocative behaviour is not permitted to escape full responsibility for causing the death of another person."

  13. The Working Party is attracted to this direction subject to the qualification that a homosexual advance ought not be regarded as inherently provocative behaviour. It does however focus the jury's attention on the limits of the partial defence of provocation.

(2) Other issues

Further Jury Directions

  1. The Working Party had the opportunity to examine judges' directions to juries in the HAD cases. Certain directions attracted the attention of the Working Party.

  2. A jury is generally always directed that it has a duty to reach its verdict impartially and without prejudice. In two of the HAD cases the jury was directed specifically in relation to homosexuality and sexual preference. In one case:

    "[O]n the question of homosexuality, I direct you that a person's background is not of the slightest relevance. Obviously the question arose in fact in this case that there should be no prejudice against the deceased or the accused on the basis of sexual preference. You should decide the matters on the issues without prejudice and without empathy to the deceased, without empathy to his family or the family of the accused or the accused himself."

    In the other:

    "Further evidence ... may lead you to conclude that (the victim's) behaviour and sexual preferences departed from the conventional and did not accord with the views which you may regard as morally acceptable. It is therefore important that you remember that this is a Court of Law and not a court of morals. Prejudice and emotion must have no place in a court of law. Everyone is equal before the law."

  3. The Working Party favours a combination of the above directions being brought to the attention of the judiciary:

    You may conclude that the deceased's behaviour and sexual orientation do not accord with those which you regard as morally acceptable. It is therefore important that you remember that this is a Court of Law and not a court of morals. Prejudice and emotion must have no place in a court of law. Everyone is equal before the law. So, on the question of sexuality, I direct you that a person's background is not of the slightest relevance. There should be no prejudice against the deceased or the accused on the basis of sexual orientation. You should decide the matters on the issues without prejudice and without empathy to the deceased or the accused.

    Again, one option would be to suggest that this direction be forwarded for inclusion in the Judges' Bench Book. This direction could also be outlined in an article on HAD for publication in the Judicial Officers Bulletin (see paragraph 85 below).

Evidence as to Victim's Homosexuality

  1. A pressing concern in HAD cases is that evidence of a victim's homosexuality or homosexual behaviour can inflame and bias juries as well as others involved in the conduct of a criminal trial. This can result from either prejudice against homosexual conduct or simply lack of knowledge of homosexuality and homosexual practice. (24)

  2. The concern is directed particularly at the type of evidence which is introduced and the assumptions that might be made from it. For example, evidence in R v McKinnon that the victim frequented 'gay beats' and had anonymous sex might have led a jury, if unfamiliar with homosexual practice, to assume that such a person was 'predatory' and therefore more likely to have made a violent sexual advance.

  3. The portrayal of the gay victim as 'deviant' might also lead a jury to consider that the victim is in some way responsible for the killing or less-deserving of the protection of the law. Such concerns have been expressed in regard to R v Dunn.

  4. The major option discussed by the Working Party concerned the calling of 'expert' evidence by the prosecution on homosexuality, homosexual practice and homophobia as a means of explaining such matters to an inexperienced jury. It was conceded, however, that the grounds for admissibility of such evidence would be questionable. Moreover, the option might have the undesirable result of the defence calling its own 'expert' and the perpetuation of the calling of further experts for both sides.

Investigation by Police

  1. The quality of police investigations can affect the strength or weakness of the prosecution case. One particular concern directed at HAD cases is that the allegation of a homosexual advance is fictitious and that the accused intentionally placed himself in a sexual male/male situation to bash and, perhaps, rob the victim. (Robbery occurred in three of the cases above: R v McKinnon, R v Turner and R v Dunn). It is noted, too, that in many cases the victim suffered repeated and horrific injuries.

  2. The Working Party agreed that relevant police should be made aware of the number of cases which have involved HAD and the issues which arise. It is also considered important that police attempt to establish, so far as it may be possible, whether the accused had singled out the victim for an altogether different purpose, as opposed to merely accepting an allegation of homosexual advance. General information on homosexuality and homosexual practices would also be useful.

  3. It is understood from the Working Party's meeting with Crown Prosecutors that the police investigation in HAD cases to date has been of a high standard.

Prosecution

  1. Prosecution staff have some knowledge of HAD-type cases. The Director of Public Prosecutions was requested to notify the Working Party of any cases involving, or which had involved, HAD. Crown Prosecutors and DPP solicitors/advocates were subsequently advised of this request and information was passed to the Working Party's representative.

  2. The Working Party agreed that it would perhaps be useful for the prosecution to be made aware of the number of cases which have involved HAD as well as the issues which arise. This might lead to an understanding of the implications which can flow from particular kinds of evidence and also to responsive and appropriate questioning of witnesses, including the accused. It might also be useful for the judicial directions, outlined above, to be canvassed. The Attorney general's Department, the Director of Public Prosecutions and the Public Defenders' could work together on these issues.

Effects of Discriminatory Laws

  1. A significant number of discriminatory laws, which have a major impact on the lives of those in homosexual relationships, continue to emphasise and isolate the homosexual community as deserving of lesser rights than others under the laws of this State. (25) In this respect, the Working Party also noted the difference in the legal age of consent for homosexual sex (18 years) and heterosexual sex (16 years). (26)

  2. It has been argued that the age of consent for homosexual sex should be the same as for heterosexual sex. A Number of grounds have been put forward for legislative change. The unequal age of consent is inherently discriminatory and effectively prevents young persons from seeking advice or assistance from health authorities for fear of legal repercussions. (27)

  3. The Working Party notes these arguments. For the purposes of this review, it might be suggested that the higher age of consent for homosexual sex reinforces the perception that homosexual males abuse or prey upon "children". It is both unrealistic and inconsistent to characterize 16 and 17 year old males as incapable of making decisions with respect to their sexual relationships when the opposite is the legally accepted position for 16 and 17 year old females. This is particularly relevant in the context of HAD cases where the accused is often of youthful age, relative to the victim.

Community Education

  1. There appears to be general consensus that an important issue is that of community education and judicial education, although with regard to the latter, there is nothing to suggest that other than appropriate and correct directions of law are being given to juries in relevant cases. It may be, however, that there are ways of making juries more aware of particular issues which arise in HAD cases.

  2. A survey of HAD cases reveals that most of the accused are of young age, confirming the documented fact that perpetrators of violence are usually male and under 25 years of age. (28) It is noted that the Department of School Education and the NSW Police Service have devised an anti-homophobic strategy.

  3. A useful and meaningful initiative would be the preparation of a short article for publication in the Judicial Officers Bulletin on the outcome of this review. The Bulletin is circulated to all members of the judiciary.

  4. Community education represents a much greater challenge. Specific strategies to combat homophobia in the community need to (be) taken up at a government level. The Working Party recommends that the Crime Prevention Division within the Attorney General's Department develop a comprehensive community education strategy, in consultation with representatives of relevant Government and non-government agencies.


Footnotes

  1. Comstock GD "Developments - Sexual Orientation and the Law" (1989) 102 Harvard Law Review 1541-1544 at 1542
  2. Mason G Violence Against Lesbians and Gay Men Australian Institute of Criminology Canberra November 1993
  3. NSW Police Service Out of the Blue: A Police Survey of Violence and Harassment Against Gay Men and Lesbians February 1995; see also NSW Attorney General's Committee on the Monitoring and Implementation of the Anti-Discrimination Board Report on HIV and AIDS Related Discrimination Fighting the Other Epidemic Attorney General's Department Sydney 1993
  4. NSW Police Service ibid
  5. see Lesbian and Gay Anti-Violence Project Homosexual Panic Defence And Other Family Values Sydney May 1995
  6. R v Robert Murley (Victorian Supreme Court, 1992); R v Jason Londema & Robert Verco (South Australian Supreme Court, 1992). For an outline of these cases, see Galbriath L "He Touched Me!" Outrage Melbourne No. 130 March 1994 at 14
  7. Findlay M, Odgers S and Yeo S Australian Criminal Justice Oxford University Press Melbourne 1994 at 31-32
  8. see Gillies P Criminal Law Law Book Company 1993 at 301-302, where it is argued that the accused's honest albeit unreasonable belief in the need to act in self-defence should also ground the defence.
  9. Comstock GD "Dismantling the Homosexual Panic Defence" (1992) 2 Law and Sexuality 81 at 97
  10. Comstock n1 at 1547
  11. see Tomsen S "Hatred, Murder & Male Honour: Gay Homicides and the 'Homosexual Panic Defence'" Criminology Australia November 1994 6(2) at 2; Polk K "Masculine Scenarios of Violence: The Case of Homicide" in Bessant J et al Cultures of Crime and Violence: The Australian Experience La Trobe University Press Victoria 1995
  12. Comstock n9 at 97
  13. see Mison R "Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation" 80 Cal L rev 133 (1992)
  14. Ibid at 160
  15. Ibid at 174
  16. see Dressler J "When 'Heterosexual' Men Kill 'Homosexual' Men: Reflections on Provocation Law, Sexual Advances, and the 'Reasonable Man' Standard" Journal of Criminal Law and Criminology 1995; 85(3): 726-763
  17. Ibid at 753-756
  18. Final application for special leave to appeal to High Court filed
  19. Emphasis added
  20. see NSW Law Reform Commission Provocation, Diminished Responsibility and Infanticide Discussion Paper No.31 August 1993
  21. Dressler n16 at 761; the Working Party's formulation of this direction in the Executive Summary prefers the term "act of provocation" rather than "provocative" in order to avoid the colloquial meaning of the latter.
  22. Ibid
  23. Reference works designed as working aids for use by judicial officers whilst on the Bench or in Chambers. The Criminal Trial Courts Bench Book provides judges sitting in the criminal jurisdiction of the Supreme and District Courts with suggested directions for use in instructing juries and information relevant to sentencing law. This service is aimed at providing assistance to judges, particularly new judges, in the task of summing up to a jury trial.
  24. Lesbian and Gay Anti-Violence Project n5; Tomsen n11
  25. Human Tissue Act 1983; Coroner's Act 1980; Wills Probate and Administration Act 1988; Family Provisions Act 1982; Victims Compensation Act 1982; Workers Compensation Act 1916; Guardianship Act 1987; Stamp Duties Act 1920; Bail Act 1978; Evidence Act 1898; Crimes Act 1900; Adoption of Children Act 1965; Artificial Conception Act 1984; Motor Accidents Act 1988; Compensation of Relatives Act 1897; see generally The Bride Wore Pink, a Discussion Paper, Lesbian & Gay Legal Rights Service (NSW), February 1994
  26. Crimes Act 1900 s66C and s78K
  27. see in particular: Gay & Lesbian Rights Lobby The Equal Age of Consent Bill Sydney February 1995
  28. Mason n2 at 4

Bibliography

Berman P "Provocation: Difficulties in the Application of the Subjective Test" Criminal Law News (1995) Volume 2 No.1 at 7
Comstock GD "Developments - Sexual Orientation and the Law" (1989) 102 Harvard Law Review 1541-1554
Comstock GD "Dismantling the Homosexual Panic Defense" (1992) 2 Law and Sexuality 81
Dressler J "When 'Heterosexual' Men Kill 'Homosexual' Men: Reflections on Provocation Law, Sexual Advances, and the 'Reasonable Man' Standard" Journal of Criminal Law and Criminology 1995; 85(3): 726-763
Findlay M, Odgers S and Yeo S Australian Criminal Justice Oxford University Press Melbourne 1994
Galbraith L "He Touched Me!" Outrage Melbourne No. 130 March 1994
Gay & Lesbian Rights Lobby The Equal Age of Consent Bill Sydney February 1995
Gillies P Criminal Law Law Book Company (3rd ed) 1993
Harvard Law Review (eds) Sexual Orientation and the Law Harvard University Press Boston 1990
Lesbian and Gay Anti-Violence Project Homosexual Panic Defence and Other Family Values Sydney May 1995
Mason G Violence Against Lesbians and Gay Men Canberra November 1993
Mison R "Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation" (1992) 80 Cal L Rev 133
NSW Attorney General's Committee on the Monitoring and Implementation of the Anti-Discrimination Board Report on HIV and AIDS Related Discrimination Fighting the Other Epidemic Attorney General's Department Sydney 1993
NSW Law Reform Commission Provocation, Diminished Responsibility and Infanticide Discussion Paper No. 31 August 1993
NSW Police Service Out of the Blue: A Police Survey of Violence and Harassment Against Gay Men and Lesbians February 1995
Polk K "Masculine Scenarios of Violence: The Case of Homicide" in Bessant J et al Cultures of Crime and Violence: The Australian Experience La Trobe University Press Victoria 1995
Tomsen S "The Political Contradictions of Policing and Countering Anti-Gay Violence in New South Wales" Current Issues in Criminal Justice November 1993 Volume 5, No. 2
Tomsen S "Hatred, Murder & Male Honour: Gay Homicides and the 'Homosexual Panic Defence'" Criminology Australia November 1994 Volume 6, No. 2

Appendix 1 - Table of 'homosexual advance defence' cases

No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
1. McKINNON,
Christopher Paul (22)
Maurice
McCarthy (46)
91/91/0125
Sydney SC
24 Nov 93
Jury verdict:
Not guilty murder
N/A 6 Apr 91 Newtown. D accompanied V home. D alleged homosexual advance and struggle ensued. V bashed severely  
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
2. JACKY,
Leeton (25)
Noel Walsh (50) 93/91/0013
Sydney SC
5 Mar 93
Plea:
Guilty manslaughter
10 Jun 93
MT 2.5y
AT 2.5y
23 May 91 Sth Kempsey. D intoxicated. Fell asleep in park. Awoke to find V sexually assaulting him. D bashed V with walking stick. Sentencing judge took into account evidence that sexual assault of this type on D is considered "shaming and demeaning" in Aboriginal culture. D believed he was entitled to "defend himself" when attacked sexually by a man.
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
3. CHAOUK,
Mahmoud (26)
Rudolph Friedl 91/91/0141
Sydney SC
11 Aug 93
Jury verdict: Not guilty murder but guilty manslaughter
17 Aug 93
MT 3.5y
AT 2y 8mths
24 Feb 91 Lakemba. D stabbed V to death. Evidence that D had been raped by V seven years earlier. D readily admitted to killing V. Trial judge found that basis for diminished responsibility was "post-traumatic disorder". Earlier rape acceptable at law as grounds for provocation.
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
4. McGREGOR,
Steven (22)
Robert Knox (37) 92/91/0065
Newcastle SC
Plea: Guilty murder 9 Oct 93
MT 12y
AT 4y
31 Jan 92 Bellbird. D and V acquainted. D alleged sexually propositioned by V. D refused and struggle ensued. D stabbed and bashed V with spade. Sentencing judge found this objectively a brutal murder.
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
5. STEVENSON,
Craig William (23)
Gregory Payne (40) 93/91/0046 Sydney SC Plea:
Not guilty to wound w/i murder;
Guilty -
(i) Mal wound
(ii) steal from person. Accepted by Crown in full discharge.
29 Oct 93
(i) Mal wound
MT 2y 6mths
AT 2y 6mths
(ii) Steal from person
FT 9mths
19 Mar 93 Wollongong. D alleged that V made sexual advances while watching television. D obtained knife from kitchen and stabbed V. D demanded, and received, money before leaving. Allegation of homosexual advance rejected by judge. The allegation was not made to police on arrest, only later to psychiatrist. Judge considered argument between D and V began on other grounds. Even if there were an advance "it could not have justified action" taken by D.
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
6. DIAMOND, Gary (19)
DIAMOND, Brian (18)
Sidney Hoare (63) 93/91/30022 93/91/0351 Sydney SC Plea:
GD-
Guilty manslaughter
BD-
Guilty Harbour and Assist
15 Apr 94
GD-
MT 6y
AT 3.5y
BD-
Recog $2000
GB 3y
11 Sep 92 Goulburn. GD and BD visited V to ask for money. V made advance to GD. GD left room, returned to V making advance to BD. GD obtained tyre lever from car and bashed V. V's house ransacked and items and money stolen. Both GD and BD, together with third co-accused, burnt V's clothes. Evidence from GD that he had been raped by V in May 1992. and that BD sexually assaulted as child by uncle. Judge took into account context of family history and its effect on GD of seeing his brother being assaulted.
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
7. HOKIN, John Brian Walker (30) No billed by DPP        
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
8. GREEN, Malcolm (22) Donald Gillies (36) 93/91/0080 Sydney SC 7 Jun 94
Jury verdict:
Guilty murder
MT 10y
AT 5y
20 May 93 Mudgee. D alleged homosexual advance by V, his friend. D claimed his reaction to the advance was prompted by fact that his sisters had been sexually assaulted by his father and that when he attacked V he had visions of his father. (This evidence was ruled inadmissible at trial). On appeal to the Court of Criminal Appeal - appeal dismissed. Judgment by the NSW Court of Criminal Appeal, unreported, 8 Nov 95 (refer paragraph 60 of Report)
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
9. TURNER, David john (17) Kevin Marsh (64) 93/91/0107 Sydney SC 13 Apr 94
Jury verdict:
Not guilty murder but guilty manslaughter
14 Jul 94
MT 3y
AT 3y
30 Jun 93 Port Kembla. V invited D inside his home for a drink. D aware of V's "reputation" but not otherwise acquainted. V made advance to D (grabbed buttocks) as D was leaving. D bashed V on head with garden gnome causing death. Stabbed V number of times with knife. Stole video. Spoke of killing when trying to sell it. On sentence, Judge found manslaughter verdict based on provocation. Judge found D's immaturity likely to "be reflected in his inability to cope with the sexual advance ... It should be emphasised that the circumstances of V's reputation and D's beliefs about it do not in any way justify an attack which led to the loss of life ... every human life is precious and the gross overreaction to what (D) interpreted as a sexual overture cannot be condoned."
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
10. DUNN, Thomas (19) Gordon Tuckey (23) 94/91/0003
Wollongong SC
Apr 95
Jury verdict:
Not guilty murder but guilty manslaughter
21 Sep 95
MT 7y
AT 4y
3 Jul 93 Wollongong. D alleged V made advance to him on bicycle path. V found beaten and half naked with stocking ties around penis.  
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
11. C.D. (16) P.A. (16) J.L.A. (17)
(Juveniles)
John Milicevic (45) 94/91/0015 Sydney SC C.D.-
Plea:
Guilty murder
P.A.-
Plea:
Guilty manslaughter
J.L.A.-
Plea:
Accessory after fact to murder
10 Feb 95
C.D.:
MT 8y
AT 4y
P.A.:
MT 3y
AT 4y
J.L.A.:
Recog $1000
GB 3y
15 Aug 93 Rushcutters Bay. All accused were homeless. Smoked marijuana and went to park. CJD stabbed V after V said he wanted to "kiss him". PA said they went to park "looking for someone to roll". They knew the park was a homosexual gathering place. PA attacked V after V "licked his lips like a fag." JLA observed attack. Sentencing judge stated that, in relation to CJD, there is nothing in version of events that would warrant any leniency being extended by reason of any conduct on the part of V. In relation to PA, the evidence of some kind of alleged advance made by V in no way mitigates the offence.
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
12. BONNER, Steven (24) Tom Arguet (36) 94/91/0049 Sydney SC 19 May 95
Jury verdict:
Not guilty murder
N/A 30 Oct 93 Kempsey. D and V acquaintances. Drank together at D's home. D asked V to leave. V upset. Earlier homosexual advance alleged. Struggle ensued. D stabbed V to death. Called ambulance.  
No. ACCUSED VICTIM Reference
Details
RESULT SENTENCE CASE SUMMARY Additional Comments
13. CHAPMAN, Phillip (26) Barry Webster (41) 94/91/0059 Newcastle SC 4 Oct 94
Plea:
Guilty manslaughter
16 Dec 94
MT 5y
AT 3y
Nov 94. D and V acquainted, watching video, drinking and smoking marijuana. V dragged D into bedroom. D grabbed brick and hit V out of fear of being raped. D was so intoxicated he would not have been able to have "put up resistance." D told police V had made overtures on other occasions. Told psychiatrist that he had "panicked when he realised V was going to rape him, a panic which he had never experienced before". Sentencing judge commented that the evidence as to any particular loss of control was vague. Had earlier expressed concern as to whether Court should accept plea. Concluded that D formed relevant intention not because V's conduct caused him to lose self-control but because such was his intoxication he was unable to resist V's actions which he feared would lead to rape. Did not regard this as a case where provocation accepted by the Crown has "special significance as to warrant more than a slight reduction in the objective gravity of the offence."