Table of Contents
Summary of Findings
The Working Party recommends the adoption of the following measures:
Recommendations regarding law and procedure:
1. The exclusion of a non-violent homosexual advance from forming the basis of the defence of provocation, by way of legislative reform of section 23 of the NSW Crimes Act.
2. The Attorney General writing to the Judicial Commission suggesting that a direction to the effect that criminal courts are not "courts of morals" be included in the Benchbooks for consideration for use in all criminal trials in which the sexuality of the alleged victim does not conform with majority stereotypes.
3. The removal of NSW laws that discriminate against gays and lesbians, including those criminal laws which impose a discriminatory age of consent upon gay men in New South Wales.
Recommendations regarding administrative matters:
4. The commencement of a campaign of community education by the Crime Prevention Division within the Attorney General's Department against the use of homophobic violence in response to a non-violent homosexual advance.
5. The monitoring of Homosexual Advance Defence (hereafter referred to as "HAD") cases by Justice Agencies, including the Director of Public Prosecutions (hereafter referred to as the "DPP") and the NSW Police Service.
6. The establishment of an ongoing Monitoring Committee, convened by the Criminal Law Review Division within the Attorney General's Department, with regard to HAD.
7. Continuing judicial education with regard to HAD.
8. The establishment of a Gay and Lesbian issues liaison officer within the Attorney General's Department.
9. Continued training of detectives with regard to investigatory techniques directed towards rebutting a possible HAD.
The Working Party puts forward for consideration the following options:
1. As a more rigorous alternative to recommendation 2 above, legislation mandating the giving of such a direction in appropriate criminal trials in New South Wales.
2. The abolition, by way of legislative reform, of the defence of provocation in New South Wales.
The Members of the Working Party
As at the date of the provision of this Report to the Attorney General, the Members of the Working Party were as follows:
Mr David Buchanan, SC, Barrister
Mr Richard Button, Director, Criminal Law Review Division
Superintendent Gary Gilday, NSW Police Service
Mr Bruce Grant, Lesbian and Gay Anti-Violence Project
Mr David McLachlan, Gay and Lesbian Rights Lobby
Mr Dirk Meure, Faculty of Law, University of New South Wales
Mr John Nicholson, SC, Deputy Senior Public Defender
Mr Ivan Potas, Judicial Commission
Mr Patrick Power, Deputy Senior Crown Prosecutor
Ms Sue Thompson, Police Gay and Lesbian Client Consultant, NSW Police Service
Mr Paul Van Reyke, Gay and Lesbian Rights Lobby
1.1 All people should be equal before the law. That generally accepted truism should apply as forcefully in the criminal courts as in any other, and to victims of crime as well as to those accused of committing them.
1.2 Concern has been expressed for a long time that gay men and lesbians do not enjoy that much-vaunted equality. In recent years, a number of criminal trials in NSW have starkly illuminated the gap between aspiration and reality.
1.3 A number of persons who had been charged with murder, and who asserted at trial that they had killed in response to an unwanted homosexual advance by the deceased, were either acquitted outright (by way of the defence of self defence) or found not guilty of murder but guilty of manslaughter (by way of the partial defence of provocation). With regard to both kinds of cases, many members of the gay and lesbian community, and many people generally, found the verdicts profoundly troubling. It seemed to them that it was very difficult to explain the acquittals on the counts of murder on any ground other than some prejudice within the criminal justice system against gay men, even in the context of murder trials in which they were the victims.
1.4 In July 1995, the Attorney General of New South Wales, the Hon Jeff Shaw QC, MLC, directed that a Working Party be established to review the operation of the Homosexual Advance Defence (hereinafter referred to as "HAD") in NSW. The Working Party was convened by the Criminal Law Review Division within the Attorney General's Department. Also represented were the Office of the DPP, the Public Defenders, the Crown Prosecutors, the Judicial Commission, the Criminal Bar, the Police Service, the Gay & Lesbian Rights Lobby, the Gay and Lesbian Anti-Violence Project and the Faculty of Law of the University of NSW.
1.5 The Working Party's Terms of Reference were:
- To conduct a review of HAD;
- To examine court transcripts in order to document those cases where HAD has been raised and to ascertain whether there is difficulty with the operation or application of the law; and
- To identify community education strategies in order to address the issue raised by the defence.
1.6 It was not the role of the Working Party to comment upon the directions of law given by judges or verdicts given by juries in particular cases.
1.7 The Working Party's work was confined to homicide cases. It did not focus upon proceedings for other offences, in which HAD may have been relied upon in exculpation or mitigation.
1.8 The Working Party convened on a number of occasions. 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;
- Transcripts of trial and sentence matters were obtained; and
- Through the Attorney, permission was sought from and granted by individual Supreme Court judges for the Working Party to obtain transcripts of summings-up to juries.
1.9 The Working Party met with various prosecuting counsel who had appeared in cases involving HAD.
1.10 A paper on HAD was 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", which was held in Sydney in October 1995.
1.11 A Discussion Paper was released by the Working Party in August 1996. It received publicity in the mainstream and gay and lesbian press. A number of responses were received by the Criminal Law Review Division in answer to the Discussion Paper; some from lawyers, some from community groups, and some from concerned individuals. A public meeting was held by the Gay and Lesbian Anti-Violence Project to discuss the Discussion Paper.
1.12 Shortly before the release of the Discussion Paper, special leave to appeal to the High Court of Australia in the case of R v Green, a decision of the New South Wales Court of Criminal Appeal, had been filed. Subsequently, special leave to appeal was granted, and it became apparent that the Court at the apex of the criminal justice system in this country would, at some time in the future, come to consider the defence of provocation in this State within the particular context of the HAD. It seemed to the Working Party that it would be premature to provide a Final Report to the Attorney General whilst the High Court's judgment in that case was still pending.
1.13 Furthermore, the Working Party became aware in 1997 that the Law Reform Commission of New South Wales would shortly release a Final Report with regard to provocation.
1.14 In all of the circumstances, it seemed appropriate for the Final Report to be delayed until both the judgment in Green v The Queen and Final Report 83 of the Law Reform Commission became available. They did so in late 1997, and this Final Report seeks to take into account each of them.
1.15 The Final Report repeats much of the analysis of particular trials and sentence matters contained in the Discussion Paper. However, many of the original recommendations have been substantially modified in light of the submissions received.
Background about HAD (Homosexual Advance Defence)
What is meant by the term "Homosexual Advance Defence"?
2.1 "Homosexual Advance Defence"(HAD) is not in itself a legally recognised defence. HAD is a term used by the Working Party to describe cases in which an accused person alleges that he or she acted either in self defence or under provocation in response to a homosexual advance made by another person.
2.2 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 some form of insanity or diminished capacity defence. 
2.3 The Working Party has adopted the term 'homosexual advance defence' for two main reasons. First, NSW cases of which the Working Party is aware in which reference to a homosexual advance has been made have raised self defence or provocation as opposed to insanity or diminished responsibility. Second, the term 'homosexual panic defence' has negative and unjustified connotations, in that it could suggest that 'panic' is a legitimate response to homosexuality or a homosexual advance.
What are the concerns about HAD?
2.4 Concern about HAD stems from the use of violence against gay men and lesbians generally.
2.5 The Australian Institute of Criminology has described the level of such violence in Australia as "disturbing", and has noted there is evidence to suggest that it is rising. While much less is known about anti-gay and anti-lesbian homicide, between 1990 and 1996 there were 26 such cases in NSW alone (constituting roughly 20% of stranger homicides) . 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 and 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.
2.6 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 or provocation. Another is the difficulty in disproving such an allegation, given that, in HAD cases, the accused is very often the only source of information on the circumstances directly giving rise to the victim's death. Further, although a particular HAD case may not have resulted from express anti-gay sentiment (as compared to outright "queer bashing" cases), it does raise broader issues relating to the treatment of homosexuality and the gay victim by the criminal justice system and the community generally.
2.7 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. In New South Wales, dock statements have been abolished by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994 in respect of accused persons charged after 10 June 1994. However, the Working Party considered that HAD involved issues more fundamental than the fact that it was usually advanced by way of dock statement. In other words, the abolition of the dock statement by no means removes all of the concerns about HAD.
HAD Cases in Australia
3.1 The Working Party confined its examination to cases dealt with in the NSW Supreme Court during the period 1993 to 1998. Emphasis was placed upon the period between 1995 and 1996, that being the point at which the Discussion Paper was released. Information was collated from the Criminal Registry of the NSW Supreme Court, the Office of the DPP, and the Police Service.
3.2 It should be noted that there may well be cases which have not been brought to the Working Party's attention.
3.3 The results of the research are as follows:
Cases in which HAD relied upon--NSW Supreme Court 1993-1998
|Number of (known) cases||13|
|Number of accused (includes co-accused):||16
Verdicts in Murder Trials
|Result||Number||Name of Accused|
|Guilty of murder||2||Green—NB new trial ordered|
|Not guilty of murder but guilty of manslaughter||4||Turner|
Pleas of Guilty
|Harbour and Assist||1||B Diamond|
|Accessory after the fact to murder||1||JLA|
3.4 The data shows that in the period from 1993 to 1998, there were at least 13 homicide cases in which an allegation of a homosexual advance was made. The Working Party took the view that the number of cases was sufficiently high to warrant concern.
3.5 It is also noted that cases involving HAD appear to have only surfaced in more recent years. It is not possible to determine the reasons for this trend; however, a number 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 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 he or she alleges a homosexual advance. It is arguable that such acceptance has, at the same time, also been attended by increased anti-gay sentiment.
3.6 It should be emphasised that Supreme Court matters represent only a proportion of cases where reference to a homosexual advance is made. Two Local Court matters, involving assault in response to an alleged homosexual advance, were brought to the attention of the Working Party.
3.7 Finally, it is stressed that the data does not take into account any pre-1993 cases.
3.8 All cases examined, except one, resulted in homicide. In the one case which did not result in death, the accused was arraigned on a count of 'wound with intent to murder'.
3.9 The Working Party concentrated primarily upon those cases involving trial by jury and which resulted in an outright acquittal or a 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 complete acquittals
R v McKinnon
3.10 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 has 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 bashed V's head into a wall a number of times 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.
3.11 The Crown called witnesses who gave evidence that the accused had said he had "rolled a fag".
3.12 The jury was directed in relation to both self defence and provocation.
R v Bonner
3.13 In 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 he was not 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.
3.14 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
3.15 In 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.
3.16 The jury was directed in relation to both self defence and provocation.
3.17 Upon being convicted of manslaughter, D was sentenced to a minimum term of 3 years and an additional term of 3 years imprisonment.
R v Dunn
3.18 In 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.
3.19 The prosecution called evidence from D's friend (an 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 had "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.
3.20 The jury was directed in relation to both self defence and provocation.
3.21 Upon being convicted of manslaughter, D was sentenced to a minimum term of 7 years and an additional term of 4 years imprisonment.
R v Richards
3.22 D (aged 22) had a close friendship with V (aged 40). V was homosexual and was attracted to D, who was not homosexual and was unaware of the attraction. On the night of the killing, D, one of his friends and V had been drinking heavily, with D also under the influence of drugs. They went back to V's house, where, according to D's friend, V tried to interfere sexually with D while he was unconscious. Upon hearing of the alleged interference, D, who was again under the influence of alcohol and drugs, became distressed and went to V's house to confront him. V admitted to the incident, whereupon D punched V unconscious and then struck him several more times in the face.
3.23 D was found not guilty of murder but guilty of manslaughter by way of provocation. Upon his conviction he was sentenced to a minimum term of 4 and a half years imprisonment, and an additional term of 2 and a half years.
Cases in which the accused entered a plea of guilty
3.24 Eight pleas of guilty were entered in respect of various offences (two of these were cases in which there was more than one accused). One accused pleaded guilty to murder.
3.25 Four (4) accused entered a plea of guilty to manslaughter. In that regard, it should be noted that 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) 135 ALR 1.
3.26 In short, it can be seen that HAD is by no means uncommonly relied upon, even if analysis is confined to homicide cases. No doubt there are countless trials, hearings and sentence matters in the District and Local Courts relating to crimes of violence other than murder in which HAD is raised by the accused, either as the basis of a claim of self defence, or else as part of a plea in mitigation.
HAD and the Defence of Self-Defence
The Law of Self Defence in New South Wales
4.1 The law of self defence acknowledges that a person has a basic right to repel an unlawful attack.
4.2 The leading case on self defence is Zecevic v DPP (Vic) (1987) 162 CLR 645, in which the High Court stated at page 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 had 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."
4.3 Some aspects of the defence should be briefly noted. First, a finding that a person acted in self defence entitles him or her to be acquitted of the offence charged. Second, self defence is a complete defence to all crimes of violence, including murder. Third, the accused bears the onus of pointing to some evidence that may found the defence. However, once the accused has done so, the onus is on the prosecution to disprove the defence beyond reasonable doubt.
4.4 It can be seen that the defence itself has two components. The first is that an honest belief be held on the part of the accused. The second is that that belief be based upon reasonable grounds.
4.5 If the prosecution proves beyond reasonable doubt either that the accused did not have that honest belief, or that that honest belief, although held, was not based upon reasonable grounds, then the accused will be found guilty. Therefore, a person who holds a honest belief that is not based upon reasonable grounds will not be able to succeed in avoiding conviction by way of the defence of self defence.
4.6 In this regard, self defence can be contrasted with provocation. That is because, although the "objective brake" in self defence is that there must be belief based upon reasonable grounds, in provocation the analogous "brake" is the hypothetical response of an ordinary person. This important distinction is discussed further below at paragraph 5.9.
Self defence and HAD in practice
4.7 Two issues should be considered at this stage. The first is whether the Working Party believes that the defence of self defence is appropriate in its current form. The second is whether the operation of the defence in practice gives rise to any concerns.
4.8 As for the first issue, the main concern about self defence in HAD cases focuses upon the nature of the attack or perceived threat said to have emanated from the deceased. In light of the test in Zecevic explained above, one would expect that in murder cases, only the infliction of very serious violence (or the threat of it) would justify an accused killing in self defence. Otherwise, one would expect the jury to be satisfied beyond reasonable doubt that, at the least, any belief held by the accused was not based upon reasonable grounds.
4.9 Given the test described above, the Working Party is of the view that, so long as it retains the requirement of reasonable grounds for the belief of the accused, the content of the law of self defence is appropriate. The law of self defence is capable of applying in HAD cases, and is capable of producing a just result. The Working Party does not suggest any action should be taken in relation to the defence of self defence in HAD cases, because of the objective element of the defence.
4.10 As for the second issue, the main criticism levelled against the operation of self defence in HAD cases centres upon the failure to differentiate between a sexual advance, and a sexual attack. Overseas commentators on HAD have suggested that the courts have not required, nor appeared interested in, the establishment of the difference between a non-violent advance and an attack.
4.11 If the case features evidence of a sexual attack, involving violence, then self defence, in accordance with the test described above, may be a legitimate defence. However, what if the advance is non-violent? Could killing ever be a legitimate response? The Working Party considers that a claim by an accused that a non-violent homosexual advance justified the use of homicidal force in self defence is very difficult to fit within the parameters of the test set out in Zecevic. Could it ever be said that the accused honestly believed on reasonable grounds that it was necessary for him to kill in self defence in these circumstances?
4.12 In each of the NSW HAD cases outlined above commencing at paragraph 3.10, the accused alleged that a struggle ensued between the accused and 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. The victim allegedly attacked or threatened the accused in a way that made it necessary for the accused to retaliate with force.
4.13 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 McKinnon, the accused asserted that he had been attacked by the deceased, and not merely the object of a sexual advance. The defence of self defence was raised within that context.
- In 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 that case there was evidence to the effect that the accused took certain steps to protect the well-being of the deceased.
- In 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. The jury, in not returning a verdict of complete acquittal, must have accepted that argument.
4.14 Ultimately, whether the accused's version of events is accepted or rejected, and whether the prosecution disproved self defence beyond reasonable doubt, is always a matter for the jury to assess in light of all the evidence.
4.15 However, the Working Party has some concerns about the behaviour of juries in this area. Firstly, it should be remembered that in HAD cases the deceased is often the only person present during the killing, and so no contradictory version of events will be available. This problem restricts the tribunal of fact.
4.16 Secondly, in HAD cases a jury may equate a homosexual advance with a homosexual attack, with no distinction being drawn between an offensive, but innocuous, remark or action, and a real sexual assault involving physical force and which calls for the use of self defence. The Working Party suspects that the former appears to have been sufficient to permit a claim of self defence to succeed in at least one case. That is a matter of profound concern.
4.17 It has been suggested that one reason for the success of self defence claims in such cases is hostility to homosexuals, and, in particular, notions about the protection of 'male honour' and 'masculinity':
"That a sexual advance made by a gay man does 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."
4.18 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 coordinated and strategic community education campaign can do much to ensure that claims of self defence are critically examined in this context. This solution is discussed further at paragraph 6.21 below.
HAD and the Defence of Provocation
The law of provocation in NSW
5.1 In NSW, the defence of provocation is contained in section 23 of the Crimes Act, as interpreted by the Courts.
5.2 Section 23 reads:
Trial for murder - provocation
23. (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.
(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:
(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;
(b) the act or omission causing death was not an act done or omitted suddenly; or
(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.
(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.
(5) This section does not exclude or limit any defence to a charge of murder.
5.3 Some aspects of the defence should be briefly noted. As with self defence, the accused bears the onus of presenting some evidence in support of the defence. Again, as with self defence, once raised by the accused, the defence must be disproven by the prosecution beyond reasonable doubt. However, unlike self defence, provocation does not lead to an outright acquittal. Rather, it leads to a conviction for manslaughter, an offence of homicide that carries a maximum penalty of 25 years penal servitude.
5.4 It has been said that 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.
5.5 The combined effect of the section and the characteristics of the defence described above is that the defence of provocation fails, and the prosecution is entitled to a conviction for murder, if the prosecution establishes any one or more of the following beyond reasonable doubt:
- that the act of the accused which caused the death of the deceased did not result from a loss of self-control;
- 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
- that 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 his or her self-control as to form the intention to kill or to inflict grievous bodily harm upon the deceased.
5.6 The defence as a whole, containing as it does the phrase, "An ordinary person in the position of the accused" includes both subjective and objective elements.
5.7 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, and is therefore subjective.
5.8 However, whether provocation of that gravity could cause an ordinary person to lose self-control is to be 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.
5.9 This "objective" component of the defence is problematic. It has the potential to operate in a way that gives weight to perceived homophobia in cases in which HAD is raised.
5.10 It can be seen that the law as it stands requires a juror to make a judgment about the response that could be evinced from an ordinary person. It should be understood that, if a juror were to find that ordinary persons are homophobic, then that juror, no matter how fair-minded and free of homophobia he or she may be, would be obliged to take that perceived homophobia into account in determining whether or not the defence of provocation had succeeded or failed. That can hardly be a satisfactory position.
5.11 In this regard, provocation may be sharply contrasted with self defence. In the latter, the objective issue is whether there were reasonable grounds for the belief of the accused; in the former, the question is the response of an ordinary (and perhaps unreasonable) person.
The judgment in Green v The Queen
5.12 The High Court in Green v The Queen recently refused to rule that a non-violent homosexual advance was not conduct sufficient to ground the partial defence of provocation. The case notionally turned on the admissibility of evidence of the appellant's special sensitivities to sexual attacks, but ultimately reflected a failure by the majority judges to explicitly distinguish between a sexual attack and a non-violent sexual advance.
5.13 In particular, they held that evidence as to special or aggravated sensitivity to sexual advances due to a family history was relevant to both s23(2) (a) and (b) of the Crimes Act NSW. The requirement in s23(2) (b) that "the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm upon the deceased" was to be read broadly to include the accused's claimed special sensitivity to sexual "abuse" because of his father's alleged sexual abuse of his sisters.
5.14 The majority took the view that a reasonable jury would be entitled to consider that an ordinary person in the position of the accused could have formed an intention to kill or to inflict grievous bodily harm by a non-violent homosexual advance on the part of the deceased. In coming to that view they rejected (amongst other things) the view of Priestly J A for the majority of the NSW Court of Criminal Appeal when he said:
"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. 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)."
5.15 Brennan CJ appears to have adopted the dissent of Smart J in the NSW Court of Criminal Appeal when he said
"Some ordinary men would feel great revulsion at the homosexual advances being persisted with under the circumstances and could be induced to so far lose their self control as to form the intention to and inflict grievous bodily harm. They would regard it as a serious and gross violation of their body and their person."
5.16 The main point of difference between the majority and the minority of Kirby J and Gummow J in Green appears to be whether as a matter of law no reasonable jury could be satisfied beyond reasonable doubt that the conduct of the accused was of such a nature as to have induced the admittedly hypothetical ordinary person in the position of the accused to so far lose self-control so as to form an intention to kill or to inflict grievous bodily harm.
5.17 Both dissenting judges supported their view on the basis of their assessment of contemporary community standards and the demands of equality before the law.
5.18 Kirby J noted the social context and the special problems associated with fatal violence as a response to a non-violent homosexual advance. After a thorough examination of the history of provocation at common law and the policy behind the amendments to s23 he concluded that:
"For the law to accept that a non-violent sexual advance, without more, by a man to a man could induce in an ordinary person such a reduction of self-control as to occasion the formation of an intent to kill, or to cause grievous bodily harm, would sit ill with contemporary legal, educative, and policing efforts designed to remove such violent responses from society, grounded as they are in irrational hatred and fear.
In my view, the 'ordinary person' in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it at first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use such physical force as was necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape. But the notion that the ordinary 22 year old male (the age of the accused) in Australia today would so lose his self-control as to form an intent to kill or grievously to injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia."
5.19 Gummow J took the somewhat narrower route to reach the same conclusion. He took the view that the phrase "in the position of the accused" in S23(2)(b) to give effect to the requirement of the hypothetical ordinary person did not include the whole history of the accused, but only those circumstances of space and time and character and attributes such as age and gender. In this case, for Gummow J, the evidence of the father's conduct was irrelevant to the provocation as it was not the conduct of the deceased. He went on to suggest that even if an accused (which was not in the case here) were to claim that he was particularly revolted by the homosexual advance of the deceased, this would not be sufficient in itself to justify a reasonable jury finding beyond reasonable doubt that the ordinary person in the position of the accused would have so responded as to form an intent to kill or to inflict grievous bodily harm:
"Had the evidence of the accused in this case been that he found the conduct of the deceased up to the point where the accused lost his self-control offensive an provocative in an extreme degree by reason of his revulsion to such activity, a different question would have arisen in the application of s23(2)(b). The answer to it may well have been that suggested by Priestley J A. His Honour said that whilst it is easy to see that many an ordinary person in the position in which the accused was when the deceased was making his physical advances would have reacted indignantly, throwing off the deceased and perhaps doing so with blows.
"I do not think however that the ordinary person could have been induced by the deceased's conduct so far to lose his self-control as to have formed an intent to kill or inflict bodily harm upon [the deceased]"
In approaching the matter in this fashion, Priestley J A was reflecting the reasoning of this Court in Stingel that, subject to the qualification in relation to age , the extent of the power of self-control of the hypothetical ordinary person is unaffected by personal characteristics or attributes of the particular accused but is affected by contemporary conditions and attitudes." (page 41)
5.20 The majority in the High Court failed to address the concerns of this Working Party in relation to a non-violent homosexual advance. It is worth noting that, in his consideration of the Discussion Paper that preceded this Report, Kirby J noted that it is open to the Parliament of NSW to address the problems identified by that document by legislative reform. A solution of that kind is discussed at paragraph 6.4 below.
Green and Proportionality
5.21 The common law required as an element of the objective component of the partial defence of provocation that the mode of retaliation must bear a reasonable relationship to the provocation offered. A strict or literal reading of this requirement was said to be problematic as the defence required that firstly the accused had in fact lost his or her self-control and then to have acted reasonably while suffering that loss of self -control.
5.22 The requirement of proportionality as a rule of law has clearly been abolished by s23 as amended. However this does not mean that relationship between the provocation offered by the deceased and the reaction of the accused is irrelevant to the defence of provocation.
5.23 Gummow J in Green makes the point that while under the common law and the old s23 the matter of proportionality was absorbed into the application of the test of the affect of the deceased's conduct upon the ordinary person. He makes the interesting observation that s23 (2) (b) may be read as specifically stating the need for an intent to kill or to cause grievous bodily harm " does not allow consideration of the actual act or omission of the accused causing death and hence there is no occasion for a consideration of the proportion between those acts and omissions and the conduct of the deceased."
5.24 The abolition of the rule of law in relation to proportionality should not be confused with the clear requirement that (in the words of Gummow J):
"The provocation must be capable of precipitating or inducing an ordinary person in the position of the accused, that is to say with the beliefs or state of mind of the accused, concerning certain events in his family history, to have so far lost self-control as to have formed an intent to kill the deceased or to inflict grievous bodily harm upon him. "
5.25 Gummow J goes on to conclude that:
"The ultimate question presented by S23(2)(b) in this case relates to the possible effect of the offered provocation, understood and assessed with respect to its gravity, by reference to the position of the deceased, upon the power of self-control of a truly hypothetical "ordinary person". Such an ordinary person with the personal beliefs and attitudes asserted by the accused with respect to the conduct of his father during his childhood would still be expected to have retained, in the circumstances of this case, the necessary degree of self-control as not to have formed an intent to kill or to inflict grievous bodily harm upon the deceased.
Any other construction of S23(2)(b) which, when applied to this case produced a different result, would undermine principles of equality before law and individual responsibility. Such an outcome is not lightly to be attributed to the legislature." (42)
5.26 Kirby and Gummow JJ appear to agree that to give effect to the objective component of the defence of provocation a trial judge should consider the threshold question; namely, that any jury, acting reasonably, could not have failed to be satisfied beyond reasonable doubt that the nature of the conduct of the deceased was insufficient to deprive any hypothetical ordinary person in the position of the accused of the power of self-control to the extent that an intent to kill or inflict grievous bodily harm was formed.
Provocation and HAD in Practice
5.27 In each of the NSW HAD cases the jury was directed in relation to provocation. A verdict of manslaughter was returned in three:- R v Turner, R v Dunn and R v Richards. 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 to have occurred 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.
- R v Richards: V tried to "sexually interfere" with D while he has unconscious.
5.28 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).
5.29 On the one hand, it is suggested it should not.  To allow a non-violent advance to amount to sufficient provocation is wrong because it reinforces the notion that fear, revulsion or hostility, strong enough to lead to violence, 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."  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." 
5.30 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 does not otherwise constitute an assault or some other unlawful act.
5.31 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'.
5.32 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.  Provocation does not justify the killing. It is a partial excuse which reduces the offence from murder to manslaughter. Therefore, it is argued, 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. 
The NSW Law Reform Commission Report on Provocation
5.33 In the report "Partial Defences to Murder: Provocation and Infanticide", the New South Wales Law Reform Commission (hereafter referred to as "the LRC") examined the partial defence of provocation and its application to a range of areas, including non-violent homosexual advance. The LRC noted that the Working Party was already looking at the issue at that time and in detail.
5.34 The LRC examined a range of submissions in relation to the partial defence of provocation and recommended that the defence be retained. This was based on a belief that some offenders are less culpable than others because their mental state has been compromised by a loss of self control occasioned by a great anger or fear. The LRC recognised that there are problems with the defence of provocation but suggested that these can be overcome by a re-formulation of the 'ordinary person' test in s23(2)(b).
5.35 The LRC briefly considered HAD and declined to recommend legislative reform. It suggested that any attempt to exclude non-violent sexual advance from provocation would to be impose unworkable restrictions upon the legislation, and would automatically exclude certain cases from being considered on their merits.
5.36 The existing test in relation to provocation has been criticised for being too complex, with evidence pertaining to one element having to be ignored for another. Similarly, the ordinary person test has been said to be discriminatory in that the 'ordinary person' bears no relation to a vast number of people. The test is also dangerous in relation to homosexual advance, in that it may permit the presupposition that the ordinary person is violently homophobic.
5.37 To overcome these difficulties, the LRC has suggested a test which requires the jury to apply their understanding of community standards on a case by case basis. The LRC recognised that there is a possibility of a prejudiced jury but insisted that this risk is inherent in the jury system. The re-formulated tests ask the jury to consider, after loss of self control is established, whether the accused, in light of all of his or her characteristics and circumstances, should be excused for so far having lost control as to have formed an intention to kill or inflict grievous bodily harm on the victim.
5.38 The difficulty with this approach is that, in an attempt to simplify the defence, the LRC has pared it down so much as to give the jury very little guidance. The jury are left to make a value judgment of a very large scale. This may actually make the situation in relation to HAD worse, since it is more open ended, and thus more vulnerable to societal homophobia. Despite the LRC's assertion that the risk of a prejudiced jury is inherent in the system, the Working Party fears that this test, which gives the jury no direction, would only intensify the problem.
5.39 The LRC claims that the position of both women and homosexual victims has been vastly improved since the abolition of unsworn dock statements. The Commission noted that allegations of provocative conduct can now be the subject of cross examination; and evidence of former abuse or threats may be introduced by the prosecution. However, this argument fails to recognise that the main source of contrary evidence, namely the victim, is unavailable to counter any evidence or testimony.
5.40 Ultimately, the Working Party is of the opinion that the solution suggested by the LRC is not appropriate in relation to HAD. Even if the re-formulated test works the way the LRC intends it to, and the jury reflects the community's sympathies and concerns, the problems with HAD will still exist. A jury might apply the standards of a prejudiced community, thus reflecting and perpetuating the idea that homosexual victims deserve the violence they receive.
6.1 It seems to the Working Party that there are two areas in which reform is required. One area is that of criminal law and procedure, and is discussed below commencing at para 6.4. Three recommendations are made.
6.2 The other area relates to the various government agencies that play a role, whether direct or indirect, within the criminal justice system. Six recommendations are made.
6.3 None of the recommended courses of action can be expected to provide an overnight solution to the problems which have been encountered with regard to HAD. However, in the longer term, and taken as a whole, the Working Party is of the opinion that they will go quite a way towards redressing injustice.
Legislative exclusion of a non-violent homosexual advance from the defence of provocation
6.4 The decision in Green is analysed in detail commencing at paragraph 5.12 above, and that analysis will not be revisited at length here. In short, the minority judgments were to the effect that a non-violent homosexual advance cannot found the defence of provocation. Although Kirby J and Gummow J adopted different reasons, they arrived at the same result. However, the majority judgment to the contrary remains the law in this State. Change to that position may only be achieved by way of legislative reform of the defence.
6.5 The Working Party has become convinced that such change is necessary. The retention of a partial defence based on a homicidal response to a non-violent homosexual advance cannot, in the opinion of the Working Party, be countenanced any longer. If the High Court, by a narrow majority, is not prepared to interpret the legislation in question as excluding such a possibility, then the legislation itself should be changed by the NSW Parliament.
6.6 Indeed, it is worth noting that that is precisely what happened in 1982: the statute as interpreted by the courts was seen to be unsatisfactory; in response, Parliament took the initiative and very substantially amended it.
6.7 Accordingly, the Working Party recommends the exclusion of a non-violent homosexual advance from forming the basis of the defence of provocation, by way of legislative reform of section 23 of the NSW Crimes Act.
6.8 It may be said in response to this recommendation of the Working Party that a homicidal response to any form of non-violent sexual advance, not just a homosexual one, should be excluded from the defence of provocation. That may well be true; in response, the Working Party makes two brief points. First, it was asked by the Attorney General to consider HAD only, not the more general question of responses to all forms of non-violent sexual advance. Second, although the Working Party concedes that there may well be cases of concern beyond HAD, to its knowledge it is only within the context of HAD that broad and on-going concern has arisen.
6.9 It may also be said in response to this recommendation that an attempt to exclude many other anti-social attributes from the defence of provocation should be made. Why focus on homphobia alone? What about racism, or sexism? Again, the argument may be well-founded; again, the Working Party draws attention to its terms of reference, and to the events that led up to its establishment.
6.10 Finally, it may be said in response to the recommendation that it would be a bold or radical step to limit the defence in this way. The Working Party accepts that statement. However, when the criminal justice system is seen to be failing those whom it is designed to protect, the Working Party suggests that innovative measures should be taken without hesitation.
The "Court of Morals" Direction
6.11 In the Discussion Paper, the Working Party proposed a direction that should be given in any trial of a violent offence in which the unusual sexuality of the victim has been placed before the jury. The direction would be to the effect that jurors, as judges of the facts in the case, should come to their decision without reference to any personal sympathies or animosity they may have towards the victim or the accused. Furthermore, the directions should be to the effect that it is not for the jury to determine whether they think the behaviour of the victim is morally acceptable, but whether there is culpability on the facts.
6.12 The direction would be along the following lines:
You may conclude that the deceased's (or alleged victim'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 alleged victim) 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 alleged victim) or the accused.
6.13 A similar suggestion  was positively received in the submissions responding to the Discussion Paper. The Working Party understands that such a direction is already often given by many judges in such circumstances. The Working Party continues to support its inclusion in appropriate trials, and recommends that the Attorney General write to the Judicial Committee suggesting its inclusion in the Judges' Benchbooks as a standard direction available to them.
6.14 A significant number of discriminatory laws, which have a major impact on the lives of gays and lesbians, continue to emphasise and isolate members of the homosexual community as deserving lesser rights than other citizens under the laws of this State. 
6.15 Furthermore, in New South Wales, the age of consent for heterosexual sexual contact is, generally speaking, sixteen years of age. The same is true of lesbian sexual contact. However, for sexual contact between two males, the age of consent is eighteen years of age. The statutory defences about mistake of age of the victim in consenting sexual cases specifically exclude male to male sexual contact. Furthermore, the maximum penalties applicable for sexual offences committed by males against males are consistently higher than the maximum penalties applicable to certain identical offences committed by males against females, or females against females.
6.16 The criminal justice system thereby indirectly asserts to the community that male to male sexual contact is not to be placed on the same footing as other forms of sexual expression, and not to be given the same degree of approval.
6.17 In particular, it can also 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 characterise 16 and 17 year old males as incapable of making decisions with respect to their sexual behaviour when the opposite is the legally accepted position for 16 and 17 year old females, whether they engage in heterosexual or lesbian sexual contact. Similarly, males of 16 and 17 years of age are held to be capable of making decisions in relation to heterosexual behaviour; it is only with respect to homosexual activity that they are judged incompetent.
6.18 The question of the higher age of consent, and the message that it indirectly sends, is particularly relevant in the context of HAD cases, in which the accused is very often substantially younger than the deceased.
6.19 So long as the criminal justice system sends messages such as these to the community, it is naive to expect citizens sitting as jurors to approach their task in an atmosphere entirely free of discrimination against gay sexuality. Indeed, it would be surprising if they were to do so in such a legislative context.
6.20 Accordingly, as part of its brief to consider the phenomenon of HAD, the Working Party recommends that the age of consent applicable to various forms of sexual contact be completely non-discriminatory with regard to sexuality. More generally, any other provisions in the laws of this state that discriminate against persons on the basis of their gay or lesbian sexuality should be abolished.
Crime Prevention Division campaign
6.21 There appears to be a general consensus about the importance of community perceptions of the issues that may arise in HAD cases. That is particularly so because of the central position of the jury. The Working Party came to the view that further specific strategies should be introduced by the government to combat homophobic violence in the community.
6.22 In order to reduce violence against lesbians and gay men, innovative strategies that focus on the values which contribute to the acceptance of such behaviour are required. The Working Party recognises that, without endeavours directed towards broader cultural change that target public behaviour and attitudes, the problem of homophobic violence will continue to exist.
6.23 The success of broad social change campaigns based in social marketing strategies and methodologies is well documented.  Australian HIV/AIDS Safe Sex campaigns are a particularly pertinent example, with their remarkable success at eliciting behavioural changes in sexual practices across several different target audiences by utilising social marketing strategies. The "Quit for Life" anti-smoking campaign, "Drink. Drunk. The Difference is U", and "Stop. Revive. Survive" are other local examples of successful social marketing campaigns.
6.24 Another example of successful social marketing is the Anti-Violence Project's "Homophobia: What Are You Scared of?" Campaign. This campaign seeks to contribute to the development of social and educational environments that discourage participation in homophobic violence, and to encourage young people to make a stand against this violence. Rather than focus on radical attitudinal change, the campaign utilises social marketing strategies in order to develop a social change campaign that focuses on behavioural change. The campaign achieves this by centering itself around a strong anti-violence message or theme and asking the target audience to speak out against violence and harassment directed at lesbians and gays just as they would speak out against other forms of violence.
6.25 The Working Party notes that campaign, and expresses its strong support for it.
6.26 The Working Party recommends that the Crime Prevention Division of the Attorney General's Department be funded to develop a further community education strategy. This strategy should be developed in consultation with representatives of the relevant Government and non-government agencies. It is recommended that this programme be specifically focused on the unacceptable nature of homophobic violence, and be a part of the Crime Prevention Division's other anti-violence programmes.
6.27 The Working Party therefore recommends that a specific campaign be launched to make it clear that violence is an unacceptable response, not only to homosexuality generally, but also to a non-violent homosexual advance in particular.
Monitoring of HAD by Police and the DPP
6.28 In light of the rising level of violence against gays and lesbians as reported by the Australian Institute of Criminology, and the prevalence of HAD cases (both fatal and non-fatal), the Working Party recommends that the Police Service and the Office of the Director of Public Prosecutions:
- continue to monitor the incidence of HAD cases; and
- provide this information on an ongoing basis to the newly formed Attorney-General's HAD Monitoring Committee (see the next recommendation).
Monitoring Committee convened by the Attorney General's Department
6.29 The Working Party recommends that the Attorney-General establish a HAD Monitoring Committee, chaired by the Criminal Law Review Division, to meet on a quarterly basis, to monitor and review:
- records and statistics of HAD cases collected by Justice agencies;
- individual HAD cases; and
- recent developments in the relevant law, including the nature of directions given by judges.
6.30 The Monitoring Committee should have the power to make policy recommendations to the Attorney-General, as appropriate. The membership of the Monitoring Committee should be based generally upon the membership of the Working Party.
Gay and lesbian issues liaison officer within the Attorney General's Department
6.31 The Working Party noted the success of the position of Police Gay and Lesbian Liaison Client Consultant within the Police Service in the handling of issues that are particularly related or relevant to gays and lesbians. This position was considered to be a very useful contact point for other Government and community organisations.
6.32 The Working Party recommends that an appropriate officer of the Attorney-General's staff be designated a Gay and Lesbian Liaison Officer for the Department. That person would be responsible for referring inquiries and complaints to the most relevant part of the Department, and would follow up on gay and lesbian related issues. It is not intended that this person be concerned solely with cases of violence against gay and lesbian persons, rather that they act as a referral and directing source. Similarly, it is not necessary that this person identifies as a member of the gay and lesbian community, just that he or she is empathetic to gay and lesbian related issues.
6.33 The Working Party is of the view that it may be of assistance to individual judicial officers to be provided with information about issues related to HAD generally. It notes that the Judicial Commission currently conducts a programme of judicial education which covers culture and gender awareness. The Working Party recommends that the Judicial Commission consider extending its educational programme so as to provide information on homosexuality and HAD issues to all judges and magistrates who sit in the criminal jurisdiction.
6.34 The Working Party also recommends that a short article on HAD and related issues be prepared by the Criminal Law Review Division and submitted for publication in the Judicial Officers' Bulletin. That Bulletin is circulated by the Judicial Commission to all members of the judiciary in New South Wales.
6.35 The Working Party noted that the quality of police investigation can affect the strength or weakness of the prosecution case. This is particularly so in HAD cases, in that police investigation may reveal whether the allegation of a homosexual advance is fictitious.
6.36 The Working Party recommended in the Discussion Paper that relevant police receive training on homosexuality and HAD issues. The Working Party continues to support this suggestion, but notes that it understands that Homicide Detectives have become increasingly expert in dealing with cases involving HAD. This development is to be commended, and the Working Party supports its continuation.
6.37 The Working Party also considered it important that police investigate and establish, so far as is possible, whether the accused in HAD cases had singled out the victim for a different purpose, as opposed to merely accepting an assertion by the accused of a homosexual advance.
Options for Consideration
6.38 The proposed solutions noted in the preceding section are measures which the Committee recommends be implemented. In contrast, the suggestions made in the following section of the report are not forcefully recommended. Instead, they are offered as options to be considered and discussed further.
Legislation Mandating the "Court of Morals" Direction
6.39 The Working Party believes that, as a first step, it is not inappropriate for the Attorney to seek to have the direction along these lines included in the Benchbooks. However, if the suggestion is rejected for whatever reason, there should be consideration given to legislative reform pertaining to the direction.
6.40 Although it is a little uncommon for the legislature to mandate directions that are to be given by judges to juries in criminal trials, it is by no means unheard of. Since 1981, section 405B of the Crimes Act has required a warning from judge to jury in sexual assault trials once certain factual precondition exist. Similarly, in sections 114 and 165 of the Evidence Act, there are number of warnings that must be given in certain situations.
6.41 In Victoria, a trial judge must give a jury certain directions in the nature of a warning in sexual assault trials in which consent is an issue.
6.42 If the suggested direction is not utilised in appropriate cases by trial judges, the Working Party recommends that the Attorney consider the option of legislative reform requiring the giving of the "Court of Morals" direction.
Abolition of the defence of provocation?
6.43 It could said that the first recommendation discussed at paragraph 6.4 and following is really well down the path of abolishing the defence of provocation completely. That course has its supporters, including judges, academics, and legal practitioners.
6.44 It should be clearly understood that the Working Party is NOT recommending the abolition of the defence; indeed, some members are strongly opposed to abolition of the defence. However, bearing in mind that so much of this Report is concerned with problems encountered with the defence in the context of HAD, and that the abolition of the defence is currently a topic of debate about criminal law reform it would be inappropriate not to raise the option in this Report.
6.45 Hereafter, the arguments for and against abolition are briefly summarised. They are examined from the position of the Working Party's particular concern with HAD.
6.46 The main arguments for abolition are as follows.
6.47 The defence of provocation requires that the defendant so far lose control as to form an intention to kill or inflict grievous bodily harm. There is a logical inconsistency in requiring that a person lose self control and act with intent. Similarly, if a person intended to kill or inflict grievous bodily harm it is not clear why their lack of self control at that time should make a difference.
6.48 In other common law jurisdictions, other offences incorporate considerations of provocation in the process of sentencing. Murder used to be an exception in that it had a fixed sentence but now that it has a discretionary sentencing procedure this justification is no longer appropriate. Judges can now consider whether provocation received by the defendant should act to reduce the sentence.
6.49 The defence characterises hot-blooded killers as less culpable than cold-blooded killers, although both have committed violent acts. There is no apparent reason why people who kill in anger or fear, but still with intent, should be treated more lightly than people who kill only with intent.
6.50 The defence of provocation is said to be gender biased and unjust in its application since it was created to address a typically male pattern of aggressive behaviour. Although New South Wales and ACT no longer have any statutory requirement of suddenness and Battered Woman Syndrome is increasingly recognised, it may be argued that provocation is inherently inappropriate for women. In particular, Battered Woman Syndrome has been criticised for forcing women to adopt a passive and stereotyped image in order to utilise the defence. This, and other adjustments to the defence, are only attempts to correct a doctrine that was not designed for women.
6.51 The rationale behind the defence is unclear as it seems to be an uneasy fusion of justification and excuse. To characterise the defence as justification would be to condone acts of violence, which would not be acceptable in a modern society but to characterise it as an excuse is also problematic. An excuse based rationale gives priority to loss of self control, which is criticised in paragraph 6.49 above. It is also problematic that provocation is only applied to certain offences and its application can be seen as a reflection of community prejudice rather than sympathy.
6.52 The main arguments against abolition are as follows.
6.53 In support of the recommendation that provocation be retained are arguments distinguishing between 'hot-blooded' and cold-blooded' killers. These arguments suggest that the person who kills in anger or fear is less culpable since their free will is impeded to the extent that they were provoked into committing the violent act.
6.54 The defence of provocation requires the jury, acting as representatives of the community, to apply its understanding of public perceptions. The defence was created to be lenient in cases where the community would sympathise with the reaction of the defendant. Thus the jury are fulfilling an important role which would not be as well performed by the judge, who is necessarily less representative. To remove this process may be to remove an important safeguard for the defendant.
6.55 It is argued that it is inappropriate to impose the stigma of a murder conviction on a person whose act is not as grave as that of a murderer - also, to remove provocation is to blur the distinction between murder and manslaughter and thus make murder convictions appear to be less serious.
6.56 Furthermore, there is a risk that, if provocation is abolished, juries will be reluctant to convict people of murder, since they may feel that the defendant deserves conviction for a lesser offence. Indeed, there is a risk that people who would otherwise have been convicted of manslaughter may be perversely acquitted entirely.
6.57 That could be a particular problem in HAD cases. It is not difficult to imagine a homophobic jury being tempted to return a perverse verdict of acquittal, even though satisfied that self defence had been negatived by the prosecution, if denied the "halfway house" of a conviction for manslaughter by way of provocation.
6.58 The defence represents an important function of the jury - that of judging the culpability of members of their community. To remove this function from the jury would be to decrease public confidence in the administration of justice and in the judicial system as a whole.
6.59 Whether provocation should be completely abolished will remain a controversial question for some time. The Working Party is content to note the arguments for and against, but otherwise to confine itself to its specific recommendation to exclude a non-violent homosexual advance.
7.1 Grappling with the phenomenon of Homosexual Advance Defence has involved addressing issues perennial to the criminal justice system. Classically, how can the chances be improved of obtaining justice in social conditions predisposing to injustice in certain circumstances, without adversely affecting the chances of obtaining justice in other cases?
7.2 This is not the first time that there has been recognition of flaws in the criminal justice system when it comes to deal with people from stigmatised groups-such as black American homicide victims in the United States 'Deep South' only a few decades ago--or those whose different situation needs to be accommodated in order for the process to produce a more just result-such as female homicide offenders who were victims of prolonged domestic violence.
7.3 Recognition by stakeholders in the criminal justice process of the prevalence of false stereotypes of 'predatory homosexuals', and addressing those stereotypes, will go a long way to reducing the risk of unjust acquittals for offences of violence committed against people because of their perceived different sexuality.
7.4 Ultimately, however, if Australia is to profess to have a civilised criminal justice system, then it must be a standard of the law that claims of non-violent homosexual advances can neither excuse fatal violence nor mitigate any offence of violence.
- Comstock GD "Developments - Sexual Orientation and the Law" (1989) 102 Harvard Law Review 1541 at 1542
- Mason G Violence Against Lesbians and Gay Men Australian Institute of Criminology Canberra November 1993
- 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
- NSW Police Serve ibid
- See Lesbian and Gay Anti-Violence Project Homosexual Panic Defence And Other Family Values Sydney May 1995
- 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 Galbraith L "He Touched Me!" Outrage Melbourne No.130 March 1994 at 14
- But see Gillies P Criminal Law fourth edition Law Book Company 1997 at 315, where the question of whether the accused's honest albeit unreasonable belief in the need to act in self defence should also ground the defence is considered
- Comstock GD "Dismantling the Homosexual Panic Defense" (1992) 2 Law and Sexuality 81 at 97
- 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
- Comstock n8 at 97
- (1997) 148 ALR 659; 72 ALJR 19. References are to the Australian Law Reports
- See the judgment of Brennan CJ at page 664
- At page 665
- At page 713
- At page 695
- At page 713
- At page 690
- at page 693
- At page 696
- See Mison R "Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation" 80 Cal L Rev 133 (1992)
- Ibid at 160
- Ibid at 174
- 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
- Ibid at 753-756
- In the Discussion Paper, the direction was confined to homicide cases by its terms. The Working Party sees no reason why it should not be given in trials of all offences of violence
- Human Tissue Act 1983; Coroners Act 1980; Wills Probate and Administration Act 1988; Family Provisions Act 1982; Victims Compensation Act 1987; Safety Rehabilitation and Compensation Act 1988; 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 to Relatives Act 1897; see generally The Bride Wore Pink, A Discussion Paper, Lesbian & Gay Legal Rights Service (NSW), February 1994
- Crimes Act 1900 s 66C
- Crimes Act 1900 s78K
- See, for example, Philip Kotler and Eduardo L. Roberto, Social Marketing: Strategies of Changing Public Behaviour, Collier Macmillan Publishers, London, 1989
- See the MCCOC Discussion Paper regarding Fatal Offences, released June 1998