NSW provocation inquiry hears call to remove ‘gay panic’

The first day of a NSW parliamentary inquiry into the use of the provocation defence in murder trials has heard calls from the NSW Gay and Lesbian Rights Lobby (GLRL) and others to remove the option of the so-called ‘gay panic’ or ‘homosexual advance defence’ which can potentially reduce a charge of murder to manslaughter.

Common law in NSW currently provides a partial defence to murder if the accused can prove they were provoked into killing someone, and can lead to the lesser charge of manslaughter.

The current parliamentary inquiry headed by Christian Democrat Party leader Fred Nile was established following widespread community anger in June over the sentence handed to an Indian-born man, Chamanjot Singh, who had slit his wife’s throat.

Singh was jailed for at least six years, after a jury found him guilty of manslaughter instead of murder on the grounds he was provoked by his wife’s behaviour which involved beliefs she had been unfaithful and intended to leave him.

Appearing yesterday morning alongside the Inner City Legal Centre, Justin Koonin, co-convener for the GLRL, said while issues around provocation were much broader than just the homosexual advance defence, it nevertheless remained of great concern to the gay and lesbian community. 

“Our position comes from the belief that a non-violent sexual advance should never, by itself, form the basis for a partial defence against murder – regardless of the sex or gender of the people involved,” Koonin said.

“In practice, the defence has only ever been applied in the case of a non-violent advance from a male to another male – eleven times between 1990 and 2004. It has never been applied to an advance from a male to a female, a female to a male, a female to a female – and nor should it be.”

Koonin said such glaring statistics clearly showed gay males were receiving differential treatment under the legal system.

“The question that needs to be addressed is whether a non-violent sexual advance is so grave and abhorrent an offence that the hypothetical ‘ordinary person in the position of the accused’ would have been induced to form an intent to kill or to inflict grievous bodily harm,” Koonin said.

“It is difficult to see how that is the case today, if indeed it ever was. A society which is close to providing legislative equality for gay and lesbian people, and in which, I think it is fair to say, most people accept gay and lesbian people as equals, is not a society in which the ‘ordinary person’ would be driven to kill by an unwanted non-violent advance.”

Also appearing at the inquiry yesterday was NSW Police Assistant Commissioner Mark Murdoch who argued for laws dealing with provocation to be reformed so that the defence may only be used when the alleged provocation itself was extreme, criminal and/or violent.

“Words alone should not amount to provocation, no matter the intensity, ferocity or malice,” Murdoch said.

“For goodness sake … I would like to think in the 21st century we are beyond the fact that if adultery occurs in a marriage or between partners, that is not sufficient reason in itself to take someone’s life.”

Laws pertaining to provocation in NSW were first adopted as legislation in 1873 and later reproduced in the Crimes Act 1900.

Provocation laws across Australia have come under strong scrutiny in recent years, with Tasmania the first state to abolish it in 2003. Victoria also abolished the defence in 2005 as did Western Australia in 2008. In 2004 and 2006, the ACT and Northern Territory respectively enacted provisions to exclude non-violent sexual advances from forming the basis of a defence of provocation.

Along with NSW, South Australia continues to allow the use of provocation as a partial defence to murder with the law in Queensland also allowing accused persons to use it in cases not only involving murder but also assault. Unlike in NSW, the onus however falls upon the defence in Queensland trials to prove that provocation took place although many legal and gay advocates say this change has not entirely closed the “loophole” in that state.

For more information, visit www.parliament.nsw.gov.au/provocationinquiry