September 1998
Table of Contents
- Summary of Findings
- The Members of the Working Party
- Introduction
- Background about HAD (Homosexual Advance Defence)
- HAD Cases in Australia
- HAD and the Defence of Self-Defence
- HAD and the Defence of Provocation
- Solutions
- Conclusions
- Footnotes
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
Introduction
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.
1.7 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.
1.10 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. [1]
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.[2] 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) .[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 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.[4]
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.[5]
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
Complete acquittal / 2 / McKinnon
Bonner
Guilty of murder / 2 / Green—NB new trial ordered
CD
Not guilty of murder but guilty of manslaughter / 4 / Turner
Dunn
Chaouk
Richards
Pleas of Guilty
Offence / Number / Name
Murder / 1 / McGregor
Manslaughter / 4 / Jacky
G Diamond
PA
Chapman
Malicious Wounding / 1 / Stevenson
Harbour and Assist / 1 / B Diamond
Accessory after the fact to murder / 1 / JLA
Other
no-billed by DPP / 1 / Hokin
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[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 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.