Tuesday, 24 July 2012

To the Premier

TO The Premier, the Hon Mr. Campbell Newman,

Dear Sir,

Thank you for your assurance that your Government takes seriously the well-being of the community. I also note your commitment to get tough on crime and its punishment. 

I assure you, I did not enter into this petition campaign lightly.

Firstly I must say that the common law defence of homosexual advance is very real and is illustrated by the infamous case of Malcom Thomas Green v The Queen [1997] HCA 50. It is real and the dissenting judge in that case was the then  Kirby J who ably highlighted what was very wrong with the use of this argument, but he was in the minority.  

Did you know that two separate cases in the space of a year in this same area of Maryborough, involved two unrelated and separate cases where an individual male was set upon by two stronger men and was repeatedly bashed in the most savage way and then, (to add to the horror), were left unaided, exposed to the elements and died.  (R v Meerdink and Pearce, sentenced on 13 May 2010, for an offence of manslaughter committed on or about 4 July 2008, involving the killing of Wayne Ruks; the second being R v Peterson and Smith, who were sentenced on 14 October 2011 in Maryborough circuit court for the offence of manslaughter of Stephen Ward). It is so shocking.  And did you know that in BOTH these cases, two separate cases in the same area in the space of a trial year!!??, when the assailants were caught and charged with murder, in each of those two separate cases one of the assailants in both cases claimed that the reason for their horrific and violent action was that the man had (allegedly) TOUCHED them in a homosexual way, that is they allegedly made a homosexual advance at them and that the assailant had then lost control and bashed them repeatedly as a response to this purported non-violent homosexual advance and after the bashing left them effectively unaided and the victims dies. IN both of these two separate cases an assailant also added that they had been abused as a child and but it is not clear whether any evidence for these assertions was given and how this justified the bashing of an adult who allegedly touched another adult.  

I must admit to you that two cases in two years is unbelievable.  My honest reaction was “What are the chances of the same kind of offence with the same kind of excuse in the space of a year of trials????"    It was clear that this was extremely concerning.  It is really playing with words to then say that the cases did not necessarily finally turn on these excuses and defences because these circumstances “got in” and most certainly came up in front of a jury in both cases. And as the Victorian Law Reform commission pointed out, Juries does not have to give reasons for their findings and one cannot definitively say therefore how any potentially pejorative matters that are put forward a brutal bashing death. Whenever it is raised by someone that they responded to a (alleged but not proved)  relatively minor physical touching  with such violence  to a Homosexual advance, it could potentially in any future cases this is raised in either by formal use of the defence or by way of ‘circumtances’  or whatever, it has a terrible potential to tap deep biases and prejudices  and leave the profound impression that this excessive violence and loss of control was somehow either warranted at least somehow explanatory of the behaviour.  In my firm belief and the belief of two hundred thousand petitioners, this is not at all acceptable and should not be permitted in  any future cases. Only further legislative drafting would effect this.    

Did you know that in the Ruks Killing case, the first of these cases, the issue of homosexual advance was raised before a jury and also raised in the consideration of the judge’s sentencing considerations.  It is therefore quite wrong to say that this case did not raise the matter and the issue and the availability of the common law defence of homosexual advance as accepted in case law/ common law in this country under this partial defence of provocation .   Mr Premier, you say that it is misleading to suggest that this defence can only be used against homosexuals but you appear to be labouring under a misunderstanding. I have never said that this defence can only be used against homosexuals, I am saying and assert to you very, very emphatically (and no legal expert in this section  would seriously disagree) that the common law defence of homosexual advance, as defined by case law is MOST CERTAINLY available under the provocation partial defence within Queensland law as it stands now, and even as it stands after some tweaking.   As you can see from the above summary, the two cases that played out in Maryborough region can obviously still raise this common law defence under the act even now after the changes last year. The amendments, as your AG has pointed out, preclude mere words, but you can clearly see that these two cases alleged that touching (but not grievous assault) occurred and with alleged (but unproved) assertions of past sexual abuse. SO clearly it would not need to be “tested” as your government representatives keep mentioning, because it is clear on the face of it that this kind of archaic and pejorative defence that could tap into potential jury prejudice and homophobia and infest the whole consideration, turning the victim into the person on trial in effect.

So, in summary, I am saying that the common law defence of homosexual advance is available under Queensland law and it is this which I am campaigning to have effectively eradicated.    I assert to you that it is misleading of you to say that the gay panic defence does not exist or is not available under the law just because it is not referred to explicitly under the provocation heading.   To say it is not existent or not available is like saying you cannot get milk and eggs from a “grocery store” because the words “milk” and “eggs”  are not expressly named in the title of “grocery store” – and similarly, to say that the common law defence of “homosexual defence as a subset of the provocation partial defence under the code”  is not available because it is not named explicitly is making the same ridiculous assertion. It is a completely unhelpful and misleading assertion.    As you and any legal person would know, the law is not just found by looking at the face of the legislation but by caselaw and common law except where explicitly excluded by the legislation or by interpretation of the law through case law and precedent.  It is thoroughly misleading and disingenuous to look at a section of legislation and say that a particular common law does not exist because it does not appear in the words of the particular section. That would be to conveniently ignore the operation of the caselaw and interpretation of that section. I recommend an annotated code to prevent this simplistic misinterpretation.   

Although you say that provocation is not based on sexuality, this ignores the uneven way that the defence has played out in society.  It was so bad that the provocation defence has been declared unsalvageable by the Victorian Government and removed completely and was similarly removed by the New Zealand government.     There are also other things wrong with the provocation defence in addition to the  horrific availability of the homosexual advance defence.  In fact, provocation has been used disproportionately against some groups more than others.  If it were actually applied evenly it would cause such an outcry that it would be removed immediately, because although it does not appear to be uneven, it does indeed operate with tragic and unacceptable effect on some groups more than others.   Provocation negatively affects homosexual males (or those alleged to have made homosexual passes who are then bashed to death for this),  racial minorities and women who are in abusive relationships with abusive (usually male) partners.  This is why the provocation defence has not place in a civilised society.  It is an allowance by the legal system that it is somehow understandable or a mitigating circumstance that some people will totally lose control of their temper and savagely kill another and lose all control. This has no place in our society. The only legitimate excuse for killing is surely self defence when someone is in actual reasonable fear of their life, not a total loss control and a rage set off by various prejudices, biases or bigotries that an otherwise reasonable person might have. 

Just because there are other uses for provocation which also have terrible consequences does not mean that the homosexual advance defence is not also horrific and unacceptable. 

Even if one decides that provocation ought to stay and this is clearly not a good idea,  there are other ways to eradicate this poisonous common law defence by further legislative amendment.

Mr Newman, you and the AG welcomed the expert committee report by JA Jerrard BA,LLB, LLM, QC and expressed gratitude to him and the committee for their work. That report indicated that more indeed needed to be done to this section.  This was not, as described by some, a political football or a stunt by any means. 

The previous government and the present have also fallen into the trap of saying the provocation defence cannot be removed because it is needed to allow bashed spouses and partners to plead their case when they kill their abusive partners. However, this is misleading as Queensland has another section on this which could be strengthened if needed. Victoria has removed provocation and inserted a new section on family violence to cover such things.

I have raised this because I have seen this issue slipped into two cases twice in a year in my own area.  The first case, the Ruks case I know (because I saw the CCTV footage – I provided it from my cameras), that no such alleged sexual advance occurred but it was asserted.  The mother of the victim has called it a pack of lies. One wonders why such a load or rubbish defence was raised if it didn’t happen unless it was somehow felt it might sway the thinking of people!!! 

Please, Mr Newman, this is real and it’s a real concern.

Yours Sincerely

Fr Paul Kelly

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