further thoughts on what is wrong with provocation

In July 2008 our parish was shocked and saddened when a man was found beaten to death next to the side entrance of our parish church of Saint Mary’s Maryborough.  It turned out that the man, Wayne Ruks has been beaten by two assailants at about 9.15pm the previous night and left lying exposed to the cold night air unaided until he was found deceased the next morning around 8am.   An efficient police investigation led to two men being charged two days later with causing his death.  In the trial, the reason given for the multiple bashing was that the victim has allegedly made a homosexual advance towards one of the assailants that led to the attacker losing all control and savagely beating him for many minutes as he lay on the ground and then leaving him lying there.  I was shocked and horrified to learn that in a murder case there is a defence under the provocation head, in common law, commonly known as the homosexual advance defence.  This is basically the suggestion that a reasonable man could be understood to lose all self control and lash out angrily and violently at even a slight touch or gesture of homosexual advance. This defence appears available even if the assailant mistook an action as a gay advance even if it actually was not. The problem too, is that provocation of this type could also be concocted as an excuse for excessive and violent behaviour.   It was too much when just over a year later in our same region another separate case came to trial of two men who were charged with bashing a hitchhiker to death after picking him up at Glenwood. Again in this new case the explanation for the savage bashing was that the victim allegedly touched one of the assailants in an unwanted sexual way.  Many people can understand why I and others at this point reacted to this defence.  If a defence like this is not removed, it could tap into the prejudices, fears and assumptions of juries and infect their considerations. Those who argue that the defences in these two cases did not finally turn on the issue of homosexual advance, are attempting, in my view, to unscramble a well-scrambled egg.

The defence of provocation is an archaic defence which goes back to the time when men had duels with eachother and where the community was more prepared to accept that there were some times when it was understandable that lethal violence might be used when a person was sorely provoked. The assumption behind this loophole is that the community implicitly accepts that lashing out violently and disproportionately to the actions of another (or their perceived actions)  is some form of mitigating explanation for gross violence and a lack of control over one’s temper.  There is no place for this kind of thinking in this day and age.   We now understand that even one punch can kill. We better appreciate that stomping on someone or kicking them while they are down, is often a lethal and vicious action.  We have campaigns in the community recommending “just walk away”  and yet we still have common lae defences available under our present legal system that make appalling allowances for angry, violent men with bad tempers. By allowing this law to continue to exist, the community is implicitly saying that it understands and accepts that violent and disproportionate responses relating to some unknown prejudice, fear or chip in the mind of the attacker, should be accommodated.   It really should not.

As I looked into this provocation section, I realised that provocation is often used unequally against certain groups within the community.  Provocation has been used against racial minorities,  it has been attempted by violent abusive men as an excuse for bashing their women partners or wives for alleged provocation which really masks abusive patterns of relating by these men.  And. Provocation is often used by men against other men, including several incidents when the defence has been raised as a homosexual defence.    

In many states of Australia and in New Zealand, the provocation defence has either been removed or amended to prevent situations where violent men have claimed that their women partners had provoked them by telling them they were leaving them or when they discovered that they had been unfaithful to them. As we know, there are many ways of being unfaithful in a relationship, but it seems only one is utilised as a partial defence of provocation.    I also noted a recent case where a Sudanese man was violently beaten and killed by a group of thugs.  One of the attackers tried to use the excuse that the Sudanese man had attacked him first but the judge in that case rejected this and said that this was a concocted story to cover the unprovoked attack of the victim.  This does illustrate the possible racial overtones of the provocation defence and also the real possibility that violent men will make up stories about being provoked to try and mitigate against their horrific and excessive violence.   The problem with the provocation defence is that by virtual definition it is not a proportionate response to the alleged actions of the victim. In fact, it is a disproportionate response that does not match the actions. If it were proportionate it would arguably be self defense in reasonable fear for one’s life, which is a separate and complete defence but naturally harder to argue and prove.   In New Zealand, the provocation defence was totally removed after a case when a man killed his female partner and claimed she provoked him. This was not accepted but it caused such an outcry because the community clearly saw this as playing right into the hands of violent abusive men, that it could not be tolerated.  There are many things wrong with this defence.  The community has a right to expect its members to have control of their tempers and has a right to reject violence as any sort of acceptable response to provocation.  Arguably only self defence in fear of one’s life is an excuse for violence that leads to death. 

Extra - Homosexual advance still exists.

In his report "Re: Amendments to section 304 of the Criminal Code" - JA Jerrard BA,LLB, LLM, QC, described as the case of R v Peterson and Smith, (who were sentenced on 14 October 2011 in Maryborough circuit court for the offence of manslaughter of Stephen Ward) as an "unequivocal example" of the homosexual advance argument under the provocation partial defence. 

United Nations Treaty Obligation

Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 


(Article 26 of the Treaty imposes a right not only to formal equality but also substantive equality.  In other words, even though, for example, the partial defence appears neutral on its face, if it operates in a discriminatory fashion against individuals on the basis of sexual orientation, this provision is also breached. 

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

some handy links

The following links will give detail about them, especially the report to the AG below…..

Here are some helpful links:

The following was the announcement that the former government was going to make changes to the law.  This government never got to do this and then the present government has decided not to make such changes

http://www.justice.qld.gov.au/corporate/media-centre/media-statements/2012-media-statements/justice-services/government-announces-changes-to-provocation-murder-defence

the two cases you are looking for are looked in the following report below. In this report the expert committee recommend further changes. I don’t think this even goes far enough but it shows the problems and expounds the two cases I refer to…

http://www.justice.qld.gov.au/__data/assets/pdf_file/0004/134275/report-to-the-AG-20120117.pdf

the high court of Australia expounded on the homosexual advance in this precedent case, and the problems with this archaic defence are ably summed up by the dissenting opinion of Justice Kirby…

http://netk.net.au/Australia/Green.asp

In the Australian state of Victoria the legislature has removed the defence of provocation entirely because of concerns such as the ones we have been raising… and they put in a special section to cover family violence:  the following documents show that many of the arguments raised by the Queensland government are disingenuous because the Victorian reforms have dealt with them rather effectively.

http://www.lawreform.vic.gov.au/vlrc-voice/defences-homicide-final-report-launch

http://www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf

one problem in Queensland is that we have mandatory life sentence for Murder convictions and the Victorian law does not but it still deals with many of the same issues and comes up with solid solutions. Also, we submit that this does not justify a defence that basically allows for people to lose it and lash out.  The only acceptable defence for homicide is self defence, not provocation.

furhter thoughts

A response to someone who is analysing the effect of unjustly operating laws on minorities in developing countries:

I agree that this kind of intolerance and bigotry and inequality can indeed occur even in developed Western nations, but as you are observing, if it happens here it is being done subtly, but the uneven application or effect of particular laws, and by common law interpretations that are archaic, or by pathetic and weak excuses by the legislators and legal authorities who raise up all  disingenuous excuses for not doing anything, which really indicates in my view that they do hold bigoted views but aren't saying it.   one of the lamest excuses by our Attorney General is that the law in question is  available for everyone and is not targeted against gays and can be used by men  or women, which completely ignores the fact that a man using provocation as an  excuse for bashing his wife to death would be not acceptable to the community  and a woman bashing a man for a low level unwanted pass would be met with  complete horror. The attorney general here says 'we can't go changing laws  lightly becuase of petitions' but then in other cases says, 'we must take into  account communuty standards and expectations.' which means that in effect he is  saying that they listen carefully to some groups within society and give weight  to their needs and concerns and ignore or minimise others due to some  undisclosed and unjust internal standard that i suspect is actually bigotry,  ignorance and a hatred for what they see as merely a 'gay agenda'   you are on to something with this. In the west, you can still be (sadly)  bigoted and unequal, but in the West, it has to be masked with a thin veil of  democratic rhetoric and excuses (usually which are inconsistent and illogical  and contradictory) but which are minimally plausible for the audience, but don't  stand up to rigorous analysis.         

From Bad to Worse (update)

It just gets worse. A supporter posted a question on Queensland Premier Mr Campbell Newman's facebook and this is what happened:

Commentator: Question for yourself and your goverment, Why is it acceptable in this day and age in the state of Queensland that in law is the Gay panic defence and in your goverments opinion not necessary to change it. Violence against anyone based on colour, relegion, cultural background or sexual orientation is wrong to anyone with any sort of morales or sense of justice just not in Queensland, yet this is what your agreeing to without looking into an arcahic law that belongs in the 17th century, I am incredibly saddened that the CAN DO Premier thinks that this is acceptable in any way shape or form :(

·         Campbell Newman 

There is no “gay panic” defence - it is a concocted interpretation of Queensland provocation laws. It is important to understand that the defence of provocation is not based on sexuality. In 2011, the laws were amended to ensure words alone do not amount to provocation unless exceptional circumstances exist. The laws were strengthened making provocation as a whole harder to establish as a defence. To date, these strengthened provocation laws have not been used in a murder trial and only took effect in April 2011. The LNP remains tough on crime, however given these laws are yet to be tested, does not intend to make any further amendments to the provocation defence at this time. –Premier’s Team

2 hours ago · Like

Commentator:  If this is the case then what your goverment is allowing as exceptional circumstances over 162 thousand people disagree with you and that number is growing.

29 minutes ago · Like

Paul Kelly Mr Newman, what you have said is not correct. The Gay panic defence is not a concoction of the provocation laws. See the High Court case of Malcom Thomas Green v The Queen [1997] HCA 50. The homosexual advance defence in provocation is real and has been utilised and discussed in many cases. Homosexual advance was brought up in two separate cases in Maryborough within a year in this state. How can you and your government representatives continue to say that this is not a real defence.This is just a very unhelpful distraction. The effect of the law is unbalanced and does not in effect show even application or effect. Saying that it is still to be tested simply means that one will wait for another incident of gay bashing leading to death in which the accused again tries to raise this awful defence.

2 seconds ago · Like