The South Australian Law Society has rejected calls to abolish the provocation defence for murder cases.
The ‘gay panic’ defence sparked debate again last week following South Australian Michael John Lindsey’s successful High Court appeal.
The defence, which has been long abolished in New South Wales but remains in South Australia and in Queensland, allowed Lindsey to argue that the victim he bashed to death in 2011 had caused him to lose control by making unwanted sexual advances.
Rocco Perrotta, president of The Law Society of South Australia, reportedly wrote a letter to the Legislative Review Committee, released last week, arguing that the defence should remain available to accused murderers.
“… the High Court in [Lindsey’s appeal] has demonstrated that the partial-defence can and does have regard to contemporary community attitudes and standards,” Perrotta’s letter to the Review Committee from 2 June said.
“It is surprising, therefore, that the occasion of the delivery of Lindsey v R has been met with renewed calls for reform concerning the regrettably coined ‘gay panic defence’”, the letter continued. “The common law partial defence has a rationale which, when properly explained to the community, would be seen to be acceptable and consistent with social norms. Importantly, the partial-defence works to avoid an inappropriate murder conviction.”
The South Australian Law Society confirmed this position to Australasian Lawyer last week. Perotta said while the defence has an unfortunate nick name, he believes it to be an important defence to the course of justice.
“It is unfortunate that provocation has been labelled the ‘gay panic’ defence, as the Law Society’s objection to abolishing provocation is not about homosexuality,” said Perotta. “The current law recognises that people can lose complete control of their actions when provoked. An example would be for an unsolicited sexual advance that triggers flashbacks of child abuse, thus making the object of the advance to react in an irrationally violent way.”
Perotta did note that the defence can also apply to heterosexuals, adding that there are circumstances under which a murder charge should be downgraded to manslaughter.
“Another example is a woman who has been subject to sustained physical and psychological abuse at the hands of her partner, and after another habitual bashing finally ‘snaps’ and kills him.”
“There should remain provision for an alternative offence to murder to be considered for some cases of unlawful killing which, unlike murder, are not premeditated.”
