Thursday, 31 March 2011

Qld: gay panic defence now much harder to run

Laws passed by Queensland's Parliament will make it considerably
harder in that State to rely on gay panic defence as a defence to murder. The change is part
of a package of changes to the defence of provocation to murder, which will
also make it considerably harder for those accused of murdering a family member
or their former partner to say that they were provoked into doing it, and then
get convicted of manslaughter.
Previously to rely on the defence of provocation to murder,
the accused would state that he or she  had murdered “in the heat of passion caused by
sudden provocation”.

The change which will affect gay panic defence says that
sudden provocation in the heat of passion is by words alone “other than in
circumstances of a most extreme and exceptional character”. It is unlikely, in
my view, that to say that a man was murdered because he was propositioned by
another would be “circumstances of a most
extreme and exceptional
character”. We will have to wait to see whether the
courts call being propositioned “a most extreme and exceptional character”.

To rely on “a most extreme and exceptional character”, the
court may have regard to any relevant history of violence. This will also make
it much harder for the defendant to be able to rely on the defence, if the
defendant has a prior history of violence (which is not limited only to
criminal convictions).

The onus of proof is also reversed- so that the defendant
will now have to prove the defence, not for the prosecutor to show that the
defence does not exist.

An accused using gay panic defence says that they panicked
after being the object of romantic or sexual advances by the victim.

The changes to the defence of provocation in domestic
violence cases also remove as provocation anything about the ending of the
relationship between the accused and the victim.

2 comments:

  1. I also recommend reading the following link which suggests the changes made do not "make it more difficult for an accused murderer to rely on the non-violent homosexual advance defence".

    http://qnews.com.au/article/a-gay-advance-no-excuse-murder

    ReplyDelete
  2. http://qnews.com.au/article/a-gay-advance-no-excuse-murder

    ReplyDelete