Lindsay v The Queen  HCA 16
A recent decision of the High Court of Australia allows the partial defence of provocation to be left to a jury in circumstances where the accused claims to have been provoked by a non-violent homosexual advance.
The appellant was Michael Joseph Lindsay, an Aboriginal man aged 28 years at the date of the offence. On the evening of 31 March 2011, he and his de facto wife, Melissa, and a friend visited Hallett Cove Tavern. There, they met the deceased, a Caucasian man named Andrew Roger Negre, who was previously unknown to them. The appellant, his party and the deceased drank together at the tavern, before going to the appellant’s Hallett Cove home to continue drinking into the early morning.
There were two incidents which contributed to the trial judge leaving provocation to the jury’s consideration. It was open for the jury to find that the deceased first straddled the seated appellant in a sexually suggestive manner. This upset the appellant and the appellant’s de facto wife who was also present. The appellant told the deceased not to do that again. Sometime later, the deceased repeatedly offered to pay the appellant for sex.
The appellant then punched the deceased who fell to the floor. The appellant punched and kicked the deceased. The appellant then got a knife and repeatedly stabbed the deceased.
Lindsay was tried before the Supreme Court of South Australia on the charge of murder. In South Australia, the partial defence of provocation under common law operates to reduce murder to manslaughter. The jury was directed that it was incumbent on the prosecution to prove that the appellant was not acting under provocation at the time of the killing. The appellant was convicted of murder.
On appeal in the Court of Criminal Appeal of the Supreme Court of South Australia found that the directions given to the jury on the question of provocation were flawed. However, the Court of Appeal concluded that the evidence taken at its highest could not satisfy the objective limb of the partial defence of provocation – no reasonable jury could find that an ordinary person in 21st century Australia provoked to the degree that the appellant was provoked would have so far lost their self-control as to attack the deceased man as Lindsay did. As such, the defence of provocation should never have even been put to the jury, and so the erroneous directions did not produce a substantial miscarriage of justice. The appeal was therefore dismissed under the proviso to s353(1) of the Criminal Law Consolidation Act 1935 (SA).
The appeal to the High Court of Australia was brought on three grounds.
- The trial judge was correct to leave provocation to the jury;
- The Court of Criminal Appeal's reasons for concluding the contrary wrongly took into account unidentified academic literature; and
- In the absence of an application by the prosecution it was wrong to apply the proviso.
The appeal was unanimously allowed. The appellant’s conviction was quashed and a new trial was ordered.
The Court found that the trial judge was correct to leave the question of provocation to the jury. The Court advocated caution before a court determines as a matter of law that contemporary attitudes to sexual relations amount to certain conduct being incapable of constituting provocation. The provocation must be assessed from the viewpoint of the accused.
The High Court suggested that the Court of Appeal’s focus on contemporary attitudes to homosexuality did not prevent a jury considering that the ‘sting’ in the provocation lay, for example, in other aspects of the circumstances, such as the offer of sex for money in the appellant’s own home.
It was open to a reasonable jury to find that an offer of money for sex by a Caucasian man to an Aboriginal man in the latter’s home and in front of his de facto wife and family may have a pungency that an unwelcome sexual advance by one man to another may not have. The assessment of severity of provocation and whether it satisfies the objective limb of the test for provocation were matters for the jury. Therefore it was wrong for the Court of Appeal to dismiss the appeal.
This decision overturned the Court of Appeal’s view that the question of provocation has to be determined in light of contemporary attitudes and that a greater measure of self-control is expected as society develops. The High Court emphasized that the gravity of the provocation must be assessed from the standpoint of the accused.
The High Court decision has prompted the South Australian Attorney-General to order an inquiry into what has been described as the ‘gay panic’ or homosexual advance defence, and the Greens have re-introduced a Bill to abolish this partial defence to murder. South Australia is one of the two remaining jurisdictions in Australia not to have completely abolished this category of provocation. The other jurisdiction is Queensland, where the incoming Government announced earlier this year its intention to legislate to remove any ability to rely on the partial defence.
The full case can be found here: http://www.austlii.edu.au/au/cases/cth/HCA/2015/16.html
Beatrice Paull is a Legal Researcher at the Human Rights Law Centre.