TL:DRABC Radio National - The Law Report wrote:Damien Carrick: Hello, welcome to the Law Report for 2012 at our new time-slot, 5.30 pm, 4.30 in Queensland and the Northern Territory and 3.30 in the West.
This afternoon meet two unlikely law reform advocates; clergymen from regional Queensland, who are trying to abolish a law they say is way out of step with the 21st century. The pair are trying to abolish the so-called gay panic defence which forms part of the wider partial defence of provocation. Now look you’ve probably heard of provocation in the context of long-term relationships. There have certainly been a number of very disturbing high profile cases where men have killed their wives or girlfriends and then claimed they were provoked. Perhaps because they were told that the relationship was over. These men argue provocation as a partial defence. It’s not murder, it’s manslaughter.
Now in recent years, several states have abolished provocation entirely and others including Queensland have restricted its use. You might think this is an odd issue for two clergymen to champion but you see they both live in the town of Maryborough, in South East Queensland. A couple of years ago this town was shocked by the killing of 45 year old Wayne Ruks. It happened in the church grounds of the local Catholic church. The parish priest is Father Paul Kelly.
Paul Kelly: Wayne Ruks was a bloke who I think was fairly itinerant. He had just moved into Maryborough a few days before he was killed. And I think he was a troubled bloke. He had problems with alcohol from what his mother said in a report. Just sort of a bit of a loner. He took up residence in a local hotel just near the Catholic church in Maryborough.
Damien Carrick: And he died on 4th July 2008. How did he die?
Paul Kelly: He was in the church grounds at about 9 o’clock on Thursday night and he got into a conversation with two men who were apparently smoking and drinking in the grounds of the church, which is a major thoroughfare between parts of the town. And something happened that got the two assailants really quite upset and he was beaten to death by the assailants and left lying there in the church ground where he was found just before 8 o’clock the next morning by parishioners.
Damien Carrick: Now the two assailants were Richard John Meerdink and Jason Andrew Pearce and they were both charged with the murder of Wayne Ruks. What defence did they run?
Paul Kelly: This is where I got shocked. The defence was that Wayne Ruks allegedly made a homosexual advance by grabbing his crotch, the crotch of one of the assailants and that so enraged the assailant that he beat him. And he later died.
Damien Carrick: It was Pearce who made that allegation and I think he also said that he had been sexually abused as a child and that was why he snapped when this advance was made.
Paul Kelly: Yes. And it’s pretty potent when people mix homosexuality and child abuse in the same sentence and in two cases in two years that same potent mix was at least raised.
Damien Carrick: Twice in two years. And incredibly both involving killings in the Maryborough region. We’ll hear later about the second killing of a 62-year-old hitchhiker a little later. In the Pearce and Meerdink trial, Father Paul Kelly says the defence argued provocation.
Paul Kelly: The jury found both not guilty of murder and guilty of manslaughter and it’s unclear whether the defence worked. It seemed to come down to matters of intent and surrounding details of that. But it certainly was presented to the jury.
Damien Carrick: Now in light of the death of Wayne Ruks and the subsequent trial of Pearce and Meerdink, you’re now spearheading a law reform campaign and you’ve commenced an online petition which has indeed attracted international attention. What changes to the law are you seeking?
Paul Kelly: Well under Queensland law and I believe New South Wales is similar, under a murder charge there is a partial defence of provocation. In fact there’s a common law defence of homosexual advance. So I’m campaigning that that loophole, that that defence be eradicated. And that evidence of it can’t even be raised in a murder trial.
Damien Carrick: What’s wrong with an accused being able to argue that they were provoked by a non-violent sexual advance?
Paul Kelly: In this day and age it’s just archaic that what would otherwise be classed as murder be downgraded by the concession that the assailant ‘lost control’ and resorted to extreme violence. So it just doesn’t match with anything that our society really is promoting. It goes against the ‘one punch can kill’ campaign. It goes against the ‘just walk away’ campaign and it actually plays into the hands of violent people who use violence to react to provocation. It’s just against policy.
Damien Carrick: I guess civil libertarians and defence lawyers would say an accused should be able to put forward to a jury all the evidence that has informed their state of mind. And if for instance they have been a victim in the past of abuse or sexual assault, then they should be able to put that to a jury.
Paul Kelly: There’s always been a principle of law that says evidence can be weighed up to make sure that its probative value, its good value, is not outweighed by its prejudicial value and when it comes to things like homophobia or issues of gender bias or even racism—and all of these issues have been raised under the provocation defence problem—it’s too big a risk to take. It plays right into the phobias and bigotry of what could be otherwise reasonable people.
Damien Carrick: So Paul Kelly what is the legal situation in Queensland today and what specifically do you want changed?
Paul Kelly: There have been changes to the law in Queensland. At present it’s still possible to raise the issue of homosexual advance under provocation and basically they’ve deleted the ability to claim mere words or gestures, which is a slight improvement but you could imagine things are never usually that simple. And also it’s now… the onus is on the accused to show that this defence is proved but to me that still leaves open the fact that raising evidence could pollute the minds of people hearing it in the jury and look, the Victorian Law Reform Commission which recommended that provocation be completely removed from Victorian law and then it was, said that basically provocation is unsalvageable because it makes rage an acceptable form of defence.
Damien Carrick: I understand the Queensland government has formed a committee which is currently looking at this very issue. What specifically is it considering and when is it due to report back to government?
Paul Kelly: I think it’s due to report back early next month. It’s looking at whether they have done enough for this particular section and whether there are unintended consequences. But from what I can understand, the Attorney General has issued three statements on the topic and it appears as if they’re thinking they’ve done enough. They might get some more advice on that but I just think we need to make it clear that having this loophole exist, is just not tolerable.
Damien Carrick: Now you’ve commenced your petition, presumably it’s designed to put pressure on the Queensland government to change the law. How many people have signed the online partition?
Paul Kelly: 21,000. And I think it’s climbing daily.
Damien Carrick: And the campaign has… indeed it has attracted international attention. British comedian Stephen Fry re-tweeted a link to the campaign. And that bumped up your figures.
Paul Kelly: I was astounded when I saw that on the news and it really has had a wonderful response and a lot of people have contacted me saying, ‘How do I get on to this petition? How can I sign a hard copy of it?’ So people’s response, I’ve found very heartening.
Damien Carrick: It’s really interesting because you want to get rid of the partial defence of provocation but also the ability of an accused to bring into evidence more generally, not just to rely on that partial defence, but also to even bring into evidence, an alleged, actual, concocted whatever, unwanted sexual advance into court. But people would say ‘We do need to establish all the circumstances around a death. And it is really important for an accused to be able to put forward all the evidence.’
Paul Kelly: I’m not necessarily suggesting provocation removal is the only way of dealing with this. Another thing is to put in a specific rule of evidence that it has to be determined to be of significant value prior to it being put to a jury. So like a voir dire sort of situation.
Damien Carrick: So the judge decides. The judge hears the evidence and says, ‘Yeh, no, look there is enough to put this before a jury.’
Paul Kelly: Yes. But with very strong warnings that because of issues of bigotry it could actually pollute the considerations. But I still say the damage that could be done is probably worse than the value of knowing the circumstances. I would personally find that if it was an innocuous statement that was knocked out, that they should only be able to say that ‘we were sitting in a car and something happened and I lost it and punched him.’ And the ‘something’ is not allowed to be referred to because it’s been deemed not sufficient to explain violent reactions.
Damien Carrick: It’s extraordinary but coincidentally there was another killing also in 2008, also in the Maryborough region where the defence alleged, as I understand it, that the deceased made a non-violent sexual advance. There was another case along these lines. Can you tell me what you know about that case?
Paul Kelly: Yes. There was a hitchhiker picked up by two drivers and again, the drivers claimed that this hitchhiker made a homosexual advance towards the person and that he bashed him 20 to 30 times as a result of that. And they left him in the bushland and in fact moved the body further into the bush and left him there. Again it was raised. They didn’t appear to use the defence specifically which is why I think evidence of it is also potentially worrying. The assailant said that he did this because of the homosexual advance and that he had been abused when he was younger. So again, very similar explanation but brought in just to let people know the general circumstances. That’s allowed by the law at this point.
Damien Carrick: And in that case I understand that one of the accused was found guilty of manslaughter not murder. And the other one was found guilty of being an accessory to manslaughter.
Paul Kelly: That’s my understanding too.
Damien Carrick: I mean it comes back to that question of whether the unwanted sexual advance actually took place or not as well.
Paul Kelly: That’s right. I mean under the present law one could allege, concoct or just believe that something is a homosexual advance and react to that. So I feel very worried about it.
Damien Carrick: What has the death of Wayne Ruks… what impact has it had on the local community in Maryborough?
Paul Kelly: I think it really knocked people over. To see such a violent death right in your backyard, it really is quite disturbing. And I just felt so sorry for him and his mother who had to come out and say, ‘Oh. It wasn’t how people were saying.’ I thought she shouldn’t have to defend him like that. He’s the victim. So I think it has had a profound affect, certainly on me and I believe on others. I think of him and the other victim, the hitchhiker, and I think they can’t speak for themselves, they can’t defend themselves, so I just feel very strongly it’s important that others do.
Damien Carrick: Over 20,000 people have now signed Father Paul Kelly’s online petition to abolish the so-called ‘gay panic defence’ in Queensland. One of them is Chris Foley. He’s the state member for Maryborough in the Queensland parliament. He’s a political independent and he’s also the pastor of a local Methodist congregation. Chris Foley plans to table Paul Kelly’s petition in the Queensland parliament.
Chris Foley: Well I think it’s just a question of natural justice because no one will ever know what really happened. I mean the courts look at it all. I wasn’t in attendance at the court hearing so I can’t speak first hand to what was said. But the allegations were that this particular person made an advance towards these men which they perceived as a threat and they bashed him to death. Now I mean people have a right to defend themselves but when two people onto one bash a person to death purely because they say that they felt threatened by the fact that he’d made a homosexual advance, I think it’s just absolutely ludicrous. I think it’s poor law and it shows no sense of justice. Now obviously if someone had to defend themself that’s a different thing. But just to say, ‘We felt threatened so we decided to murder this person,’ I think is absolutely crazy.
Damien Carrick: You’re a man with many interests. Prior to entering parliament you were a financial planner. You’ve also had various roles in the media including for the ABC and Channel 7.
Chris Foley: Yep.
Damien Carrick: You’re also an aeroplane pilot, a black belt Jiu Jitsu instructor. Also though an award-winning gospel singer and because that’s part of the fact that you’re a very observant Christian. You’re a senior pastor in fact, of the Grace Community Church, a Methodist congregation.
Chris Foley: Yep.
Damien Carrick: And you’re a social conservative aren’t you?
Chris Foley: Yes. Absolutely. I think it’s, you know, I always joke around the fact that Father Paul Kelly is, he’s a very good friend of mine. He’s a great guy. And you know I used to joke and say it’s not often you’ll have the Methodists and the Catholics agreeing with each other but...You know on issues. You know I think the broader Christian church to use the wider term, should be alarmed at things like this happening. It’s just not justice and so when I heard that he’d raised this petition I thought, ‘Boy. I absolutely agree with him.’
Damien Carrick: You are a social conservative. You did vote against recent Queensland legislation on civil unions for same sex partnerships.
Chris Foley: Yep.
Damien Carrick: Is there a contradiction between your position on the civil union legislation and your position here?
Chris Foley: Not at all because one is a question of choice. You know: what I made very very clear is that my opposition to civil unions had nothing to do with the fact… I mean I’m not… everyone sighs and groans and tries to make out that you… because you were against civil unions, which of course were heterosexual as well as homosexual in the legislation passed, that somehow or other you have an agenda or a hatred. I would absolutely disagree with that. No real Christians that I know have a hatred of homosexuals. And you know I think that’s very clearly demonstrated by the fact that the person leading the charge on this, to have the law changed, is a Catholic priest and I’m a Methodist pastor and a member of parliament. We do well to remember that William Wilberforce had an amazing impact over a very long period of time as a high profile Christian and a man who knew how to lobby parliament. But it still took a long time to have the law changed.
Damien Carrick: You’re talking there about the law against slavery back in the UK in the 1800s.
Chris Foley: Yes. And I think in some senses there’s been kind of a little bit of a disconnect. You know. People forget that it was Christians that started unions to get kids out of coal mines in England. So I would like to think all we’re doing is, in some respects, is going back to the future a little and saying justice matters. And I like to think that I serve a God that cares about people and individuals and their rights.
Damien Carrick: So do you see the current laws regarding provocation as homophobic?
Chris Foley: I don’t know. I mean, in this particular case I would see the outworking of it would be clearly put into the homophobic basket. Whether it does right across the board, because that piece of legislation of course covers more than just fear of the homosexual provocation, it’s a much wider scope. But I think it does need to be changed because even when you look at common assaults… I mean I teach martial arts. I’ve practised martial arts since I was 14 and you can’t… if someone punches you, it’s not reasonable force to turn around and shoot them. Or bash them to death. You know, if you feel threatened then walk away. You don’t need to say ‘I felt threatened by this person’s advance and so I’m going to kill them.’ I think they should have been charged with murder.
Damien Carrick: Well I think they were charged with murder.
Chris Foley: Yes. Sorry. Should have been found guilty of murder I should say.
Damien Carrick: I understand that you have indicated that you are willing to table this petition in the Queensland parliament. Is that right?
Chris Foley: Absolutely. Yep. It happened in my electorate and I’m more than happy to table it.
Damien Carrick: Chris Foley. The independent local member for Maryborough in the Queensland parliament.
I’m Damien Carrick and you’re listening to the Law Report broadcast each week on RN, Radio Australia and ABC News Radio. Our website is at abc.net.au/rn/lawreport and there you can download audio, listen to the program online, read a transcript or leave a comment.
Today we’re looking at a campaign to abolish the so-called gay panic defence in Queensland murder trials. The idea is that an accused murderer can claim they were provoked to kill by a non-violent sexual advance. It’s one of a range of scenarios that come under the broad umbrella of provocation. Professor Heather Douglas is a criminal law expert at the University of Queensland. She says in recent times there’s been a strong nationwide push to abolish, or at least limit the scope of provocation defences.
Heather Douglas: Well there’s certainly a trend in Australia and in other jurisdictions to actually abolish provocation as a defence in killing cases. So recently we’ve seen Victoria repeal provocation in 2005, Western Australia followed in 2008. The leader in Australia was Tasmania who repealed it in 2003. New Zealand also repealed provocation, most recently in 2009. So that has been a common thing in recent jurisdictions in Australia and other parts of the world. We’ve also seen amendments made in the Northern Territory and the ACT to provocation law in 2004 and 2006 and they’ve specifically dealt with this issue of homosexual advances. In New South Wales and South Australia and Queensland we still have provocation very much on the books as a defence to murder which would, if successful reduce the final conviction to manslaughter. South Australia relies on the common law. New South Wales and Queensland have statutory provisions similar to Northern Territory and the ACT but with some specific modifications in each of those jurisdictions. Queensland recently modified their law on provocation. The most important things they did in that state, or we did in our state, was to include a whole lot of material in provocation that was excluded as a provocative act. So things like a person can now no longer claim that they were provoked by a change in the nature of the relationship. So for example, you can’t claim that if your wife leaves you, that is provocation by itself. They also changed the burden of proof. So now the burden is placed on the defence, to demonstrate that they were provoked. So they are two things that should narrow the operation of the defence in Queensland.
Damien Carrick: Now provocation arguments or provocation scenarios presumably come in many forms. I would imagine it’s usually the partial defence of provocation is raised by men who kill women, usually their partners. Is that right?
Heather Douglas: Certainly that has been an incredibly common feature in provocation law over time, that men have killed women, in situations where they become angry with women for nagging them about issues related to work or lack of work. They’ve become angry with their partners because their partners have decided to leave them or have complained about their performance, their sexual performance. There are a number of cases on the books that reflect those kinds of situations. But it has also been claimed in a number of male on male contexts, not necessarily in homosexual advances but in situations where men have become angry with each other for other reasons. So that’s not uncommon as well. But certainly it is very common that men have raised provocation in response to actions of women, usually their intimate partners or ex-intimate partners.
Damien Carrick: We’ve seen these two recent cases in Queensland. Heather Douglas, laws like these, do you believe they can play a role in reinforcing prejudice or discrimination against gays and lesbians?
Heather Douglas: I think they can. I think that laws should be a statement of where we are at as a society and as a culture. They should reflect that position. In a situation where we have a debate in parliament about gay marriage, clearly we’re saying that we must be tolerant as a society of homosexuality. It’s a message that I think the law should reflect. There is obviously parts of society that are not tolerant and some of these men are probably coming before the courts making these kind of homosexual advance claims when they cause injury or harm. And certainly that’s the experience of so many gay and lesbian people. Queensland did a survey in 2010; about 23 per cent said they had experienced physical violence as a result of being gay. And many of those cases had occurred, or had been inflicted by men who did not know the person. So they were unknown people and they experienced violence from unknown people. So clearly there is a problem in our culture. But by the same token I think we have a very public message going out now about tolerance and I think that the law should reflect that position.
Damien Carrick: Heather Douglas, playing devil’s advocate, you’ve got an accused who’s been charged with murder and they say, ‘Look. My state of mind was influenced by the fact that I had been abused in the past and I snapped as a result of that.’ Shouldn’t we be putting that to a jury and letting a jury decide on those issues?
Heather Douglas: I think that’s really interesting. Certainly the two Queensland cases, that was the position. That yes, the defendant snapped in response to a homosexual advance. That was the case of Pearce and Meerdink and also the case of Peterson and Smith who killed a hitchhiker who made a homosexual advance towards one of them.
Damien Carrick: Allegedly.
Heather Douglas: Allegedly. Allegedly. Indeed. Allegedly. The person’s dead so really can’t stand up for themselves to say what happened or what he did. But in both of those cases the accused people suggested that they had been sexually abused as children. Now I think this is probably a result of the High Court case in 1997 which linked homosexual advances to childhood sexual abuse. In Green’s case for example, the High Court discussed this issue and Green argued that he had been provoked by the sexual advance of Donald Gillies and that he’d responded by stabbing Gillies with scissors some ten times and punching him some 35 times, killing him. But he said that the reason why the provocation in that case was so grave and so serious was because it reminded him of sexual abuse of his sisters and mother by his father. And this is what made the provocation from Donald Gillies so grave to him. So I think that is where that connection comes from and it’s interesting that these recent cases in Queensland have both had that connection. What do I think about that? I still think it’s problematic that a homosexual advance that is non-violent can be seen as a trigger for provocation. But I also think that the problem here is not so much—and I go back to my real position—I also think the problem really lies in the problem with the existence of provocation as a defence in Queensland. If we remove provocation from the books and have a non-mandatory life imprisonment penalty for murder I think we can have a case where there might be small reduction to penalty as a result of that but it shouldn’t change the fact that these men are murdering other men.
Damien Carrick: The law of provocation I guess is ostensibly gender-neutral. But has there ever been a case where a woman has killed a man and then turned around to say, ‘I’d like to argue the partial defence of provocation because he made a non-violent sexual advance towards me?’ And given the fact that no doubt many women have been victims of say sexual abuse at the hands of men in the past?
Heather Douglas: I certainly am not aware of something like that. And the idea that a man and a woman are say, at a party, and a man says to a woman, maybe puts his hand on her shoulder and says, ‘How about it?’ and she responds by grabbing the nearest knife and stabbing him seven times… I think that most people would find that that would be an extraordinary situation if that could lead to a successful plea of provocation manslaughter.
Damien Carrick: Irrespective of an argument about prior sexual assault at the hands of somebody of the same gender?
Heather Douglas: I think it would be very unlikely to be successful.
Damien Carrick: Paul Kelly can I ask you, why do you feel so strongly about this issue? It seems like an unlikely issue for a Catholic priest to feel so strongly about.
Paul Kelly: I think it’s just a justice issue that all people irrespective of sexuality, gender or race should feel safe, should feel free from violence. And I don’t believe our society is sending the right message when it has defences that say, ‘Look I lost it, and bashed someone because of something that happened to me.’ I just think that is so archaic.
Damien Carrick: Paul Kelly and before him Professor Heather Douglas from the University of Queensland.
That’s the Law Report for this week. I’m Damien Carrick. Thanks to program producer Anita Barraud and technical producer Nick Mierisch.
Following a murder on Church grounds where the two accused are trying to utilise the gay panic defence, the Catholic Church in goddamn QUEENSLAND (it's like Australia's Florida) is trying to remove Gay Panic as a defence, motive, excuse - ANYTHING from the QLD legal system.
Who the fuck saw that coming?
