Tuesday, May 19th, 2015 - NewsMaker
A University of Adelaide law expert says South Australia should abolish the partial defence of "provocation", which reduces murder to manslaughter if a victim is alleged to have "provoked" the defendant into losing control and killing.

The provocation defence has become known as the "gay panic" defence because of its use in a number of cases involving the killing of men who were said to have made homosexual advances.

This month, the High Court ruled on the case of Michael Joseph Lindsay. A South Australian jury found that Lindsay had stabbed to death a man who had made sexual advances toward him, and that he should be convicted of murder, rather than manslaughter. The High Court quashed the conviction because the defence of provocation had not been properly explained to the jury, and ordered that Lindsay be re-tried.

"South Australia is the only jurisdiction in Australia that has not abolished provocation completely, or passed laws stating that non-violent homosexual advances alone cannot constitute provocation," says Kellie Toole, Lecturer in the University of Adelaide's Law School.

"The Lindsay ruling has attracted criticism. In response, Tammy Franks from the South Australian Greens has reintroduced a Bill to Parliament aimed at preventing a same sex advance from being considered as grounds for provocation. However, a better response would be the complete abolition of provocation," Ms Toole says.

Ms Toole says previous South Australian Supreme Court judgments found that homosexuality is now so accepted in Australia, that a non-violent homosexual advance alone could not cause an ordinary person to lose self-control and kill.

"However, the High Court found that an ordinary person might lose self-control and kill in response to a homosexual advance. It also took a broad view of 'other' factors that could combine with a homosexual advance to act as provocation."

The ‘other’ factors in the Lindsay case were that he had been hospitable to the victim, and the sexual advances were made in Lindsay’s home, in front of his wife, and accompanied by offers of payment for sex. "The High Court found that this insult to his integrity was grave enough that it could cause an ordinary person to lose control and kill," Ms Toole says.

She says laws designed purely to stop non-violent homosexual advances from being considered "provocation" would not prevent gay panic defences. "As in the Lindsay case, it would simply increase the importance of the 'other factors' accompanying the homosexual
advance," she says.

"We need to follow Tasmania, Victoria, Western Australia and New Zealand and abolish provocation completely, so that a person who intentionally kills, unless they are acting in self-defence, will be convicted of murder and be unable to blame the words or actions of their victims."


Media Contact:


Kellie Toole
Lecturer, Adelaide Law School
The University of Adelaide
Phone: +61 8 8313 4440
Mobile: +61 (0)407 320 389
[email protected]

David Ellis
Media and Communications Officer
The University of Adelaide
Phone: +61 8 8313 5414
Mobile: +61 (0)421 612 762
[email protected]

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