Melbourne University Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Melbourne University Law Review |
|
SANTO DE PASQUALE[*]
[‘Culture’ is topical in provocation law. Aside from the dilemma of whether culture should inform provocation law’s objective standard, the culturally laden ‘Homosexual Advance Defence’ is now an entrenched part of provocation doctrine. The advent of the Homosexual Advance Defence is strong evidence of provocation law accommodating specific cultural claims. This article argues that provocation is a dominant cultural defence and, by implication, that provocation is a heterosexist cultural defence. The first part of the article, structured within the framework of poststructuralist, feminist and critical race theory, analyses provocation cases involving ethnic minority defendants to argue provocation’s cultural inscription. The article then examines how an unmarked, heterosexist legal regime asserts its cultural dominance in provocation cases.]
CONTENTS
[A]s I understand the law, it is not open to an accused to put forward under this aspect of the law relating to provocation the fact that in his or her culture a particular act is particularly provocative in a way which is well beyond its provocative effect or tendency in Australian culture.[1]
[W]ithin phallocentric culture, sexuality is always presumed to be heterosexuality and thus heterosexuality achieves a spurious universality against which ‘deviations’ (which are called by special names) are judged.[2]
What counts as ‘culture’ is a consideration frequently glossed over in recent debates about provocation law. A belated recognition of Australia’s cultural diversity has led to calls advocating not only the incorporation of ethnicity in provocation’s objective standard,[3] but also proposals for the introduction of a general cultural defence.[4] The law reform agenda encapsulated in these submissions is clear: a provocation defence, which has at its core an ordinary Anglo-Celtic person test, is not amenable to ethnic minority defendants seeking mitigation of their murder charge. In this article I argue that, for all the talk of provocation carrying an ethnic or cultural bias, there is little recognition of the cultural dimension implicit in the claims of men ostensibly provoked by unwanted homosexual advances. While provocation cases involving ethnic minority defendants are generally perceived as raising cultural issues (and rightly so), cases in which men allege a homosexual advance are no less culturally inscribed.[5] Notwithstanding the appeals of some ‘benchmark’ (read ‘white, Anglo-Celtic, heterosexual, able-bodied and middle-class’)[6] men to an equality-espousing objective standard, provocation cases ‘always already’ reflect the standards of the dominant culture, including, necessarily, its heterosexism. I point to the recent embodiment of heterosexism and homophobia in provocation law, the so-called ‘Homosexual Advance Defence’ (‘HAD’), as irrefutable evidence of a provocation doctrine replete with heterosexist cultural judgments.
I am not simply arguing that dominant cultural values govern the law of provocation, but rather that provocation is itself a dominant cultural defence. The place of cultural defences in criminal law is currently topical in the United States,[7] where for some time now minority feminist scholars have questioned the legal system’s ready acceptance of culture as a mitigating circumstance in sexual assaults perpetrated by minority men.[8] These scholars contend that gendered and racial power relations flourish when dominant groups decide what counts as ‘culture’ in criminal trials. To present the best possible argument that provocation is a dominant cultural defence, I believe it is imperative to draw upon the searching critique of culture provided by minority feminist scholarship. It is my view that the case for provocation being a dominant cultural defence is considerably strengthened by broadening the inquiry from one focusing exclusively on provocation’s hetero-normativity, to one examining the various cultural assumptions informing provocation law.[9] In Part IV of the article, I consider how an Anglocentric understanding of culture reproduces racism and sexism in provocation cases involving minority defendants. A brief survey of these cases affirms the deeply masculinist and misogynist culture infusing Australian provocation law. That ‘sexual provocation’[10] comprises the typical provocation case attests to the availability of a cultural defence specifically designed for men provoked by ‘their’ women.
Exploration of the racist and gendered nature of provocation law should not be viewed as diminishing in any way my concern to address the doctrine’s heterosexist and homophobic bias. Only in recent years have scholars identified the homophobic essence of Australian provocation law. Part II of the article documents the various criticisms directed at HAD by Australian academics and law reform bodies. Attributing a heterosexist culture to the provocation defence, however, warrants greater scrutiny of the term ‘culture’ than most Australian commentary has provided. In Part III, I canvass North American contributions to the cultural defence in order to question the limited assumptions of culture underlying Australian law reform initiatives. In particular, the work of critical white theorist Ruth Frankenberg dispels the notion that culture is commensurate with the race or ethnicity of marginalised groups.[11] Much like the ‘unmarked’ status of whiteness, which reserves for itself a rather nebulous yet nonetheless privileged vantage point, certain cultural values — heterosexist cultural values among them — permeate what otherwise seems an objective provocation doctrine.
Finally, Part V of the article examines both the explicit and veiled heterosexism informing provocation and HAD cases. Not only do the cases considered reinforce just how much of a fiction the ‘ordinary person’ test of provocation law is, these cases confirm that the objective standard is predetermined by the dominant heterosexist culture. As the High Court case of Green v The Queen[12] and various other HAD cases demonstrate, the petitioning of dominant cultural values is the defence strategy deployed in many provocation pleas.
As HAD is the focal point of this inquiry, it is useful at this point briefly to explain HAD and its operation in provocation law. HAD is a de facto defence incorporated into pleas of self-defence and provocation. In the context of provocation HAD operates to partially absolve the accused’s homicidal act, converting what would otherwise be murder into a manslaughter conviction. It is the victim’s nonviolent homosexual advance that constitutes the provocative act. Although HAD is often used interchangeably with Homosexual Panic Defence (‘HPD’), HPD is premised on the accused having a latent homosexual tendency which causes an ‘uncontrollably violent response when confronted with a homosexual proposition.’[13] A spate of New South Wales cases,[14] culminating in the High Court decision in Green, has cemented HAD’s place in Australian provocation law.
For a defence described as ‘nothing less than legally sanctioned homophobia’,[15] HAD has generated remarkably little interest in the legal arena. As one commentator suggests, masculinist scholars refrain from discussing HAD for fear of being labelled ‘gay-friendly’ or ‘homosexual’, while some feminists, otherwise critical of decisions such as Green, remain silent, perhaps out of a desire to retain provocation as a defence for battered women who kill their abusive partners.[16] In view of the relatively little attention devoted to HAD, this article attempts to add a new dimension to the HAD commentary in this country.
While HAD has been brought to the fore by the High Court decision in Green, it is not at all a recent innovation in Australia, nor for that matter in other jurisdictions. Graeme Coss cites two 1950s English cases in which allegations of HAD were entertained and ultimately rejected.[17] A HAD argument was also raised in R v Howe,[18] the first High Court case to approve the doctrine of excessive self-defence in Australia. More recently, law academics, among others, have expressed considerable disquiet over the HAD arguments surfacing in murder trials throughout Australia.[19] In particular, HAD and the decision in Green spurred Adrian Howe into renewing her campaign to have the provocation defence abolished.[20] Coverage of HAD in the gay press also prompted responses from the New South Wales government as well as law reform bodies considering the abolition of provocation.[21] What follows is a brief review of the various Australian responses to HAD.
Australian commentaries are almost unanimous in their condemnation of HAD.[22] These critiques consider HAD to be the manifestation of a heterosexist and homophobic legal regime. Dean Kiley, for instance, identifies the law’s complicity in homophobia by providing ‘A Brief Guide for the Perplexed Juror’ whereby ‘panic > self-defence <=> acquittal’ and ‘rage < provocation <=> mitigation’.[23] HAD is further depicted as a ‘glory hole’ (read ‘loophole’) that lawyers exploit to rouse the prejudices that jurors (may) have toward gay men.[24]
The theme of prejudicial jury verdicts is certainly prevalent among HAD critiques. Peter Johnston, commenting on the unreported Victorian decision R v Murley,[25] suspects that the acquittal in that case cannot be attributed to a successful plea of self-defence.[26] The victim in Murley, 65 year old Joe Godfrey, was nearly decapitated and stabbed 17 times in the head, neck and chest after allegedly making a pass at Murley. According to Johnston, Murley’s (excessively) violent response to the alleged nonviolent advance, when he had ample opportunity to retreat, could hardly be termed ‘necessary’.[27] Johnston submits that the acquittal can only be explained by a perverse or sympathetic jury verdict.[28] Similar inferences may be drawn from Christopher McKinnon’s acquittal for the murder of a homosexual man (who had allegedly made homosexual advances towards McKinnon).[29] The jury acquitted McKinnon even though he had boasted to his friends that he had ‘rolled a fag’.[30]
Nor should the conduct of judges be beyond reproach. One need only consider the clemency Cummins J extended to John Whiteside and Kristian Peter Dieber for the highly publicised homicide of gay man Keith Hibbins.[31] In that case, Whiteside and Dieber chased, bashed and ultimately killed Hibbins in the mistaken belief that he and his partner had sexually assaulted a woman. Both men were sentenced to three years’ imprisonment. However, Cummins J suspended the whole of that term save the time both men had served in remand.[32] Although the Victorian Director of Public Prosecutions successfully appealed against the leniency of the sentence, this begs the question: would the action have been necessary were the victim anything other than a gay man?[33] The fact that this was not a HAD case is beside the point. Judicial attitudes, as well as jury verdicts, go some way to answering the question of ‘why the defensive fictions of apocalyptic poofs work so well.’[34]
Of course, gay men are not the only victims of heterosexist and homophobic defences. Consider the law’s portrayal of murdered lesbian women. While these are not strictly HAD cases, they provide further evidence of the law’s negative construction of homosexuality. One example Howe raises is the decision in Lovec v The Queen,[35] where a homosexual relationship — a lesbian relationship — was depicted as ‘immoral behaviour’ that caused ‘considerable concern’ to the defendant.[36] Intermingled feelings of outrage and love for ‘his’ child ‘drove’ the defendant to kill his ex-wife, her partner and the child.[37] The sexed nature of provocation law is hardly surprising given the protestations feminists have directed at cases of sexual provocation, where women are said to have ‘provoked their own demise’.[38] In these scenarios the male defendant alleges a loss of self-control because of some provocative slight emanating from the victim. Whereas in HAD cases an unwanted sexual advance is the precipitative act, in cases of sexual provocation mere confessions of adultery, or the woman indicating that she wants to leave, will suffice.[39] Specific cultural assumptions about unruly women being somehow blameworthy or partially deserving of their own deaths may well be linked to the latest aspersions that courts, including the High Court, have assembled about gay men.
Critiques of the High Court decision in Green comprise the latest chapter in the theoretical responses to HAD. These theorisations are as varied as David Marr’s belief that the judicial divide in Green is referable to the judges’ religious affiliations[40] and Adrian Howe’s Foucauldian-inspired analysis of the judgments in Green as ‘a plethora of ignorances’ operating as ‘part of particular regimes of truth’.[41] Intriguing though these arguments are, they are put to one side for I do not wish them to detract from the overwhelming critical point: that Green represents a new low watermark in Australian provocation law.
A brief rehearsal of the facts explicates the injustice of Green. Malcolm Green first stood trial for the murder of his friend, Donald Gillies, in 1993. In support of his pleas of self-defence and provocation, Green sought to adduce evidence of Gillies’ unwanted sexual advance. It was alleged that Gillies, aged 36, had climbed into bed with 22 year old Green, at which point he made contact with the accused’s buttocks and penis. Almost immediately, the ‘gentle’[42] advances of Gillies were met with approximately 35 retaliatory punches, the repeated banging of his head into a wall and the infliction of 10 stab wounds. The advance evidently reminded Green of the sexual assaults he believed his father had perpetrated against his sisters. Green did not witness these assaults. At first instance Green was convicted of the murder of Gillies.[43] Following an unsuccessful appeal to the New South Wales Court of Criminal Appeal,[44] the matter proceeded to the High Court. The question for consideration was whether the trial judge’s refusal to admit evidence of Green’s ‘special sensitivity to sexual interference’ and ‘his family history which explained that sensitivity’ constituted a substantial miscarriage of justice.[45] By a majority of three to two, the Court held that a substantial miscarriage of justice had occurred and a new trial was ordered.
The decision in Green has been roundly condemned.[46] Both Howe and Bradfield argue that the High Court in Green has endowed the ordinary person of provocation with homophobia.[47] This argument is supported by Brennan CJ’s assertion that ‘[a] juryman or women would not be unreasonable because he or she might accept that the appellant found the deceased’s conduct “revolting” rather than “amorous”.’[48] Bradfield further maintains that importing HAD into the provocation defence ascribes the characteristic of homophobia to the ordinary person in the second limb of the objective test.[49] Such ascription appears contrary to Australian authority requiring that provocation be tested both subjectively and objectively.[50] Moreover, each of the majority judges in Green was at pains to exclude evidence of sexual interference and familial sexual abuse from the second limb of the objective test.[51] While not going quite so far as Bradfield, Howe does contend that, as a result of the majority judgments in Green, a successful provocation defence is all the more likely if the accused links HAD with a memory of sexual abuse — what Brennan CJ terms ‘the sexual abuse factor’.[52]
For Howe, not even the dissenting judgments are beyond reproach. Although less offensive than the majority judgments, Howe dismisses Kirby J’s claim that the principle of equality reflected in the objective standard ensures equal treatment for all ‘sexed identities’ in provocation cases.[53] Indeed Kirby J disregards the vast number of women and gay men who are the victims of spurious provocation defences.
Perhaps the most disconcerting aspect of Green is the High Court’s characterisation of the victim as a ‘sexual aggressor’.[54] Howe and Bradfield lament the Court’s equation of a homosexual advance with a homosexual attack.[55] This ensures that courts will continue to distinguish a nonviolent homosexual advance from a nonviolent heterosexual advance.
While the High Court was deciding Green, the HAD phenomenon was attracting the scrutiny of law reform efforts mooting the abolition of the provocation defence.
These official responses to HAD are confined almost exclusively to New South Wales. The exception is the Discussion Paper, Fatal Offences against the Person, issued by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (‘MCCOC’).[56] Curiously, while the MCCOC Discussion Paper cites the decision in Green as one ground for recommending the abolition of the provocation defence, discussion of HAD is comparatively sparse.[57] Equally bizarre, the MCCOC queries why the law partially excuses a man who kills another in response to an alleged homosexual advance, and in doing so cites literature critical of HAD, yet it fails to discuss the most compelling of grounds for abolishing provocation or even circumscribing the operation of HAD. Although the MCCOC accepts that provocation is ‘gender biased’ and ‘unjust’,[58] it does not clearly articulate the most persuasive argument for dispensing with provocation, namely, that the defence is a ‘profoundly sexed excuse for murder’.[59]
Compare the consideration given to HAD by the New South Wales Law Reform Commission (‘NSWLRC’) in its report, Partial Defences to Murder: Provocation and Infanticide.[60] It advocated retaining the provocation defence but did not recommend legislative reform of HAD. It found that excluding nonviolent sexual advances from provocation, apart from imposing ‘unworkable restrictions’ on the legislation, would exclude cases that should be considered on their merits.[61] The NSWLRC instead proposed a test requiring juries to apply their understanding of community standards on a case-by-case basis.[62]
The proposal of the NSWLRC was criticised in the NSW Attorney-General’s Working Party’s final report on HAD.[63] The Working Party considered that the reformulated test of the NSWLRC would fail to remedy the problems inherent in HAD and its application to the provocation defence. A jury could conceivably apply the standards of a prejudiced, homophobic community when assessing provocation.[64] The Working Party resolved that change to the law of provocation in NSW, as enunciated in Green, could only be effected through legislative reform.[65] Accordingly, the Working Party recommended changes to s 23 of the Crimes Act 1900 (NSW) to preclude nonviolent homosexual advances from forming the basis of a provocation defence.[66] Furthermore, the Working Party recommended ‘a court of morals direction’.[67] That is, a judicial direction would be given ‘in any trial of a violent offence in which the unusual sexuality of the victim has been placed before the jury.’[68] Jurors would be directed to reach their decision without reference to any personal sympathy or animosity towards the victim or the accused, and would also be prohibited from casting judgment on the morality of the victim’s behaviour.
Clearly, the Working Party’s recommendation, that HAD ought to be circumscribed legislatively, is laudable. HAD will, however, remain operative in other jurisdictions unless similar measures are adopted.[69]
Moreover, the inevitable loopholes discovered by astute defence lawyers make any reform of the provocation defence problematic. For example, the amending legislation might not cover the sexual abuse factor in Green. Commentators tend to overlook the totality of factual circumstances grounding a successful provocation defence. An example is Helen Brown’s proposal to restrict the availability of provocation in three specific circumstances, including alleged nonviolent sexual advances.[70] The other bars to provocation proposed by Brown are where a defendant alleges provocation due to the deceased leaving, attempting to leave or threatening to leave an intimate sexual relationship, and where a defendant alleges provocation because of suspected, discovered or confessed infidelity. Unfortunately, Brown’s prohibitions would not extend to the decision in Masciantonio, a case in which a host of factors combined to ‘provoke’ the accused. The provocative conduct included: the deceased’s infliction of physical assaults on his wife (the accused’s daughter), his lack of financial contribution throughout the marriage, his failure to accompany his wife at family gatherings, his appropriation of various items purchased by his wife as well as the abandonment of his wife and children.[71]
It is also doubtful whether the Working Party’s proposed judicial direction will succeed in ameliorating homophobia when some jurors and members of the judiciary are themselves homophobic. An ironic example is the outcome of Malcolm Green’s new trial, ordered by the High Court, in which the jury returned a verdict of manslaughter.[72] While Green’s custodial sentence of 10 years and six months may not seem unduly lean for a homicide, the sentence of 15 years in the original trial was effectively reduced by a third. To conclude, the success of the provocation plea in Green’s new trial serves as a stark reminder of the resilience of homophobia in the law.
Responses to HAD are still in an emergent phase in Australia. While critical scholars have undeniably enlightened the analysis of HAD, these studies are only recently beginning to inform the recommendations of law reform bodies. Even then, the most persuasive objection to HAD — that it is a profoundly (hetero)sexed excuse for murder — has not been developed to its full potential. I suggest that meaningful reform of the provocation defence cannot properly occur until due regard is had to the role that dominant cultural assumptions play in provocation law. The theme of culture is explored in Part III, in which I develop my argument that provocation operates as Australia’s chief cultural defence.
Talk of culture in Australian academic and judicial forums, in relation to provocation law, has almost exclusively focused on the issue of whether cultural considerations should inform provocation’s objective standard. Indeed, in 1990 the High Court evoked a mild debate when it unanimously held in Stingel[73] that while the accused’s personal attributes may inform the gravity of the provocation, only youth is determinative of whether an ordinary person could have lost self-control as the accused did. The Court reasoned that equality before the law can only be achieved through all members of the community observing a minimum level of self-control.[74] This show of unity by the High Court proved short-lived. Paradoxically, equality formed the basis of McHugh J’s dissent in the subsequent High Court case examining provocation. Explicitly influenced by the work of Stanley Yeo, McHugh J stated in Masciantonio that
unless the ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control results in inequality before the law. Real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class but does not reflect the values of those minorities.[75]
With respect, this extract from the judgment of McHugh J is revealing for its narrow depiction of culture and is illustrative of the predilection judges, and most legal commentators, have for equating ‘culture’ with ‘ethnicity’. Culture is merely a substitute term for ethnicity — and only minority ethnicity at that. As will become clear, this view of culture has considerably impoverished the jurisprudence of Australian provocation law. The possibility that dominant cultural assumptions inform the law of provocation escapes the judges deciding these cases, and I would suggest, the legal commentaries flowing from their judgments.
Subsequent discussions of culture in Australian provocation law are clearly left wanting in the wake of McHugh J’s dissent in Masciantonio. Take, for example, the renewed support that McHugh J’s dissent has roused among academics advocating a ‘multicultural model’ of provocation.[76] Central to this new-found support is the avowed belief that the objective standard produces inequality as it impedes a particular class of defendant — the ‘ethnic’ or ‘cultural’ minority defendant — from mounting a successful provocation defence.
While it is well to champion equality for ethnic minority defendants, McHugh J and other proponents of a multicultural model of provocation ignore the very inequality that the objective test poses for battered women resorting to lethal self-help. On a purely doctrinal basis it is doubtful whether an ordinary person has lost self-control when there is ample evidence of premeditation. Yet, for many battered women asserting a provocation defence, there is often a reasoned decision to kill the abusive partner hours in advance.[77] To meet the ‘objective notion of ordinariness’ required by provocation law,[78] many of these women adduce evidence that they were suffering from ‘battered woman syndrome’ and, in the process, are pathologised.[79] Even in States such as New South Wales, where there has been a relaxation of the suddenness requirement, commentators have argued that such ‘cosmetic changes’ do little to improve the availability of the provocation defence. Women who kill in response to domestic violence must still satisfy a ‘distinctly male epistemology’ by providing evidence of a loss of self-control, when in actual fact these women are responding to the very real danger of imminent violence.[80] In the words of the MCCOC, ‘[d]efining the issue in terms of losing control — being ‘provoked’ — is to distance the inquiry from the reality. This results in the distortion of women’s experiences.’[81]
Sue Bandalli also recounts the English experience, where an interesting contrast emerges between the provocation pleas of males and battered female spouses.[82] In one case, a husband strangled his wife — the alleged provocation being a tirade of verbal abuse spanning two hours.[83] Conversely, in R v Ahluwalia,[84] a case in which a female spouse killed her husband, the trial judge sought to trivialise evidence of domestic violence endured by the woman, as well as evidence of battered woman’s syndrome.[85]
So, what is it that motivates a court to cast aspersions on the testimony of a battered woman while readily accepting the nagging behaviour of a wife as sufficient provocation? Why is it that some judges are attuned to the plight of ethnic minority defendants yet remain oblivious to the adversities confronting battered women? I find myself agreeing with the sentiments of Bandalli, that ‘the success or failure of a provocation defence depends on [an] ingrained cultural judgment’.[86] Thus, McHugh J is to the point when he concedes that the objective test of self-control fails to achieve equality before the law inasmuch as it reflects dominant values. It is unfortunate then, that his Honour’s restrictive view of culture as synonymous with ethnicity deflects inquiry from the overwhelming evidence that dominant cultural judgments, specifically masculinist and heterosexist cultural judgments, ultimately determine the success or failure of a provocation plea.
The narrow construction of culture as synonymous with ethnicity is also reflected in the Australian Law Reform Commission’s (‘ALRC’) proposal to implement a ‘cultural defence’ in recognition of the perceived disadvantage ethnic minorities encounter when objective standards are applied to them.[87] A cultural defence absolves or partially mitigates liability for a criminal offence when the perpetrator acts according to the dictates of his or her culture.[88] Ultimately, the ALRC rejected the introduction of a cultural defence predominantly on the basis that the law should not discriminate in favour of any class or group, including ethnic minorities. Much like the High Court’s reasoning in Stingel, the ALRC determined that such a defence would ‘violate the principles of equality before the law and equal protection of the law.’[89] While the ALRC’s analysis of culture and the cultural defence seems innocuous enough, discussion in the American legal academy foreshadowing the introduction of a cultural defence in that country highlights major flaws in the ALRC’s reasoning. Again, these deficiencies arise from the inadequate attention devoted to the diverse meanings of culture and their current deployment in provocation law.
Minority feminist scholarship interrogating the notion of ‘culture’ exposes the cursory analysis of culture undertaken by the ALRC and would-be law reformers of Australian provocation law. Talk of a cultural defence, Maguigan argues, overlooks the judicial practice of using established defences to procure cultural information.[90] Daina Chiu’s analysis of the United States decision in People v Dong Lu Chen[91] illustrates how courts take account of culture notwithstanding the informal status of the cultural defence in that country.[92] Although Chen was not a provocation case, the accused avoided a murder conviction for the homicide of his wife. Pincus J accepted that in Chinese culture a wife’s infidelity is a ‘stain’ on her husband’s honour.[93] That the accused was a ‘product of his culture’ was ‘something that made him crack more easily.’[94] American legal commentator James Sing suggests that the conviction for second-degree manslaughter may be explained by the Court equating cultural evidence led at Chen’s trial with a form of temporary insanity.[95] However, Sing later retracts his analysis, instead proferring the view that the cultural evidence ‘served to shed light on how the defendant was provoked.’[96] Put more bluntly, Chiu credits the success of a cultural defence in Chen with the view shared by Chinese and Anglo-American culture that a woman’s adulterous behaviour can be sufficient provocation.[97]
In the Australian context, it has also been noted that a husband capturing his wife in flagrante delicto is enough to establish provocation, as is the mere hint of promiscuity on the part of the woman.[98] An infamous example of the latter is Moffa,[99] a case in which the victim, Mrs Moffa, informed the accused (her husband, a man of Italian origin) of her intention to leave, threw nude photographs of herself at him and added (allegedly) that she had enjoyed ‘screwing with everybody on the street.’[100] A majority of the High Court in Moffa chose to substitute the original murder conviction with a conviction for manslaughter. According to Jenny Morgan, the majority verdict was facilitated in part by the emphasis accorded to Mrs Moffa’s alleged promiscuity.[101] In support of her assertions, Morgan offers the dissent of Gibbs J in Moffa[102] and the judgment of Moffitt J in R v Tsigos.[103] Unlike the judges comprising the majority in Moffa, Gibbs J and Moffit J chose to evaluate the provocation pleas in the context of the wife’s repeated attempts at separation. The pertinent issue for these judges was the dissolution of marriage rather than the wife’s sexual conduct. Tellingly, this reading of the ‘facts’ by Gibbs J and Moffitt J did not support a finding of provocation.[104]
In summary, it is instructive to note the considerable import minority men’s allegations of promiscuity and adultery have in provocation cases. It becomes evident that, in spite of the ALRC’s fears of a cultural defence jeopardising equality before the law, cultural values have already infiltrated the provocation defence. This is especially so when courts heed those values common to dominant and ‘other’ cultures, that is, when courts engage in the exercise of recognising ‘cultural sameness’. Without doubt, the appeal for a provocation defence receptive to cultural needs has already been granted in part.
The most discerning analysis of culture to date is arguably that provided by Sherene Razack. In her now classic piece on the culturalisation[105] of racism and sexism, Razack describes how power relations are subsumed under culture to reproduce racism and sexism in cases of sexual violence. Razack’s insights into culture are incisive. They challenge the inclination of the ALRC and other reformists to explain away violence in immigrant and indigenous communities as a cultural attribute. Not only is violence considered a product of male domination, it is through the auspices of culture that male privilege is left unchallenged. Indeed, until recently, sensitivity to cultural diversity in pluralist societies and, specifically, in the courtroom, has meant that ‘multiculturalism must be seen to be done, as noisily and publicly as possible’.[106] Yet this development is often at the expense of indigenous and minority women, with perpetrators of sexual assault routinely enjoining cultural factors to mitigate their sentences. The culturalisation of sexism becomes readily apparent when this leniency in sentencing is viewed not as a judicial display of cultural sensitivity, but rather as the bonding of ‘white’ and ‘brown’ patriarchs in the administration of their brand of justice.[107] Ironically, it is through the guise of cultural sensitivity that racism becomes culturalised. Recognition of ethnic diversity in tandem with racial tolerance discounts the existence of racism. The obvious paradox is that the commitment to equality expounded by McHugh J and other supporters of a multicultural model of provocation also functions as a covert (albeit unconscious) form of racism.
Razack further points out that culture does not merely suppress the domination occurring in minority and indigenous communities when she remarks that ‘it is the dominant group who controls the interpretation of what it means to take culture into account.’[108] What counts as culture is determined by the white legal system. Indeed, the perception that culture inheres exclusively in minority ethnicity compels courts to hear cultural evidence through expert testimony. Members of the relevant culture are thus subordinated through the ‘descriptive control’ of the white legal system.[109] In addition, a process of ‘epistemic violence’ is engendered, whereby dominant white values appear decidedly progressive in view of the static anthropological depictions of monolithic and misogynist minority cultures.[110] Yet, it is precisely this preoccupation with the culture of minority ethnic groups — this othering of their cultures — that enables law reform bodies, eminent judges and otherwise benevolent scholars to ignore the obvious cultural factors at play in provocation cases.
Razack’s thorough analysis of culture, particularly the culturalisation of racism and sexism, provides a useful model for challenging the conventional interpretations of culture offered by dominant groups. Razack’s work lends considerable support to the first limb of my thesis, that provocation is a cultural defence. In Part IV, I describe how Razack’s account of culture yields valuable insights into the cultural assumptions operating in provocation cases involving ethnic minority defendants. However, before I do so, I want briefly to consider the work of critical white theorist Ruth Frankenberg. By providing a distinct yet complementary framework in which to consider the idea of culture, Frankenberg’s work becomes critical to the second limb of my thesis, that provocation is a heterosexist cultural defence.
In her thought-provoking thesis on the social construction of ‘whiteness’, Frankenberg advances the proposition that ‘white culture’ is itself a culture.[111] Whiteness is viewed as a dominant, privileged vantage point shaping white people’s perceptions of themselves and others. Central to Frankenberg’s thesis is a conceptualisation of whiteness as ‘a set of cultural practices that are usually unmarked and unnamed.’[112] White people reserve for themselves an unmarked, neutral status while other cultures are designated ‘cultural’.[113] In other words, culture, race and even sex become markers which the dominant group use to ‘exclude, contain and entrap’ others.[114]
The unmarked status of whiteness is surely troubling. Whiteness becomes the normative model of culture against which other cultures are evaluated and measured. Arguably more unsettling is the amorphous aspect of whiteness — where a white person can only identify him or herself as that which he or she is not. The cumulative effect of the normativity of whiteness is that other cultures are deemed ‘lesser, deviant, or pathological.’[115]
Frankenberg’s thesis is reminiscent of the link queer theorists have drawn between essentialist reasoning and markings. Queer theorist David Halperin argues that homosexuality at once stabilises and supplements heterosexuality.[116] Heterosexuality relies on homosexuality to give itself meaning, yet homosexuality is simultaneously defined as that which heterosexuality is not. Halperin identifies a fascinating and telling rationale for the construction of this ‘heterosexual/homosexual binarism’.[117] Could it be that heterosexuality accords itself a ‘privileged’ and ‘unmarked’ status by ‘problematising’ and ‘marking’ homosexuality?[118] There is much to commend the idea that the unmarked status of heterosexuality empowers the dominant heterosexual culture to mark homosexual men as deviant in HAD cases. Analogous to Frankenberg’s explanation of whiteness as the normative model of culture against which other cultures are assessed, an unmarked heterosexist culture accounts for the negative portrayal of homosexual men in provocation law. However, before I discuss the resonance Frankenberg’s theory shares with HAD, I turn to the question of provocation as a dominant cultural defence.
In this section I survey case law involving ethnic minority defendants to argue that provocation is a dominant, Anglo-Celtic cultural defence. I have already responded affirmatively to the question of provocation as a cultural defence. The cultural values of minority ethnic defendants can, and often do, infiltrate the provocation defence. This resort to ‘cultural sameness’ reveals how dominant and minority cultural assumptions about ‘wayward’ women converge to excuse men for sexed violence, regardless of their ethnicity.
It would, however, be remiss of me to continue with this line of argument. First, are the repercussions of provocation law comparable for ‘Western’ and ‘minority’ women? Poststructuralist feminists warn of conceiving of race merely as an adjunct to the experiences of Western women.[119] For minority women, variables of race, gender and class often intersect to produce unique experiences of disadvantage and oppression. Second, a ‘cultural sameness’ approach does not sufficiently probe the extent to which dominant cultural values determine what counts as culture in provocation cases. So, to examine how a ‘culture-blind’ provocation law acts as a dominant cultural defence, I attempt to show how racism and sexism become culturalised, that is, how culture gives rise to racism and sexism in provocation cases involving ethnic minority defendants. The culturalisation of racism and sexism is a necessary corollary to the idea that provocation is a dominant cultural defence.
Before I recount the ‘facts’ of R v Georgatsoulis,[120] a 1994 South Australian case in which a Greek immigrant man was convicted of murdering Lisa Mazzone, I emphasise that, as is the situation with all provocation cases, the given factual scenario is always that alleged by the defendant. The victims, of course, are forever silenced.
In Georgatsoulis, the accused, a 50 year old bachelor, led evidence of Mazzone’s toying with his affections by asking for substantial sums of money and accepting various gifts he bought her. A quarrel at a Greek restaurant, resulting in Mazzone’s early departure, subjected Georgatsoulis to ‘considerable embarrassment’ before the Greek patrons. Georgatsoulis then remonstrated: ‘[s]ee what women are. They are whores[,] they are whores. Well she is not going to get too far. I am going to fuck her.’[121] Later that day Georgatsoulis censured Mazzone for her actions at the restaurant, whereupon Mazzone dared him to use the knife he held, uttering the words ‘[y]ou can’t do it because I know that you love me and I love you.’[122] At this point, Georgatsoulis allegedly lost self-control and thereupon killed Mazzone. At trial his defence of provocation was rejected.
The chief ground of appeal was the possible prejudice owing from the trial judge’s failure to explain adequately to the jury the objective test of provocation. It was argued that the jury should have been directed to heed the accused’s perception of the gravity of the provocation when assessing loss of self-control. King CJ, with whom Mohr and Nyland JJ agreed, found that the trial judge did not expressly distinguish the gravity of the provocation from the level of self-control required of the ordinary person.[123] The trial judge had stated:
Given the accused’s cultural background you may allow in your hypothetical, ordinary man an attitude towards women which would not be ordinarily accepted by most people in the community. But it must be an ordinary man with normal powers of self-control. So that you take as your standard or ordinary person ... one with the general characteristics of the accused, himself.[124]
This is clearly at odds with the common law of provocation. When determining whether an ordinary person could have lost self-control as the accused did, subject to the qualification of youth, the ordinary person is divested of the accused’s cultural background and any other personal characteristics. However, the failure to convey accurately the concept of the ordinary person did not operate to Georgatsoulis’s detriment. The Court noted that the jury’s assessment of the hypothetical ordinary person’s capacity for self-control would have been informed by the accused’s cultural background.[125] Mistakenly introducing personal characteristics into the second limb of the objective test could only result in a lowering of the minimum level of self-control expected of the ordinary person. The appeal was dismissed primarily on this basis.
What is most relevant for present purposes is the Chief Justice’s ready endorsement of Georgatsoulis’s cultural background and attitude towards women as referable to the gravity of the provocation.[126] These were factors going to the ‘keenness’ with which Georgatsoulis would have felt the offence.[127] Thus, the Court in Georgatsoulis was of the view that an accused’s cultural background substantially alters the ordinary person’s perception of the gravity of the alleged ‘provocative’ conduct.
The culturalisation of racism is at once apparent in Georgatsoulis. The trial judge’s comment, ‘I suppose we should allow for perhaps a different attitude towards women for many people in the community because of a cultural background’,[128] met with the Chief Justice’s approval. Indeed, King CJ remarked that the trial judge’s explanation of the ordinary person test, although falling ‘far short of the ideal ... conveyed the legal concept in a way which, having regard to the facts of the case, would have enabled the jury to grasp its true meaning.’[129] The apparent deference, of both the court of first instance and the appellate court, to Georgatsoulis’s Greek culture belies any allegation of Anglocentrism. Nevertheless, in admitting evidence of Georgatsoulis’s cultural background there is a disturbing inference that Greek culture, as opposed to the dominant Australian culture, is far more patriarchal and regressive in its treatment of women. Indeed, the trial judge directed the jury that ‘[g]iven the accused’s cultural background you may allow in your hypothetical, ordinary man an attitude towards women which would not be ordinarily accepted by most people in the community.’[130] This marking and problematising of the accused’s cultural background implies that Australian culture is far more enlightened than Greek culture — inasmuch as Australian men would not ordinarily retain such outdated views. But are immigrant women and women of diasporic cultures[131] subsumed by patriarchy while their Western counterparts are not? Leti Volpp rejects this depiction of immigrant cultures as inevitably patriarchal and of feminism as an exclusive attribute of the Western world.[132] This brand of feminism is eschewed as imperialist and racist, for it assumes that immigrant women are in acute need of initiation into the liberalised West. The binary instituted between a progressive West and regressive Third World is certainly not without contention. As Chandra Mohanty declares, the so-called liberation of Western women is a ‘product of discursive self-representation’ made possible through illusory and essentialist comparisons with other less privileged classes of women.[133] A similar process is discernible in Georgatsoulis. The ‘enlightened’ attitude towards women possessed by ‘most people in the community’ — including, by implication, most Australian men — is achieved by a contrived judicial reference to a backward Greek culture. This may explain why courts excuse Anglo-Australian men with little hesitation for their response to the ‘provocation’ of their paramours,[134] while strictly adhering to the objective standard when scrutinising the cultural evidence of ethnic minority men. What at first appears to be an objective provocation defence is, upon closer examination, a clandestine yet effective means of filtering dominant cultural assumptions into the law.
In the 1991 Northern Territory Court of Criminal Appeal case of Mungatopi v The Queen,[135] the accused, Mungatopi, was an indigenous inhabitant of Bathurst Island appealing a conviction for the murder of his wife. Throughout their marriage there were arguments over the deceased’s ‘failure’ to care properly for their two children. Mungatopi was further aggrieved by his wife’s refusal to return home from a card game being played for beer. While living on Bathurst Island the couple separated and Mungatopi formed the view that his wife had been unfaithful. The couple then resumed cohabitation, and now living in Milikapiti, Mungatopi again suspected that his wife was being unfaithful, a suspicion fuelled by outsider accusations of the deceased playing up with ‘Ted’. The victim denied these accusations. On the day that Mungatopi had seen his wife and Ted at a social club, the deceased refused to accompany him home. This refusal prompted Mungatopi to punch and kick his wife. Adding to Mungatopi’s frustration was his inability to locate the whereabouts of his eldest daughter. Each of these factors combined to ‘provoke’ Mungatopi into beating his wife to death. The appeal against the trial judge’s failure to leave provocation to the jury was ultimately dismissed.
The decision in Mungatopi is significant for the Court’s rejection of the Anglo-Celtic ordinary person test in Stingel — a fact seized upon by Stanley Yeo. Yeo applauded the Court’s ruling that the ordinary person in s 34 of the Criminal Code 1983 (NT) includes ‘an ordinary Aboriginal male living today in the environment and culture of a fairly remote Aboriginal settlement’.[136] For Yeo, Mungatopi did ‘not run counter to Stingel since the homogenous nature of such a community means that the minimum powers of self-control ... are shared by every member of the community.’[137]
Substitution of the ordinary Aboriginal man for the ordinary person in Mungatopi also provided a leeway for the defence to lead evidence of Aboriginal customary law. The specific customary law noted in Mungatopi was one authorising a husband to punish his wife for failure to look after their children.[138]
Mungatopi is perhaps the best example of the culturalisation of racism and sexism in Australian provocation law. The judgment in Mungatopi is no less culturally inscribed than that of Georgatsoulis, notwithstanding the Court’s inclusion of the ordinary Aboriginal man in the objective standard. It is precisely this moderation of the objective standard that is most troubling. In each limb of the objective standard, the ordinary person is imbued with the values and beliefs of a hypothetical ordinary Aboriginal man. Evidence of customary law may then be used as evidence in support of the defence case that an ordinary person could have lost self-control as the accused did. Unfortunately, this has the disturbing potential to explain away the accused’s violence, thus realising Razack’s fear of culture facilitating sexist attitudes.
While the Court in Mungatopi acknowledged that customary law would not sanction a husband disciplining his wife ‘beyond merely hitting such a wife’,[139] the danger of culturalising sexism still exists in the Court’s deference to Aboriginal culture in the objective standard. Sexism is aided by an objective standard indifferent to the question of who defines culture and a standard oblivious to certain values intruding upon its purported objectivity. Richard Delgado’s explanation in the context of the ‘reasonable person’ standard in North American law is particularly compelling:
Powerful actors ... want objective standards applied to them simply because these standards always, and already, reflect them and their culture. These actors have been in power, their subjectivity long ago was deemed ‘objective’ and imposed on the world.[140]
Arguably, the powerful actors in Mungatopi are the Aboriginal men whose appeals to cultural imperatives are convenient excuses for inflicting violence on Aboriginal women.[141] Perhaps the better view is that the powerful actors are the judiciary who have ‘bonded’ with these men to administer what they consider to be justice. Fortunately, the culturalisation of sexism was averted in this case. The Court insisted that the deceased’s conduct could not have sufficiently deprived Mungatopi of the power of self-control to the extent that he would beat his wife to death.
However, racism in Mungatopi was culturalised through the Court’s deference to Aboriginal customary law and the tolerance this supposedly extends to Australia’s indigenous peoples. Recognition of customary law and the perceived need for a provocation defence with an ‘objective Aboriginal male’ standard each rest heavily on essentialised, stereotypical and hence racist notions of Aboriginal Australians as invariably different from other Australians. The Court in Mungatopi never once questioned whether what counts as culture is contested within indigenous communities. Similarly, the Court failed to consider whether customary law is observed by members of the Bathurst Island community, or even Mungatopi himself. The judges in Mungatopi depict Aboriginal culture — or more accurately Aboriginal cultures — as predetermined by and compatible with ‘hermetically sealed’ customary laws.[142] This is not to say that customary laws are rarely, or never, observed by Aboriginal communities. Yet the paradox does arise whereby the regard had for Aboriginal ‘culture’ also conceals racism. Although Mungatopi’s provocation defence did fail, a dominant cultural defence remains available for Aboriginal men provoked by ‘their’ women so long as Northern Territory courts can insist on a provocation defence with an ‘ordinary Aboriginal male’ standard.
Implicit in my analysis of Georgatsoulis and Mungatopi is the hurdle posed by the objective standard. By excluding a consideration of ethnicity in the second limb of the objective test, it seems that ethnic minority defendants are often denied a provocation defence. Mungatopi is an anomaly perhaps explained by the Court’s desire to register its commitment to pluralism. Indeed, ever since Stingel, juries must assess the ordinary person’s capacity for self-control without regard to the particular accused’s cultural background. Therefore, cases such as the Victorian decision in R v Dincer,[143] which had allowed for cultural evidence to be considered in both limbs of the objective test, are no longer good law. In that case, Lush J upheld the provocation defence of a Turkish man who fatally stabbed his 16 year old daughter when she left home and commenced a sexual relationship. It is significant then, that in the New South Wales decision of R v Khan,[144] the accused’s provocation defence was successful. While Khan deals primarily with a Crown appeal against the leniency of a two year minimum sentence for voluntary manslaughter, Allen J made some startling admissions about the dominant cultural assumptions underlying provocation law.
The accused in Khan was a Fijian and devout Muslim who invited a friend (the deceased) to live in his matrimonial home following the breakdown of that friend’s marriage. As time passed, the accused became suspicious of a burgeoning sexual relationship between his wife and the friend. One evening Khan informed his wife that he would spend the night at the local mosque, however in view of his suspicions he returned home early. He waited until the two were engaging in sexual intercourse before fatally stabbing his friend, the deceased.
It appears that the success of the provocation defence in Khan hinged on the expert evidence of Mr Humphrey, a Senior Lecturer in Sociology. Humphrey testified that in his study of the Islamic community in Australia he found that Muslims view marital infidelity as a ‘sin’ and a ‘crime’.[145] This evidence further described how the family unit is considered an essential aspect of Islamic culture, its preservation forming ‘a code of honour.’[146] Hence, for the deceased to have engaged in sexual relations with the accused’s wife constituted a grave breach of trust.
What is most intriguing is Allen J’s response to this evidence. Allen J considered that ‘abuse of hospitality can be highly provocative for the irreligious’[147] as well as devout Muslims. As for adultery:
Cultural pressures are manifold. For many men adultery committed with his [sic] wife is an intolerable insult to his manhood and a gross act of betrayal. Violent reaction to adultery is no new phenomenon. It has existed as long as men have been men and doubtless it will continue for as long as men are men.[148]
Here, Allen J neatly encapsulates the dominant cultural assumption underscoring so many sexual provocation cases, namely, that a wife’s adultery excuses sexed violence. It is tempting to view the dicta of Allen J as a return to the cultural sameness approach. The provocative act of adultery knows no cultural divide. This may explain why the second limb of the objective test does not prove to be the usual stumbling block in Khan. Perhaps the convergence of dominant and minority cultural values makes redundant consideration of the accused’s cultural background. But as I have argued, this view of provocation as a cultural defence sidesteps the issue of who decides what counts as culture. The views of Islamic women are notably absent in Khan. Rather, benchmark men and, to a lesser extent, immigrant men, have decided that adultery constitutes sufficient provocation. The failure of Allen J to condemn in any way the sexed violence of the men entering these provocation defences is a clear indication of the culturalisation of sexism. Moreover, the hierarchical relationship between the Australian legal system and members of the ethnic minority culture is left intact by the descriptive control of an Anglo-Australian ‘expert’. The upshot is that the success of the provocation defence in Khan is ultimately dependent on a dominant, Anglo-Celtic cultural judgment about adulterers. Only, this time, an adulterous heterosexual man is the victim.
I have devoted a substantial part of this article to the analysis of cases involving ethnic minority defendants. I have done so because these cases provide incontrovertible evidence of provocation’s status as a dominant cultural defence. As Razack puts it, culture talk ‘packages [ethnic] difference as inferiority and obscures gender-based domination within communities’.[149] My brief survey of provocation cases involving ethnic minority defendants concludes that what counts as culture is predetermined by dominant, Anglo-Celtic standards.
In Part V, I extend my argument that provocation is a dominant cultural defence to the HAD phenomenon. Unlike provocation cases involving ethnic minority defendants, HAD cases are seldom identified as raising cultural issues. As will be seen, however, HAD cases are also culturally inscribed. At this point I wish to reiterate that in no way should the cultural inscription of HAD detract from the dominant cultural assumptions already identified, nor should this discussion be seen as conflating what are very different issues. Clearly, distinct hegemonic forms operate in provocation law. However, it is the heterosexist nature of provocation law which I wish to consider specifically in Part V.
Any discussion of the heterosexist bias in Australian provocation law must begin with the opprobrious High Court decision in Green. I also include in my analysis a number of reported and unreported decisions to forestall the obvious criticism that one judgment is negligible evidence of provocation’s heterosexist culture. I canvass at length the disturbing trend for some defendants to adduce psychiatric evidence to substantiate their HAD allegations. These appeals to psychiatry are the latest manifestation of heterosexism in provocation law. In order to reinforce the argument that provocation is a dominant heterosexist cultural defence, I also examine HAD cases in which defendants are denied a provocation defence.
It will be recalled that Green was a case in which a 36 year old man made nonviolent advances towards his 22 year old friend. That friend, Malcolm Green, retaliated with homicidal rage allegedly induced by a ‘special sensitivity to sexual interference’ and a ‘family history’ of abuse.[150]
A heterosexist culture pervades the majority judgments in Green. The judgment of Brennan CJ is a clear-cut example of this culture. In the estimation of Brennan CJ, jurors could legitimately accept that Green found Gillies’ conduct ‘revolting’ and not ‘amorous’.[151] According to the Chief Justice, the instant case could be distinguished from Stingel, where the defendant had ‘unwittingly’ discovered his former girlfriend engaging in consensual heterosexual activity.[152] These statements in themselves are irrefutable evidence of the dominant heterosexist culture infusing provocation law. Here, Brennan CJ adopts the normative culture of heterosexuality (read Stingel) to construct and evaluate the homosexual advance in Green. While Brennan CJ implies that he is not endorsing homophobia, at one point in his judgment the ordinary person lapses into ‘the hypothetical ordinary man’.[153] As unintentional as this slip may be, the Chief Justice has brilliantly exposed the culturally-laden objective test of provocation law.
In a similar, if not more extreme, vein, McHugh J asserts that it was ‘[t]he sexual, rather than homosexual, nature of the assault’ that was critical.[154] In fact, ‘any unwanted sexual advance’ could, in his Honour’s opinion, form ‘the foundation for a successful defence of provocation.’[155] The notion that any unwanted sexual advance is capable of grounding a successful provocation defence presupposes that identical or like outcomes are assured, irrespective of the homosexual or heterosexual nature of the advance. Yet, as several critical theorists demonstrate, the law operates in deeply sexed ways.[156] Whenever evidence of a nonviolent homosexual advance is led to mitigate a murder charge, the provocative act is constituted by the homosexualised victim’s incorrigible affront to the accused’s heterosexual identity. The fact that sexual identity lies at the heart of Green demonstrates the sexed nature of provocation law. By appealing to the ‘objective’ nature of provocation law, Brennan CJ and McHugh J demolish once again the fiction of a neutral, ordinary person devoid of any gendered or sexed identity. It is the cultural normativity of heterosexuality that enables these judges to cast the homicide of Donald Gillies in unsexed terms.
Equally important, by sidestepping the deep-seated structural and institutionalised heterosexism facing gay men (and lesbian women), the judgments of Brennan CJ and McHugh J affirm the unmarked, heterosexually-laden nature of the provocation defence. The hegemonic force of heterosexuality as manifested in the cultural and institutional arenas of family life, religion and the legal system is conveniently overlooked.[157] Their Honours seem to be engaging in what postcolonial writer, bell hooks, terms a ‘politics of essentialist exclusion.’[158] It is considered by hooks that dominant groups employ essentialist strategies that are ‘firmly buttressed by institutionalized structures of domination’.[159] An institutionalised provocation defence surely acts as a prop for the unspoken divide between heterosexuality and homosexuality. In HAD cases generally, Green being a salient example, heterosexuality is never problematised: it is always homosexuality that is devalued by the law. Judicious appeals to objective standards and denials of the sexed nature of homosexual advances are remarkable examples of judges embracing a politics of essentialist exclusion. Indeeed, judges arguably make these appeals and denials to counter any suggestion that they might be harbouring homophobic convictions. Much like the privileged vantage point of whiteness shaping white people’s perception of other races, so too does essentialist heterosexism account for the unwavering belief of some judges in an ‘objective’ provocation doctrine, one that they believe does not countenance homophobia.
The third majority judgment in Green is also imbued with a heterosexist culture. The principal difficulty with the judgment of Toohey J is the importance he attaches to the ‘sexual abuse factor’. It will be recalled that Brennan CJ coined that term to encapsulate Green’s ‘special sensitivity’ to, and ‘family history’, of sexual abuse. It may also be recollected that the sexual abuse factor was influential in the decision of each of the majority judges to order a retrial.[160] Toohey J was especially engrossed in the idea of the sexual abuse factor as a means of rationalising Green’s violent response to the homosexual advance. One need only consider Toohey J’s finding that a substantial miscarriage of justice occurred because ‘the jury were not directed to have regard to the appellant’s family circumstances in considering his actual reaction or the reaction of an “ordinary person in the position of the accused”.’[161] While Howe describes the judgment of Toohey J as one of a ‘reasonable but reluctant homophobe’,[162] the credit attached to the sexual abuse factor is, I believe, much more disconcerting than any hysterical or blatant homophobia. The success of the sexual abuse factor in Green is an insidious means of heterosexuality asserting its dominant, unmarked status. Any accusation of heterosexism is repudiated by judicial resort to a ‘credible’ and ‘neutral’ psychiatric discourse. The cultural reality of heterosexism in HAD cases becomes debased by the sexual abuse factor. Indeed, the sexual abuse factor in Green serves to conceal the heterosexist values informing the reasoning of the majority judges. It is not surprising, therefore, that Toohey J is only ever identified as a ‘reasonable but reluctant homophobe’.[163] Unfortunately, the complicity of law and psychiatry in heterosexism is becoming entrenched in the psyche of judges deciding HAD cases. It is this disturbing development that I now wish to canvass.
The enthusiasm with which the High Court greeted the sexual abuse factor in Green seems endemic. At about the same time that the High Court decided Green, the New Zealand Court of Appeal handed down its judgment in R v Campbell.[164] While the accused in Campbell did not admit evidence of a ‘sexual abuse factor’, a crucial part of his defence was the so-called ‘flashback theory’. Much like the sexual abuse factor in Green, the flashback theory in Campbell was deployed to support the accused’s provocation defence. At his trial for the murder of Anderson, Campbell alleged that the deceased’s smile and touching of his thigh reminded him of the sexual abuse he had suffered as a child. The look upon Anderson’s face bore a resemblance to that of ‘V’, the ‘paedophile’. Immediately, Campbell’s mind ‘flashed back’ to the time when the sexual abuse occurred. Campbell’s ‘loss of self-control’, as induced by the ‘flashback’, was so great that he hit Anderson with a poker, punched him and struck him in the head with an axe. Campbell later recalled that he was unable to ‘stop what was happening, he felt he was there but someone else was doing the hitting’.[165] According to psychiatric evidence led by the defence, memories of past acts that are suppressed can be unleashed through a particular trigger. The conscious recollection of past events may be experienced as a ‘flashback’ that can cause the subject to act in a volatile manner. Nevertheless, the jury returned a verdict of murder.
The main issue before the appellate court was whether the trial judge erred in his direction to the jury that there must be due proportion between the provocative act and the accused’s response. Such a direction may have misled the jury by elevating proportionality to a requirement of law. Eichelbaum CJ, delivering judgment for the Court, considered that the trial judge had erroneously conveyed this impression to the jury. Crucially, it was noted that a jury looking for due proportion between the insult offered (that is, the homosexual advance) and the accused’s extra-violent reply could only conclude that the response was disproportionate. Accordingly, the proportionality direction frustrated any benefit accruing from use of the flashback theory.[166] This factor alone persuaded the Court of a material misdirection and a new trial was ordered.
A generous reading of Campbell suggests that in New Zealand HAD is condemned. At one point, Eichelbaum CJ expressly states that the ‘mild’ or ‘tentative’ nature of the homosexual advance would not of itself constitute sufficient provocation to leave to the jury. The hypothetical ordinary New Zealander could not have reacted as the accused did.[167] Only if there was a reasonable possibility of the homosexual advance triggering a flashback of the type alleged would provocation be a legitimate defence.[168] Although declining to rule on this issue of fact, the Court seemed concerned to redress the crippling effect that the trial judge’s direction on proportionality had on the defence case. It seems that this direction deprived the accused of what the Court considered to be an otherwise ‘valid’ defence. To be sure, the Court duly noted the Crown contention that ‘the flashback theory was deployed mainly to support provocation based on the appellant’s perception of what he took to be an approach of an indecent nature on the part of the deceased’.[169] The Court also noted the accused’s rational state of mind around the time of the killing.[170]
Nonetheless, there is evidence of heterosexuality’s unmarked status in this case. Reminiscent of the judgment of McHugh J in Green, the Court in Campbell regularly employed euphemisms to describe the homosexual advance. The homosexual advance was ‘an approach of an indecent nature on the part of the deceased’,[171] ‘a real or imagined insult’[172] or just an ‘advance’.[173] Noticeably, the sexed nature of provocation law is not mentioned. Of course, the unmarked, cultural normativity of heterosexuality ensures that this does not occur.
Perhaps the most troubling aspect of Campbell is the significance the Court attached to the ‘flashback theory’. The same is true of Green in respect of the ‘sexual abuse factor’. It appears that the cultural inscription of ‘unmarked heterosexuality’ and ‘marked homosexuality’ is further entrenched through an ‘objective’ psychiatric discourse. Indeed, the charge that HAD is homophobic is invariably met with the response that a successful provocation defence is not the product of heterosexist reasoning, but rather some pseudo-psychiatric complaint ¾ perhaps a ‘sexual abuse factor’ or a ‘flashback’. Consider the indignation of Tom Molomby, Green’s solicitor:
It is both unfortunate and unfair that the case of Malcolm Green should be represented ... as having anything to do with homophobia, let alone encouraging it. Green’s was a most exceptional case. To understand it requires knowledge of [the] facts ...[174]
Needless to say, these ‘facts’ relate specifically to the ‘sexual abuse factor’. Appeals to psychiatric or psychological explanations for what are essentially homophobic HAD defences do not appear overtly heterosexist. Arguably even more so than the law, medicine is regarded as an ‘objective’ and ‘scientific’ form of knowledge.[175] A ‘value-free’ psychiatric discourse is, therefore, not quite so open to challenge by HAD critics, or even opposing counsel alleging homophobic motivations for the killings.[176] Indeed, the prosecution in Campbell did not even see fit to call its own expert witness to contradict the ‘flashback theory’.[177] In summary, the culturally-inscribed HAD defence has reared its ugly head in the provocation law of yet another jurisdiction, this time New Zealand. There, as in Australia, HAD has the backing of a heterosexist provocation doctrine and a complicit psychiatric profession.[178]
The Tasmanian case of Attorney-General’s Reference (No 1 of 1992): Re R v Roetz[179] is another example of the powerful interplay between law and psychiatry and the unmarked heterosexist regime at work. Roetz involved a question of law concerning s 160 of the Criminal Code 1924 (Tas), namely, whether the loss of power of self-control should follow suddenly the provocative act or insult. Roetz had been convicted of the manslaughter of a man who had touched his thigh. In sharp contrast to Green and Campbell, Roetz had been subject to ‘grave and persistent sexual molestation’ by the deceased for several years.[180] However, on the day that Roetz killed the deceased, he had, together with another youth, visited the deceased’s home to ‘knock [him] out’ and take money.[181] Before they had approached the house, the deceased intercepted them in his car and it was alleged that at some point during the journey the deceased touched Roetz. Thirty minutes ensued before the other youth attacked and rendered the deceased unconscious. Roetz then struck the deceased with a rock and shovel, causing death.
Remarkably, the prosecution conceded that the homosexual advance, the mere touching of the thigh, was sufficient evidence to call for a direction on provocation. It is unclear from the judgment whether the jury treated the advance as sufficient provocation. In any event, psychiatric evidence was adduced of a ‘sexual child abuse accommodation syndrome’.[182] This evidence explains the lapse of time between the deceased’s provocative conduct and the accused’s attenuated response. A feature of the syndrome is the powerlessness to prevent further victimisation. Retaliation becomes possible when the aggressor is in a weaker position vis-a-vis the victim. Thus, in Roetz, the accused’s venting of anger and loss of self-control was made possible by the deceased lying in a helpless state.[183] Accordingly, when a HAD allegation does not suffice, perhaps for want of stronger evidence or the existence of a felonious intent (such as robbery), syndrome evidence is adduced to bolster a weak provocation defence.
Contrast the judicial response to the same child sexual abuse accommodation syndrome in the context of rape cases. The syndrome evidence explains how overwhelming feelings of fear and distress associated with reporting the abuse often prevent child victims of rape and sexual assault from promptly alerting the authorities. As it is not uncommon for victims to complain of assault years after the abuse, without this evidence their credibility is vulnerable to attack from defence counsel, the insinuation being that the complainant is fabricating their claim of rape.[184] Yet Australian courts are reluctant to admit such evidence in rape cases. For example, in Ingles v The Queen,[185] the Tasmanian Court of Criminal Appeal declined to admit evidence of child sexual abuse accommodation syndrome because to do so would merely buttress the complainant’s credibility. Similarly, in the South Australian case, C v The Queen,[186] King CJ stated that he was ‘far from convinced’ that insights from child psychology ‘are necessary in order to enable a jury to reach a just decision or that their value would outweigh the impairment of the trial process which would result from introducing expert opinion’.[187]
The question thus arises: why are courts reluctant to introduce syndrome evidence in child sexual abuse cases while freely admitting similar evidence in HAD cases such as Roetz?[188] In Green, expert evidence was not even led, yet a ‘special sensitivity to sexual interference’ formed the basis of a ‘substantial miscarriage of justice’.[189] Questions are not raised about the fairness of the trial or even the integrity of the trial process when syndrome evidence is adduced in HAD cases. Nor is there the attendant concern that psychiatric evidence considerably bolsters the credibility of a defendant alleging HAD. The preparedness of courts to allow psychiatric or psychological evidence in HAD cases is another means by which an unmarked heterosexist culture asserts its cultural dominance in provocation law.
Finally, some defendants alleging HAD are denied a provocation defence. This factor alone potentially undermines my thesis of a heterosexist culture infusing provocation law. However, irrespective of the repudiation of HAD by some members of the judiciary, their judgments may also be construed as examples of the homosexualisation of provocation law. A useful illustration is the unreported decision R v Craggs,[190] a case in which the appellant falsely ‘conveyed the impression that he was an innocent youth of heterosexual inclinations, who was the unwitting victim of unexpected and unwelcome homosexual advances from a much older man’.[191] While the Court in Craggs flatly rejected the accused’s HAD allegation, the Court could not resist commenting on evidence pointing to the appellant’s ‘homosexual’ tendencies. A Crown witness related how the appellant had shown him two pornographic magazines. The Court considered this encounter to be ‘plainly homosexual in character.’[192]
A further example is another unreported decision, R v Andrew and Kane.[193] In that case, the two accused, Andrew and Kane, acted in concert to avenge the deceased’s previous advances and sexual assaults against the youth Andrew. Sully J disagreed with the jury verdict of voluntary manslaughter for Andrew. One reason leading Sully J to discount provocation was the likelihood of Andrew having initiated at least the first sexual encounter.[194] Sully J observed that at the time of the offence Andrew was ‘unsure’ of his sexual orientation.[195]
To take one more example, in R v Perry and Roberts[196] the two accused men had set out to obtain some drugs from the deceased. Identification of the accused men as ‘practising homosexuals’, who also shared a ‘mutual emotional attachment’, was seen to be a likely explanation for the accuseds’ violent response to the deceased’s sexual advance.[197] Both men were sentenced to relatively lengthy jail terms of 15 years for manslaughter.
In each of these cases an intriguing pattern emerges. When the accused is labelled ‘homosexual’, courts are reluctant to uphold a provocation defence (or, as in Perry and Roberts, a lengthy jail term is assured for the lesser crime of manslaughter). The ‘fixing’[198] of sexual identity and the gatekeeping effect in determining those worthy of a HAD and provocation defence is an extraordinary instance of heterosexuality’s marking of homosexuality. Hence, while it is not every allegation of HAD which grounds a successful provocation defence, this factor, of itself, nonetheless remains vastly inadequate to disprove the heterosexist culture of provocation law. If anything, such cases highlight the prominence of essentialist reasoning in HAD cases and the overwhelming importance which courts attach to binary classifications. As Wayne Morgan concludes, the definitional dependence of heterosexuality on homosexuality explains why the law concerns itself with the question of who is a homosexual.[199] Any blurring of the boundaries is immediately marked ‘homosexual’ and denounced by the unmarked heterosexist legal regime.
As I conclude this article, I ponder whether provocation will always be a heterosexist cultural defence. Certainly, it was heartening to learn that the clemency afforded to John Whiteside and Kristian Peter Dieber for the homicide of Keith Hibbins proved short-lived.[200] Although strictly speaking their case was one of involuntary manslaughter and not manslaughter by way of provocation, the usual cultural assumption about the worth of gay men (and lesbian women) was momentarily abandoned. Invariably, however, I cast my mind back to the horrific violence Donald Gillies and countless others have suffered and am angered and dismayed that juries would mitigate what is otherwise murder merely because men were allegedly ‘provoked’ by unwanted, nonviolent homosexual advances. Even when juries do return a verdict of murder, appellate courts are swift to end these fleeting victories. As I have repeatedly shown throughout this paper, an exculpatory provocation defence — one predicated on the existence of an alleged nonviolent homosexual advance — seems to strike a chord with many appellate court judges. Whether it be a homicidal act in response to a nonviolent homosexual advance, or a HAD allegation coupled with a ‘sexual abuse factor’, a ‘flashback theory’, or even a ‘child sexual abuse accommodation syndrome’, appellate courts seldom condemn the law’s complicity in heterosexism and homophobia. Thus, it can be said that the judicial sanctioning of HAD is borne out of provocation’s enduring status as a dominant, heterosexist cultural defence.
I am aware that my assessment of provocation as a dominant cultural defence is likely to arouse controversy. The proposition that sensitivity to Australia’s ‘cultural’ diversity in the courtroom (inadvertently or otherwise) gives rise to racism and sexism may be difficult for many to accept. Nevertheless, it is incumbent on those in the upper echelons of the legal profession to take stock of how the notion of ‘culture’ is deployed in provocation cases. Law reformers would do well to acquaint themselves with the vast array of minority feminist American literature canvassing questions of culture and the cultural defence. While critique of culture in this country is restricted to the limited view of culture as race or ethnicity, almost insurmountable odds will plague those attempting to expose the cultural inscription of provocation law.
The unmarked status of heterosexuality is surely difficult to displace. This much is clear from the majority judgments in Green and other HAD cases. There does remain a faint glimmer of hope in the NSW Attorney-General’s Working Party’s recommendation to amend that State’s legislation to preclude nonviolent homosexual advances from forming the basis of a provocation defence.[201] Regrettably, however, in view of the ‘sexual abuse factor’ in Green and the ‘flashback theory’ in Campbell, heterosexism and homophobia seem destined to leave their indelible imprint on Australia’s dominant cultural defence: the provocation doctrine.
[*] BA (RMIT), LLB (Hons) (La Trobe). I would like to convey my heartfelt thanks to Adrian Howe for supervising the writing of my Honours thesis, from which this article is drawn. I am also grateful for the insightful comments of friends, colleagues and anonymous referees. Of course, any errors contained in the article are my own.
[1] R v Abebe [1999] SCV 260 (Unreported, Harper J, 12 May 1999) [19].
[2] Carol Smart, ‘Law’s Power, the Sexed Body and Feminist Discourse’ (1990) 17 Journal of Law and Society 194, 201–2.
[3] See Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 73–4 (McHugh J) (‘Masciantonio’); Stanley Yeo, ‘Sex, Ethnicity, Power of Self-Control and Provocation’ [1996] SydLawRw 15; (1996) 18 Sydney Law Review 304.
[4] Simon Bronitt and Kumaralingam Amirthalingam, ‘Cultural Blindness: Criminal Law in Multicultural Australia’ (1996) 21 Alternative Law Journal 58.
[5] As a gay man of Italian extraction, I am loath to advance one cause at the expense of another. While I acknowledge that significant cultural barriers often act to deny people of diverse ethnic backgrounds justice before the law, it is beyond the scope of this piece to address these concerns in an adequate manner. See generally Australian Law Reform Commission (‘ALRC’), Multiculturalism and the Law, Report No 57 (1992).
[6] Margaret Thornton, ‘Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same’ (1998) 36 Osgoode Hall Law Journal 369, 370.
[7] See generally Nancy Wanderer and Catherine Connors, ‘Culture and Crime: Kargar and the Existing Framework for a Cultural Defense’ (1999) 47 Buffalo Law Review 829; Valerie Sacks, ‘An Indefensible Defense: On the Misuse of Culture in Criminal Law’ (1996) 13 Arizona Journal of International and Comparative Law 523; Alice Gallin, ‘Cultural Defense: Undermining the Policies against Domestic Violence’ (1994) 35 Boston College Law Review 723; ‘The Cultural Defense in the Criminal Law’ (1986) 99 Harvard Law Review 1293.
[8] See, eg, Daina Chiu, ‘The Cultural Defense: Beyond Exclusion, Assimilation and Guilty Liberalism’ (1994) 82 California Law Review 1053; Holly Maguigan, ‘Cultural Evidence and Male Violence: Are Feminist and Multicultural Reformers on a Collision Course in Criminal Courts?’ (1995) 70 New York University Law Review 36; Nilda Rimonte, ‘A Question of Culture: Cultural Approval of Violence against Women in the Pacific Asian Community and the Cultural Defense’ (1991) 43 Stanford Law Review 1311; Leti Volpp, ‘(Mis)Identifying Culture: Asian Women and the “Cultural Defense”’ (1994) 17 Harvard Women’s Law Journal 57.
[9] While heterosexism need not be viewed in isolation from the other dominant cultural values informing provocation law, this article does not purport to mount an argument for ‘sexuality as culture’ based on ‘ethnicity as culture’ or vice versa. Indeed, the positionalities of individuals according to their class, race, gender and sexuality mean that the oppression experienced by gay men, women and ethnic minority groups is far from comparable. Kimberle Crenshaw’s term ‘intersectionality’, a construct used in subsequent parts of this article, describes how various aspects of a person’s identity such as gender and race intersect to shape that person’s experience of oppression. The term also refers to the structural, political and representational dimensions of oppression. See generally Kimberle Crenshaw, ‘Mapping the Margins of Intersectionality, Identity, Politics and Violence against Women of Color’ (1991) 43 Stanford Law Review 1241.
[10] Ian Leader-Elliott, ‘Passion and Insurrection in the Law of Sexual Provocation’ in Ngaire Naffine and Rosemary Owens (eds), Sexing the Subject of the Law (1997) 149. Leader-Elliott defines sexual provocation as those instances in which it is claimed that ‘infidelity, desertion or sexual humiliation drove the offender to kill a rival or a sexual partner’: at 151.
[11] Ruth Frankenberg, White Women, Race Matters: The Social Construction of Whiteness (1993) 192. See also Ruth Frankenberg, ‘Growing Up White: Feminism, Racism and the Social Geography of Childhood’ (1993) 45 Feminist Review 51.
[12] (1997) 191 CLR 334 (‘Green’).
[13] NSW Attorney-General’s Department Working Party on the Review of the Homosexual Advance Defence (‘Working Party’), Homosexual Advance Defence: Final Report of the Working Party (1999) [2.2] Lawlink NSW <http://www.agd.nsw.gov.au/clrd1.nsf/pages/had> at 1 April 2002. HPD is analogous to an insanity defence as the defendant is said to ‘temporarily lose the capacity to distinguish right from wrong’: Robert Bagnall, Patrick Gallaghar and Joni Goldstein, ‘Burdens on Gay Litigants and Bias in the Court System: Homosexual Panic, Child Custody, and Anonymous Parties’ (1984) 19 Harvard Civil Rights — Civil Liberties Law Review 497, 499.
[14] See, eg, the following Supreme Court of New South Wales decisions: R v Jacky (Unreported, Campbell J, 10 June 1993); R v McGregor (Unreported, Newman J, 9 October 1993); R v McKinnon (Unreported, Studdert J, 24 November 1993); R v Turner (Unreported, Grove J, 14 July 1994); R v Bonner (Unreported, Dowd J, 19 May 1995).
[15] Helen Brown, ‘Provocation as a Defence to Murder: To Abolish or to Reform?’ (1999) 12 Australian Feminist Law Journal 137, 141.
[16] Adrian Howe, ‘Homosexual Advances in Law: Murderous Excuse, Pluralised Ignorance and the Privilege of Unknowing’ in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (2000) 84, 85. Clearly, some feminists have engaged with Green: see, eg, ibid. It should also be emphasised that not all feminists view provocation as an appropriate defence for battered women, some even preferring that the acts of these women be brought within the rubric of self-defence. For a useful summary of the issues, see Julia Tolmie, ‘Provocation or Self-Defence for Battered Women Who Kill?’ in Stanley Yeo (ed), Partial Excuses to Murder (1991) 61; Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and Its Limitations’ (1992) 16 Criminal Law Journal 369, 377–80; Women Who Kill in Self-Defence Campaign, Submission to the Model Criminal Code Officer’s Committee: Fatal Offences against the Person (1998) National Women’s Justice Coalition <http://www.nwjc.org.au/mccode.htm> at 1 April 2002. The fact does remain, however, that Green has not elicited much response from law academics, including feminists.
That said, unfortunately, the very reform some feminists had successfully lobbied for — the relaxation of the suddenness requirement in the provocation law of NSW — was used with alarming success in Green: see Howe, ‘Homosexual Advances in Law’, at 51.
In 1982, that lobbying resulted in the amendment of the Crimes Act 1900 (NSW), with the result that the suddenness requirement was removed. Section 23 dispensed with the rule that provocation could not be used as a successful defence if the defendant’s loss of self-control was not an immediate response to the deceased’s conduct. There also seems to have been some relaxation of the suddenness requirement at common law following the High Court’s decision in Parker v The Queen [1964] UKPCHCA 1; (1964) 111 CLR 665. Unless otherwise specified, this article focuses on the common law doctrine of provocation.
[17] Graeme Coss, ‘“Revisiting Lethal Violence by Men” — A Reply’ (1996) 20 Criminal Law Journal 116. The cases discussed were R v McCarthy [1954] 2 All ER 262 and R v Cunningham [1959] 1 QB 288. HAD has also emerged in the United States: see Robert Mison, ‘Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation’ (1992) 80 California Law Review 133; Joshua Dressler, ‘When “Heterosexual” Men Kill “Homosexual” Men: Reflections on Provocation Law, Sexual Advances and the “Reasonable Man” Standard’ (1995) 85 Journal of Criminal Law and Criminology 726.
[18] [1958] HCA 38; (1958) 100 CLR 448. Almost 30 years later, the common law doctrine of excessive self-defence was abolished in Australia in Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645 (‘Zecevic’).
[19] See, eg, Steve Tomsen, ‘The Political Contradictions of Policing and Countering Anti-Gay Violence in New South Wales’ (1993) 5 Current Issues in Criminal Justice 209; Dean Kiley, ‘I Panicked and Hit Him with a Brick’ (1994) 1 Law/Text/Culture 81; Steve Tomsen, ‘Hatred, Murder and Male Honour: Gay Homicides and the “Homosexual Panic Defence”’ (1994) 4(2) Criminology Australia 2; Allen George, ‘“Roll a Fag and Go Free”: Competing Discourses of Sexuality and Sexual Identity’ (1995) 1 Journal of Interdisciplinary Gender Studies 49; Peter Johnston, ‘“More than Ordinary Men Gone Wrong”: Can the Law Know the Gay Subject?’ [1996] MelbULawRw 23; (1996) 20 Melbourne University Law Review 1152; Allen George, ‘The Gay (?) Victim on Trial: Discourses of Sexual Division in the Courtroom’ in Gail Mason and Stephen Tomsen (eds), Homophobic Violence (1997) 46; Adrian Howe, ‘More Folk Provoke Their Own Demise (Homophobic Violence and Sexed Excuses — Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)’ [1997] SydLawRw 19; (1997) 19 Sydney Law Review 336; Nathan Hodge, ‘Transgressive Sexualities and the Homosexual Advance’ [1998] AltLawJl 9; (1998) 23 Alternative Law Journal 30; Stephen Tomsen, ‘“He Had to Be a Poofter or Something”: Violence, Male Honour and Heterosexual Panic’ (1998) 3 Journal of Interdisciplinary Gender Studies 44.
[20] Adrian Howe, ‘Green v The Queen: The Provocation Defence: Finally Provoking Its Own Demise?’ [1998] MelbULawRw 19; (1998) 22 Melbourne University Law Review 466; Adrian Howe, ‘Reforming Provocation (More or Less)’ (1999) 12 Australian Feminist Law Journal 127; Howe, ‘Homosexual Advances in Law’, above n 16.
[21] See, eg, NSW Attorney-General’s Department Working Party on the Review of the Homosexual Advance Defence, Review of the Homosexual Advance Defence, Discussion Paper (1996)
GayLawNet <http://www.gaylawnet.com/info/panic.html> at 1 April 2002; Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (‘MCCOC’), Model Criminal Code — Chapter Five: Fatal Offences against the Person, Discussion Paper (1998); New South Wales Law Reform Commission (‘NSWLRC’), Provocation, Diminished Responsibility and Infanticide, Discussion Paper No 31 (1993).
[22] The only exception to date is Tom Molomby, ‘“Revisiting Lethal Violence by Men” — A Reply’ (1998) 22 Criminal Law Journal 116. Molomby, the defendant’s solicitor in Green, asserts that the case did not have anything to do with homophobia: at 116. For materials which universally condemn HAD see generally Tomsen, ‘The Political Contradictions of Policing and Countering Anti-Gay Violence’, above n 19; Kiley, above n 19; Tomsen, ‘Hatred, Murder and Male Honour’, above n 19; George, ‘“Roll a Fag and Go Free”’, above n 19; Johnston, above n 19; George, ‘The Gay (?) Victim on Trial’, above n 19; Howe, ‘More Folk Provoke Their Own Demise’, above n 19; Hodge, above n 19; Tomsen, ‘“He Had to Be a Poofter or Something”’, above n 19; Howe, ‘Green v The Queen’, above n 20; Howe, ‘Reforming Provocation’, above n 20; Howe, ‘Homosexual Advances in Law’, above n 16.
[24] Ibid 85–6.
[25] (Unreported, Supreme Court of Victoria, Tadgell J, 28 May 1992) (‘Murley’).
[26] Johnston, above n 19, 1177.
[27] Ibid 1176.
[28] Ibid 1177–8.
[29] R v McKinnon (Unreported, Supreme Court of NSW, Studdert J, 24 November 1993).
[30] George, ‘“Roll a Fag and Go Free”’, above n 19, 51.
[31] DPP (Vic) v Whiteside and Dieber [2000] VSC 260 (Unreported, Cummins J, 23 June 2000).
[32] Ibid.
[33] See generally Steve Dow, Gay (2001) 16. For details of the successful appeal launched by the Victorian Director of Public Prosecutions, see DPP (Vic) v Whiteside and Dieber [2000] VSCA 142; [2000] 1 VR 331.
[35] (1987) 27 A Crim R 40. At issue in Lovec v The Queen was the determination of the nonparole period, specifically, whether the deaths of the two women were aggravating circumstances.
[36] Ibid 41–2 (O’Loughlin J).
[37] Lovec v The Queen (1987) 27 A Crim R 40, 42, 43 (O’Loughlin J). See also Howe, ‘More Folk Provoke Their Own Demise’, above n 19, 357.
[38] Howe, ‘More Folk Provoke Their Own Demise’, above n 19, 355.
[39] It is unclear whether a mere confession of adultery is enough to ground a successful provocation defence. It depends on one’s particular interpretation of the landmark decision in Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601 (‘Moffa’). See Jenny Morgan’s illuminating discussion on this point: Jenny Morgan, ‘Provocation Law and Facts: Dead Women Tell No Tales, Tales Are Told about Them’ [1997] MelbULawRw 6; (1997) 21 Melbourne University Law Review 237, 246–7.
[40] David Marr, The High Price of Heaven (1999). Marr infers that the result in Green was the product of the majority judges’ Catholic creed; sexual relations between men being ‘a matter of particular moral difficulty for Catholics’: at 62.
[41] Howe, ‘Homosexual Advances in Law’, above n 16. Howe’s argument is based on Eve Kosofsky Sedgwick’s literary analysis of Diderot’s La Religieuse: see Eve Kosofsky Sedgwick, Tendencies (1993).
[42] Green (1997) 191 CLR 334, 382 (Gummow J), 415 (Kirby J).
[43] R v Green (Unreported, Supreme Court of NSW, Abadee J, 7 June 1994).
[44] R v Green (Unreported, Supreme Court of NSW, Court of Criminal Appeal, Priestley JA, Smart and Ireland JJ, 8 November 1995).
[45] Green (1997) 191 CLR 334, 361 (McHugh J).
[46] See Rebecca Bradfield, ‘Criminal Cases in the High Court of Australia: Green v The Queen’ (1998) 22 Criminal Law Journal 296; Howe, ‘Green v The Queen’, above n 20; Bronwyn Statham, ‘The Homosexual Advance Defence: “Yeah, I Killed Him, but He Did Worse to Me”’ (1999) 20 University of Queensland Law Journal 301; Barbara Ann Hocking, ‘Limited (and Gendered?) Concessions to Human Frailty: Frightened Women, Angry Men and the Law of Provocation’ (1999) 6 Psychiatry, Psychology and Law 57.
[47] Howe, ‘Green v The Queen’, above n 20, 484; Bradfield, above n 46, 300.
[48] Green (1997) 191 CLR 334, 346.
[49] Bradfield, above n 46, 300.
[50] Masciantonio [1995] HCA 67; (1995) 183 CLR 58; Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 (‘Stingel’).
[51] Green (1997) 191 CLR 334, 340–3 (Brennan CJ), 356–7 (Toohey J), 369 (McHugh J).
[52] Ibid 342.
[53] Howe, ‘Green v The Queen’, above n 20, 488–9.
[54] Green (1997) 191 CLR 334, 346 (Brennan CJ).
[55] Howe, ‘Green v The Queen’, above n 20, 484.
[57] Ibid 87−107.
[58] Ibid 89.
[59] Howe, ‘Green v The Queen’, above n 20, 488; Howe, ‘Homosexual Advances in Law’, above n 16; Howe, ‘More Folk Provoke Their Own Demise’, above n 19.
[61] Ibid 69–71.
[62] Ibid 70.
[63] Working Party, Final Report, above n 13, [5.37]–[5.40].
[64] Ibid.
[65] Ibid [6.4].
[66] Ibid [6.7].
[67] Ibid [6.11]–[6.13].
[68] Ibid [6.11] (emphasis added).
[69] To date, the NSW legislature has not implemented the Working Party’s recommendations.
[71] Masciantonio [1995] HCA 67; (1995) 183 CLR 58, 68 (Brennan, Deane, Dawson and Gaudron JJ).
[72] R v Green (Unreported, Supreme Court of NSW, Barr and James JJ, Carruthers AJ, 18 May 1999).
[73] [1990] HCA 61; (1990) 171 CLR 312, 324 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[74] Ibid 329.
[75] [1995] HCA 67; (1995) 183 CLR 58, 74 (emphasis added). See also Stanley Yeo, ‘Power of Self-Control in Provocation and Automatism’ [1992] SydLawRw 1; (1992) 14 Sydney Law Review 3.
[76] See, eg, Bronitt and Amirthalingam, above n 4. Cogent arguments exist against admitting cultural evidence to adduce levels of self-control: see Ian Leader-Elliott, ‘Sex, Race and Provocation: In Defence of Stingel’ (1996) 20 Criminal Law Journal 72, 89.
[77] Sheehy, Stubbs and Tolmie, above n 16, 379. See also Chhay v The Queen (1994) 72 A Crim R 1 (‘Chhay’).
[78] Stingel [1990] HCA 61; (1990) 171 CLR 312; Masciantonio [1995] HCA 67; (1995) 183 CLR 58; Moffa [1977] HCA 14; (1977) 138 CLR 601.
[79] Ian Freckelton, ‘Contemporary Comment: When Plight Makes Right — The Forensic Abuse Syndrome’ (1994) 18 Criminal Law Journal 29, 41. The ‘battered woman syndrome’ describes a cycle of violence in which women are recurrently beaten by their spouse or partner. These battered women, instead of ending the relationship, for various reasons, stay with their partner. The inability of these women to leave is often attributed to a state of ‘chronic fear’ or ‘learned helplessness’: at 32–6. Evidence of battered woman syndrome in Australia has been accepted in the context of duress: Runjanjic and Kontinnen v The Queen [1991] SASC 2951; (1991) 56 SASR 114; Webb v The Queen (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, White ACJ, Cox and Mohr JJ, 19 June 1992); self-defence: R v Kontinnen (Unreported, Supreme Court of South Australia, Legoe J, 26 March 1992); R v Hickey (Unreported, Supreme Court of NSW, Slattery AJ, 14 April 1992); and in support of pleas of self-defence and provocation: Chhay (1994) 72 A Crim R 1; Gilbert v The Queen (Unreported, Supreme Court of Western Australia, Pigeon, Roland and Ipp JJ, 27 March 1993); R v Buzzacott (Unreported, Supreme Court of South Australia, Bollen J, 21 July 1993). The battered woman syndrome has also been cited as a mitigating circumstance in sentencing: see, eg, R v Woolsey (Unreported, Supreme Court of NSW, Newman J, 19 August 1993). Battered woman syndrome evidence was also considered in the review of Robyn Kina’s conviction and sentence for the murder of her violent de facto partner: R v Kina (Unreported, Supreme Court of Queensland, Court of Appeal, Fitzgerald P, Davies and McPherson JJA, 29 November 1993). For a comprehensive discussion of these cases, see Julie Stubbs and Julia Tolmie, ‘Battered Woman Syndrome in Australia: A Challenge to the Gender Bias in the Law?’ in Julie Stubbs (ed), Women, Male Violence and the Law (1994) 192, 199–203. For a critique of battered woman syndrome, see Katherine O’Donovan, ‘Law’s Knowledge: The Judge, the Expert, the Battered Woman and Her Syndrome’ (1993) 20 Journal of Law and Society 427; Katrina Budrikis, ‘Note on Hickey: The Problems with a Psychological Approach to Domestic Violence’ [1993] SydLawRw 29; (1993) 15 Sydney Law Review 365. For an account of how battered woman syndrome can obscure the positioning of ethnic minority women pleading self-defence, see Julia Tolmie, ‘Pacific-Asian Immigrant and Refugee Women Who Kill Their Batterers: Telling Stories That Illustrate the Significance of Specificity’ [1997] SydLawRw 25; (1997) 19 Sydney Law Review 472; Julie Stubbs and Julia Tolmie, ‘Race, Gender, and the Battered Woman Syndrome: An Australian Case Study’ (1995) 8 Canadian Journal of Women and the Law 122.
[80] MCCOC, above n 21, 93. See also Stella Tarrant, ‘Something Is Pushing Them to the Side of Their Own Lives: A Feminist Critique of Law and Laws’ (1990) 20 University of Western Australia Law Review 573.
[81] MCCOC, above n 21, 93. The unfortunate paradox for battered women is that self-defence may be even more difficult to establish than provocation. While the High Court decision in Zecevic frames the test for self-defence in terms of whether the defendant believed it was necessary to do what he or she did in self-defence and whether the defendant had a reasonable basis for that belief, informal considerations such as whether the killing occurred in immediate response to the attack and the duty to retreat will often operate to deny battered women any defence of lawful homicide. See, eg, Gail Barnes, ‘Private Violence, Gendered Justice’ (1999) 24 Alternative Law Journal 342, 342–3; Stubbs and Tolmie, ‘Battered Woman Syndrome in Australia’, above n 79, 195.
[82] See Sue Bandalli, ‘Provocation — A Cautionary Note’ (1995) 22 Journal of Law and Society 398.
[83] Ibid 400.
[84] [1992] EWCA Crim 1; [1992] 4 All ER 889. See also ibid 403.
[85] See Bandalli, above n 82, 403.
[86] Ibid 398. Susan Engle Merry makes a similar observation: Susan Engle Merry, ‘Resistance and the Cultural Power of Law’ (1995) 29 Law and Society Review 11, 14.
[87] ALRC, Multiculturalism and the Law, above n 5, 170. The issue was also canvassed in a discussion paper: ALRC, Multiculturalism and the Criminal Law, Discussion Paper No 48 (1991) 20–1.
[88] ALRC, Multiculturalism and the Law, above n 5, 171–2.
[89] Ibid 171. Note, however, the ALRC’s endorsement of a partial cultural defence for members of remote Aboriginal communities who would otherwise be convicted of murder or wilful murder: at 172.
[91] (Unreported, Supreme Court of New York, Pincus J, 2 December 1988) (‘Chen’).
[93] Ibid 1114.
[94] Ibid 1053.
[95] James Sing, ‘Culture as Sameness: Towards a Synthetic View of Provocation and Culture in the Criminal Law’ (1999) 108 Yale Law Journal 1845, 1875.
[96] Ibid 1876. Sing’s argument is based on Jeremy Horder’s historical account of provocation in the United Kingdom, which suggests that the defence has always made ‘allowances for the ways in which reasonable people are influenced and compelled by dominant cultural conceptions of natural honor’: at 1869 (emphasis added). See generally Jeremy Horder, Provocation and Responsibility (1992).
[98] See Adrian Howe, ‘Provoking Comment: The Question of Gender Bias in the Provocation Defence — A Victorian Case Study’ in Norma Grieve and Ailsa Burns (eds), Australian Women: Contemporary Feminist Thought (1993) 225 and the cases cited therein.
[99] [1977] HCA 14; (1977) 138 CLR 601.
[100] Ibid 623.
[101] See Morgan’s discussion of the judgment of Barwick CJ: Morgan, above n 39, 249.
[102] [1977] HCA 14; (1977) 138 CLR 601, 611.
[103] [1964– 65] NSWR 1607.
[104] Moffa [1977] HCA 14; (1977) 138 CLR 601, 617; R v Tsigos [1964– 65] NSWR 1607, 1634.
[105] ‘Culturalisation’ refers to white society’s deployment of culture as a means of presaging racism and sexism: Sherene Razack, ‘What Is to Be Gained by Looking White People in the Eye? Culture, Race, and Gender in Cases of Sexual Violence’ (1994) 19 Signs 894, 897.
[106] Homi Bhabha, ‘A Good Judge of Character: Men, Metaphors, and the Common Culture’ in Toni Morrison (ed), Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas and the Construction of Social Reality (1992) 235.
[107] Razack, above n 105, 902.
[108] Ibid 896.
[109] Volpp, ‘(Mis)Identifying Culture’, above n 8, 62.
[110] Leti Volpp, ‘Talking “Culture”: Gender, Race, Nation, and the Politics of Multiculturalism’ (1996) 96 Columbia Law Review 1573, 1604.
[111] Frankenberg, White Women, Race Matters, above n 11, 192; Frankenberg, ‘Growing Up White’, above n 11, 51.
[112] Frankenberg, White Women, Race Matters, above n 11, 1.
[113] Ibid 197.
[114] Jan Pettman, Living in the Margins (1992) 106.
[115] Frankenberg, White Women, Race Matters, above n 11, 199.
[116] David Halperin, Saint Foucault: Towards a Gay Hagiography (1995) 43.
[117] Ibid 44.
[118] Ibid. For an application of this theoretical argument to HAD, see Hodge, above n 19, 30.
[119] Carol Smart, ‘The Woman of Legal Discourse’ (1992) 1 Social and Legal Studies: An International Journal 29, 33.
[120] [1994] SASC 4580; (1994) 62 SASR 351 (‘Georgatsoulis’).
[121] Ibid 353.
[122] Ibid 354.
[123] Ibid 359.
[124] Transcript of Proceedings, R v Georgatsoulis (Supreme Court of South Australia, Perry J, 2 March 1994) 14–15, cited in ibid 357.
[125] Georgatsoulis [1994] SASC 4580; (1994) 62 SASR 351, 359.
[126] Ibid.
[127] Ibid.
[128] Transcript of Proceedings, R v Georgatsoulis (Supreme Court of South Australia, Perry J, 2 March 1994) 96, cited in ibid 358.
[129] Georgatsoulis [1994] SASC 4580; (1994) 62 SASR 351, 359.
[130] Transcript of Proceedings, R v Georgatsoulis (Supreme Court of South Australia, Perry J, 2 March 1994) 14 (emphasis added), cited in ibid 357.
[131] Diasporic cultures are cultures that are removed from their original homeland. For an elaborate discussion on this point, see Gayatri Spivak, The Post-Colonial Critic: Interviews, Strategies, Dialogues (Sarah Harasym ed, 1990) 64–5.
[132] Volpp, ‘Talking “Culture”’, above n 110, 1576–7.
[133] Chandra Mohanty, ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ in Chandra Mohanty, Ann Russo and Lourdes Torres (eds), Third World Women and the Politics of Feminism (1991) 51, 74.
[134] See, eg, R v Gardner (1989) 42 A Crim R 279; R v Dutton (1979) 21 SASR 356; Parker v The Queen [1964] UKPCHCA 1; (1964) 111 CLR 665.
[135] [1991] NTCCA 9; (1991) 2 NTLR 1 (‘Mungatopi’).
[136] Ibid 6, citing Kearney J in Jabarula v Poore [1989] NTSC 24; (1990) 68 NTR 26, 34. See Stanley Yeo, ‘Case and Comment: Mungatopi’ (1992) 16 Criminal Law Journal 429, 430. Yeo later resiles from this position of support. In a subsequent article, Yeo admits that cases such as Mungatopi ‘are objectionable because they regard Aboriginal people as possessing lesser capacity for self-control than other ethnic groups’: Yeo, ‘Sex, Ethnicity, Power of Self-Control and Provocation’, above n 3, 316. Nevertheless, the legacy of Yeo’s original view remains due to the impact it had on McHugh J in Masciantonio, see above n 75 and accompanying text. In any event, Yeo does continue to see a role for ethnicity in the second limb of a reformulated objective test whereby sex and ethnicity would inform the ordinary person’s ‘response pattern’: see Yeo, ‘Sex, Ethnicity, Power of Self-Control and Provocation’, above n 3, 310–11. It is my submission that the reformulated objective standard remains problematic as it may unwittingly encourage sexist and racist reasoning. An example is Yeo’s discussion of R v Watson [1987] 1 Qd R 440. Although R v Watson did not address the issue of provocation, defence counsel in that case sought to admit evidence that Palm Islanders do not consider the disciplining of their wives by stabbing and cutting them as ‘serious’: Yeo, ‘Case and Comment: Mungatopi’ at 444. Yeo contends that admitting such ‘expert evidence might be useful in informing the court about the practices of these male Islanders’, this being the particular ethnic group’s response pattern: Yeo, ‘Sex, Ethnicity, Power of Self-Control and Provocation’, above n 3, 317, fn 65. Regrettably, this proposal still has the effect of culturalising sexism in minority ethnic communities. What is otherwise inexcusable violence may be interpreted as a particular cultural (or ethnic) ‘response pattern’ potentially deserving of mitigation. Racism would arguably be culturalised through the essentialist reasoning of a dominant white legal system that deems Palm Islander men a monolithic group who all respond in a predetermined and decidedly ‘uncouth’ or ‘uncivilised’ manner when ‘disciplining’ their wives.
[137] Yeo, ‘Case and Comment: Mungatopi’, above n 136, 430.
[138] Mungatopi [1991] NTCCA 9; (1991) 2 NTLR 1, 5.
[139] Ibid 4 (emphasis added).
[140] Richard Delgado, ‘Shadowboxing: An Essay on Power’ (1992) 77 Cornell Law Review 813, 818.
[141] See generally Rimonte, above n 8, 1317.
[142] See generally Volpp, ‘Talking “Culture”’, above n 110, 1589. See also Razack, above n 105, 902.
[143] [1983] VicRp 41; [1983] 1 VR 460.
[144] (1996) 86 A Crim R 552 (‘Khan’).
[145] Ibid 556.
[146] Ibid.
[147] Ibid 557.
[148] Ibid 558.
[149] Razack, above n 105, 896.
[150] Green (1997) 191 CLR 334, 361.
[151] Ibid 346.
[152] Ibid.
[153] Ibid 343 (emphasis added).
[154] Ibid 370.
[155] Ibid.
[156] Wayne Morgan, ‘“Damned in the Eyes of the World”: The Media, Sexed Crime and Tasmania’s Anti-Gay Laws’ in Adrian Howe (ed), Sexed Crime in the News (1998) 87, 88–9. See generally Sheila Duncan, ‘Law’s Sexual Discipline: Visibility, Violence and Consent’ (1995) 22 Journal of Law and Society 326; Howe, ‘Homosexual Advances in Law’, above n 16; Howe, ‘More Folk Provoke Their Own Demise’, above n 19, 333; Howe, ‘Green v The Queen’, above n 20, 466; Smart, ‘The Woman of Legal Discourse’, above n 119.
[157] Adrian Cherney, ‘Understanding and Documenting Anti-Homosexual Sentiment’ (1998) 10 Current Issues in Criminal Justice 125, 127. The term ‘hegemony’, deriving from Antonio Gramsci’s Marxist analysis of class relations, is the ‘dynamic by which one group claims and sustains a leading dominant position in social life’: at 126.
[158] bell hooks, ‘Essentialism and Experience’ (1991) 3 American Literary History 172, 173.
[159] Ibid 175. Among those dominant groups, hooks includes some men, white people and heterosexuals: at 175.
[160] An example is Brennan CJ’s view that the sexual abuse factor ‘tended to make it more likely that the appellant was more severely provoked by the deceased’s unwanted homosexual advances than he would otherwise have been’: Green (1997) 191 CLR 334, 342.
[161] Ibid 358 (emphasis added).
[162] Howe, ‘Homosexual Advances in Law’, above n 16, 92.
[163] Ibid.
[164] [1996] NZCA 525; [1997] 1 NZLR 16 (‘Campbell’).
[165] Ibid 19.
[166] Ibid 27.
[167] Ibid 23.
[168] Ibid.
[169] Ibid 21.
[170] Ibid. Specifically, the Court pointed to Campbell’s ‘deliberate actions’, including smashing an outside light to reduce the risk of detection and locking the house: at 21.
[171] Ibid 22.
[172] Ibid 26–7.
[173] Ibid 23.
[174] Molomby, above n 22, 116. See also Rebecca Bradfield’s conclusion that Green was not a ‘classic’ case of homophobia by reason of the sexual abuse factor: Bradfield, above n 46, 303.
[175] Anne Edwards, Regulation and Repression: The Study of Social Control (1988) 75. For a contrary view of law’s power relative to science, see Carol Smart, Feminism and the Power of Law (1989) 9–10.
[176] Of course, the expert evidence of psychiatrists can often conflict. Certainly, this charge has validity in the context of NSW diminished responsibility cases: see NSWLRC, above n 21, 87. This point would appear to refute the view that psychiatric evidence is difficult to challenge in HAD cases. However, this should not detract from the burgeoning role such evidence appears to be assuming in HAD trials. Nor should the probabilistic nature of psychiatry discount the legitimating effect expert evidence has in the argumentation of a HAD and provocation defence. As an aside, while conflicting psychiatric evidence has posed problems in NSW diminished responsibility cases, a study conducted by Susanne Dell in England revealed that medical experts disagree infrequently, in only 13 per cent of diminished responsibility cases: see Susanne Dell, ‘Diminished Responsibility Reconsidered’ [1982] Criminal Law Review 809, 810.
[177] Campbell [1996] NZCA 525; [1997] 1 NZLR 16, 20.
[178] I should emphasise that my comments regarding the use of psychological evidence in cases such as Green and Campbell are not intended to discredit the veracity of other victims of sexual abuse, who, for various reasons, rely on psychiatric or psychological evidence.
[179] [1993] TASSC 62; (1993) 1 Tas R 349 (‘Roetz’).
[180] Ibid 351 (Cox J).
[181] Ibid.
[182] Ibid 352.
[183] Ibid.
[184] Freckelton, above n 79, 39.
[185] (Unreported, Supreme Court of Tasmania, Court of Criminal Appeal, Green CJ, Crawford and Zeeman JJ, 4 May 1993).
[186] [1993] SASC 4095; (1993) 60 SASR 467.
[187] Ibid 474.
[188] Of course, the rules of evidence stipulate that evidence may not be adduced to support the credit of a witness (or the testimony of a witness) unless that credit is attacked by another party: R v Livingstone [1987] 1 Qd R 38, 41 (Connolly J). Furthermore, the common law has designed specific rules for determining the admissibility of a complainant’s credit evidence. While at common law, evidence of a complaint made by the victim of a sexual offence is admissible in some circumstances (eg to show consistency between an out-of-court statement and in-court testimony), such evidence is inadmissible if tendered as direct evidence of any fact in issue: Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460. Nevertheless, it is interesting to note that in Roetz, expert evidence of the abuse accommodation syndrome appeared to satisfy the common knowledge ‘test’ of admissibility, yet in C v The Queen, the Court expressly rejected the syndrome evidence (to explain the child’s failure to complain of sexual interference) as this would be something within the jury’s common knowledge.
[189] Green (1997) 191 CLR 334, 359 (Toohey J), 359 (McHugh J) (emphasis added).
[190] (Unreported, Supreme Court of Queensland Court of Appeal, McPherson JA, Moynihan and Fryberg JJ, 1 September 1995) (‘Craggs’). Craggs was an appeal against a murder conviction. The two grounds of appeal, ultimately dismissed, were the voluntariness of Cragg’s confession and the sufficiency of evidence supporting an intent to kill or to do grievous bodily harm.
[191] Ibid (McPherson JA and Fryberg J, with whom Moynihan J agreed).
[192] Ibid.
[193] [1999] NSWSC 647 (Unreported, Sully J, 2 July 1999). This case involved principles of sentencing. The difficulty confronting Sully J was the conflicting versions of events presented at the separate trials held for each accused. While Andrew had been convicted of the lesser crime of manslaughter (by way of provocation), considerable doubt was cast on his credibility. Sully J reviewed the case against Andrew (and Kane) for the purpose of sentencing.
[194] Ibid [51].
[195] Ibid [37].
[196] (Unreported, Supreme Court of NSW Court of Criminal Appeal, Street CJ, Yeldham and Lusher JJ, 7 March 1986) (‘Perry and Roberts’). This case was an appeal against a murder conviction, based on the felony murder rule. Ultimately, the Court upheld the appeal on the following grounds: that the judge failed to explain to the jury the necessary conjunction between the violence and the theft of the deceased’s personal property (thereby constituting the crime of robbery) and the correct sequence between the robbery and the murder required to establish felony murder. At trial, the defence had contended that the murder occurred prior to the robbery.
[197] Ibid [8] (Street CJ, with whom Yeldham and Lusher JJ agreed).
[198] Les Moran, ‘Sexual Fix, Sexual Surveillance: Homosexual in Law’ in Simon Shepherd and Mike Wallis (eds), Coming on Strong: Gay Politics and Culture (1989) 180, 191.
[199] Wayne Morgan, ‘Queer Law: Identity, Culture, Diversity, Law’ (1995) 5 Australasian Gay and Lesbian Law Journal 1, 12.
[200] DPP (Vic) v Whiteside and Dieber [2000] VSCA 142; [2000] 1 VR 331.
[201] Working Party, Final Report, above n 13, [6.7].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MelbULawRw/2002/6.html