22 March 2017


The Queensland Parliament has belatedly addressed the so-called 'homosexual panic defence', passing the Criminal Law Amendment Bill 2016 (Qld).

The Explanatory Memo for the Bill states
Policy objectives and the reasons for them
The objectives of the Criminal Law Amendment Bill 2016 are to:
  • ensure that a person who commits murder cannot rely on an unwanted sexual advance as a basis for the partial defence of provocation which, if successfully raised, reduces murder to manslaughter; and 
  • make a number of miscellaneous criminal law-related amendments, arising from the lapsed Justice and Other Legislation Amendment Bill 2014 and from stakeholder consultation, to improve the operation and delivery of Queensland's criminal and related laws. 
Exclusion of unwanted sexual advance as basis for defence of killing on provocation
Section 304 (Killing on provocation) of the Criminal Code provides the partial defence of provocation which, if successfully raised, reduces the criminal responsibility of the accused from murder to manslaughter. The offence of murder carries mandatory life imprisonment, whereas the offence of manslaughter carries a maximum penalty of life imprisonment.  
In April 2011, section 304 was amended to address its perceived bias and flaws following recommendations of the Queensland Law Reform Commission (QLRC) contained in its 2008 report, A review of the excuse of accident and the defence of provocation. While not specifically dealing with the issue of an unwanted sexual advance, the 2011 amendment to exclude 'words alone' applies to a sexual proposition, unaccompanied by physical contact. Further, the 2011 amendments reversed the onus of proof to a defendant. However, the partial defence of provocation continued to be criticised on the basis that it could be relied upon by a man who has killed in response to an unwanted homosexual advance from the deceased.  
In November 2011, under the former Labor Government, an expert committee (the Committee) was tasked with reviewing section 304 regarding its application to an unwanted homosexual advance. The Committee was chaired by the Honourable John Jerrard, former judge of the Queensland Court of Appeal (the Chair). The Committee was equally divided about an amendment to section 304 on this matter; however ultimately the Chair recommended an amendment to exclude an unwanted sexual advance from the ambit of the partial defence, other than in circumstances of an exceptional character. The report records the Chair's part reasoning of "the goal of having a Criminal Code which does not condone or encourage violence against the Lesbian, Gay, Bisexual, Trans, Intersex (LGBTI) community" as being persuasive in supporting the amendment.  
The Chair also recommended amending the existing provisos in section 304 of 'circumstances of a most extreme and exceptional character' to omit the requirement that the circumstances be of 'a most extreme' character; to remove potential ambiguity and given that such an amendment would not have the effect of lowering the threshold.  
While the former Labor Government announced its intention to amend section 304 to give effect to the Chair's recommendation, the ensuing change of government in 2012 meant the proposed amendments were not progressed.  
Achievement of policy objectives  
Exclusion of unwanted sexual advance as basis for defence of killing on provocation  
The Bill amends section 304 (Killing on provocation) of the Criminal Code to exclude an unwanted sexual advance, other than in circumstances of an exceptional character, from the ambit of the partial defence.  ... 
Clause 10 - amendment to Criminal Code to exclude an unwanted sexual advance from being able to establish a partial defence of provocation in the case of murder
The proposed amendment to section 304 (Killing on provocation) of the Criminal Code to restrict the scope of the partial defence of provocation from applying, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person has the potential to significantly affect the rights and liberties of individuals. This is particularly so given the defence operates to reduce what would otherwise be murder to manslaughter; and the penalty for murder is mandatory life imprisonment. The proposed amendment reflects changes in community expectations that such conduct should not be able to establish a partial defence of provocation to murder, i.e. where the defendant has killed with murderous intent. However, the proposed amendment also includes the operation of the proviso "other than in circumstances of an exceptional character" to guard against unjust outcomes as it is impossible to predict the factually dynamic circumstances that may arise in homicide cases. 
 The Bill provides for technical or consequential amendments to Queensland criminal law.
Bail Act 1980
  • ‚to encourage police to exercise their discretion with regard to bail where a person cannot be taken promptly before a court; and ï‚· to clarify the process on forfeiture of cash bail to ensure consistency in approach.  
Criminal Code
  • to create an exception to section 89 (Public officers interested in contracts) for public officers who acquire or hold a private interest made on account of their employment, having first disclosed to, and obtained the authorisation of, the chief executive of the relevant department. The amendment will address ambiguity as to whether section 89, in its current form, prevents departments from authorising public service officers to provide services in their private capacity; such authorisation is often necessary in rural and remote areas; and 
  • to increase the penalty for the offence of misconduct with regard to corpses (in section 236(b) Criminal Code) from two years imprisonment to five years imprisonment.  
Criminal Proceeds Confiscations Act 2002
  • to ensure all contraventions of restraining orders and forfeiture orders made under the Criminal Proceeds Confiscations Act 2002 (CPCA) are prohibited and appropriately sanctioned; 
  • to allow voluntary provision of information by financial institutions to the Crime and Corruption Commission with respect to the Serious Drug Offender Confiscation Order Scheme; 
  • to clarify the original intention with respect to section 93ZZB (Making of serious drug offender confiscation order); and 
  • to amend the definition of 'applicant'.    
  • to enable the Director to delegate their functions and powers to an appropriately qualified person.  
Drugs Misuse Act 1986
  • to update the evidentiary provision providing for a drug analyst's certificate, to reflect current scientific and operational practices of analysis and remove any uncertainty about the admissibility of certificates issued under the section.  
Evidence Act 1977
  • to ensure that in proceedings other than committal hearings, unless a court otherwise orders, a party intending to rely on a properly disclosed DNA evidentiary certificate is only required to call the analyst who signed it if another party gives the requisite notice; 
  • ‚· to permit a court to order that the usable soundtrack of a videorecording (pre-recorded evidence) may be played at a proceeding in certain circumstances; 
  • to exclude the public from a courtroom while the pre-recorded evidence of an affected child witness or special witness is being played; 
  • · to allow for the destruction of certain recordings held by courts in accordance with relevant practice directions; and 
  • to make technical amendments to provisions relating to the pre-recording of evidence to reflect contemporary court practices.  
Jury Act 1995
  • to modernise a court's ability to use technology in jury selection processes.  
Justices Act 1886
  • to insert an authority to allow a Magistrate to order the joinder of trials; 
  • ‚·to allow for admissions of fact in summary trials for simple offences or breaches of duty; 
  • to allow for registry committals for legally represented defendants who are remanded in custody; and 
  • to enable a defendant to enter a plea in bulk in a Magistrates Court (also involves amendment to the Criminal Code).  
Penalties and Sentences Act 1992
  • to add the offence in section 236(b) (Misconduct with regard to corpses) of the Criminal Code to the serious violent offences schedule; 
  • to allow the Police Commissioner to issue a pre-sentence custody certificate in certain circumstances; and 
  • to provide a mechanism to return offenders sentenced to a recognisance order who fail to properly enter into the recognisance back to the court, and allow for their re- sentencing in the Court's discretion.  
Recording of Evidence Act 1962
  • to permit the destruction of recordings of Magistrates Court proceedings that are authorised by the archivist.