ROBERT BURTON-BRADLEY

A NSW inquiry into the use of provocation as a defence for murder has heard pleas for the loophole to be closed.

There are provisions under NSW law for a partial defence to murder charges when it can be shown that the defendant lost their self-control because of the actions of their victim.

It is sometimes used as a defence by killers of gay men, who argue they panicked when the victim made a non-violent sexual advance.

This allows the accused to claim they lost control because they were provoked by the behaviour of the person they killed.

If successful in arguing this defence to a murder charge, they can have their conviction reduced to manslaughter.

The defence was used successfully in 2008 by a teenager after he stabbed and killed intellectually handicapped man Gerard Flemming at a gay beat on Sydney’s Northern Beaches.

The teenager told the court he was drinking with Flemming but was not aware it was a beat and acted in self defence after Flemming made a sexual advance.

Gay and Lesbian Rights Lobby co-convenor Justin Koonin told the inquiry last week that the defence was discriminatory and had to be removed from the NSW legal system.

“Our position comes from the belief that a non-violent sexual advance should never, by itself, form the basis for a partial defence against murder – regardless of the sex or gender of the people involved,” Koonin said.

“The question that needs to be addressed is whether a non-violent sexual advance is so grave and abhorrent an offence that the hypothetical ‘ordinary person in the position of the accused’ would have been induced to form an intent to kill or to inflict grievous bodily harm.

“It is difficult to see how that is the case today, if indeed it ever was.”

The inquiry continues.

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