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Editorial: A month for each choking minute

Wed 13 Oct 2004 In: Features

Nine years – that's what the life of David McNee, a gay man, was worth. His killer, Phillip Edwards, was convicted of manslaughter and sentenced mid-September. Of course, the way our country's parole laws work, he could be out in four and a half. Four and a half years. Let's reflect on that a minute. Edwards admitted to losing count of how many times he punched McNee in the face during his frenzied attack. It could have been anywhere between 30 and 50 blows. We know he sprayed the room with blood. That's roughly one month in prison for each blood-spraying blow. Oh, and let's not forget the fact that McNee was left dying for up to an hour after the attack, when Edwards stole his car and went out joyriding and making up rap songs about his exploits. That's one month in prison for every minute that McNee spent choking to death on his own blood and vomit. Chalk it up. Then there's the grief and loss experienced by his family. There's no way you can ever quantify that, but our country's legal system has at least managed to decide how much McNee's life was worth. And as the evidence against Edwards claim of “homosexual panic” – a reprehensible defence in any situation – mounts, so is the feeling that gay men's lives are worth less in the eyes of the law. Can this get any more outrageous? Well, try this on for size – no-one…that is, NO-ONE…in authority will provide, or Queer Nation either, with any meaningful answer as to who is responsible, and what is going to be done to ensure this will never happen again. hoped to have some answers published soon after Edwards' sentencing. We have encountered, over the last few months, an empty train of buck-passing and unsatisfactory answers from all levels of government on legal anomalies in the McNee case, as well as questions on the homosexual panic defence. We wanted to know why, when the Sentencing Act 2002 recognises the killing of someone specifically because of their sexual orientation as an aggravating factor, and requires greater punishment because of it, how Edwards was able to openly admit to killing McNee because of his sexuality and get a significantly lesser punishment? We wanted to know why, when it is a judge's job to advise juries on points of law, that the term “hate crime” never even passed the lips of Justice Marion Frater? In fact, the exact opposite occurred – she bought into the provocation argument, taking the word of a convicted criminal over a man no longer alive to provide his side of the story, and instructed the jury that she believed there were grounds for provocation, and therefore the delivering of a manslaughter verdict over murder. We wanted to know how many times, since the passing of the Sentencing Act, that hate crime provisions regarding sexual orientation had actually been used, considering the case of Colin Hart, killed by his nephew for reasons closely mirroring Edwards; a case which slipped in and out of the papers within weeks of the McNee verdict almost unnoticed. How many more manslaughter verdicts had we been missing? There've certainly been enough men getting off scot-free on the back of homosexual panic in New Zealand for the last sixty years. Has anything changed? We started with the office of the Attorney General, who would not comment, referring us onto the Crown Law office. Several weeks of ignored correspondence finally netted us the following answers from Jan Fulstow: “As far as the David McNee case is concerned I do not know what was or was not put to the jury and suggest that you speak to the Crown Prosecutor. The Crown Solicitor responsible for prosecutions in Auckland is Simon Moore from Meredith Connell. The Crown will put before the Court all relevant evidence that can be proven. “In regard to your question about judges advising juries on points of law. I am sorry but we cannot tell the judiciary what they should or should not do or say in a trial. It is up to the judge to instruct the jury according to the circumstances of the case before them.” And finally, “I am not aware of any cases in which sexual orientation has been argued as an aggravating factor in a crime by a Crown lawyer.” What a surprise. We decided to follow up Simon Moore with our questions, and again hit a brick wall. Moore apologized and said he couldn't answer the questions as he was about to go overseas for an indefinite period, and referred us to his replacement, Mike Ruffin. However, we were told, Ruffin was about to start a long and complex trial and “may take some time to respond…I am sure he will get back to you.” We're still waiting. Justice Minister Phil Goff seemed like the logical next step. Goff is probably one of the most inaccessible ministers in the current administration. Getting comment directly from him is so difficult Helen Clark should perhaps consider giving him a dentistry portfolio in addition to his current duties. We spoke with James Funnell, a spokesman for the Minister. He told us that provocation – any sort of provocation – is only ever a partial defence. The provisions in the Sentencing Act referring to hate crimes against homosexuals only apply in murder verdicts; that is to say, if you're not convicted of murder, it's impossible to be convicted of a hate crime. However, a murder motivated by homohatred is an aggravating factor, and the onus is on the Crown to prove this has happened. I pointed out to Funnell that the Crown had this handed to them on a plate – Edwards' immense fear-based hang-ups surrounding homosexuality were a major part of the trial. Edwards' lawyer said at one point that he was too ashamed even to come out of his cell because he was so humiliated by the sexual aspects of the case. Funnell can see the irony. “If he was found guilty of murder, then the very same issue that he put up in his defence would have become an aggravating factor.” Then why wasn't he found guilty? The bottom line is, the jury – directed by the judge – bought into the homosexual panic defence. Logic and humanity would clearly suggest that it's high time this form of defence was consigned to the dustbin, but Funnell thinks it would mean outlawing provocation as a defence in its entirety. “The general acceptance is that if you're going to allow provocation to be used as a defence, you can't have circumstances where provocation is allowed and circumstances where it isn't. As difficult as it is for you to accept it, there are people out there who genuinely have a legitimately panicked reaction when they come into contact with a homosexual,” he says. Perhaps. I would say most don't respond in a dehumanizing psychotic frenzy, stopping just short of dismemberment, though. One thing Funnell did tell us was just what Edwards could have been up for had a murder verdict been delivered, and that's – potentially - life imprisonment. “The media have got a habit of making it sound like if you murder someone you get 17 years jail. That's not it at all, you have to serve 17 years before being eligible for parole. The reality is that the way the New Zealand justice system works is, we tend to give primacy to eventual rehabilitation, that's why there is no life sentence without parole.” The provision in the Sentencing Act which refers to aggravating factors makes interesting reading. The first part of it reads: “In sentencing or otherwise dealing with an offender, the court must take into account the following aggravating factors to the extent that they are applicable in the case…” In sentencing or otherwise dealing with an offender. It seems pretty clear to the naked eye that the law is not merely talking about sentencing, but the case as a whole. So what is going on? The other issue we wanted cleared up was one of proportionality. Usually, when provocation of any kind is put forth as defence in a murder trial, the jury must compare the reaction of the offender in proportion to what they were reacting against. A woman kills a man when he's in the process of trying to rape her in an empty alley, murder? Most likely not. A man kills another man during the process of a paid-for sexual encounter, steals his possessions, leaves and brags about it all round town, murder? What do you think? As we've discussed, the defence of homosexual panic as a provocation has been used many times before, and in New Zealand case law we actually have a precedent whereby proportionality cannot be taken into account when it comes to killing following a homosexual advance. In 1994, Jerome Campbell killed Ronald Anderson, a friend of his parents, at Anderson's home. Campbell's defence was one of homosexual panic – Anderson put his hand on Campbell's knee. Campbell's response was to hit Anderson twice across the face and head with a poker, and then repeatedly punch him, picking up a nearby axe and finishing the job, fracturing and pushing in his victim's skull. On this occasion, the jury didn't buy it, and delivered a murder verdict. That all changed on appeal however in 1996, where the case was declared a mistrial. The reason? "…the Judge's misdirection about proportionality was likely to have misled the jury into believing that proportionality was crucial to the provocation defence". Campbell was then re-tried. No instruction about proportionality was made, he was found guilty of manslaughter and given a five-year sentence. Goff's office also claimed that provocation was only admissible as a defence in murder trials – another misnomer. Jim Curtis was attacked and left brain-damaged but alive by Tai Tahi Marsters in 1995, a man he'd picked up on a beach and taken home. Marsters claimed homosexual panic, was found not guilty by the jury, and set free. Again, we wanted answers on these anomalies. We've been told by spokespeople for Phil Goff that our questions have been referred to the Ministry of Justice, and we'll receive an answer “in due course”. When asking for a more definite timeframe, we were not given one. “The Ministry will do its best,” was the response. One MP doing his best to get answers on the McNee case anomalies is NZ First leader Winston Peters. Not known as one of Parliament's most gay-friendly MPs, Peters nonetheless has asked in Parliament whether a different standard of law is being applied for homosexuals. Peters feels the responsibility lies with the Minister of Police and the Attorney General. Unlike Goff's office, who found it difficult to acknowledge the mere concept of homosexual panic, Peters knows the McNee case is not isolated. “Take the case of an innocent advance by a homosexual; the defence of homophobic panic is in my view an extremely rare defence, and will only be believed in extremely and utterly rare circumstances. It's almost inconceivable that it could stand up. But here it is in case after case standing up.” The McNee case, he says, reeks of injustice, double standards and unfairness. “In that circumstance, one's political responsibility is pretty clear. I mean, I've never gone out and been anti or pro anybody in particular, other than to say I think that if you've got a society in which the rules are the same for everybody, then whatever people's different and varying circumstances are, they'll get the same treatment basically.” An interesting statement in light of Peters' voting record on the Civil Union and Relationships Bills, but nonetheless he says he won't back down until all of the facts on the McNee case – many of which he feels are being held back – are out, and he gets a response. As for NZ First taking a stance on the homosexual panic defence, he's reserving public statements on it until it's discussed at caucus, but says the party will most likely be advocating its abolition in cases where a non-violent homosexual advance has been made. Calls made to the office of National leader Don Brash were not returned, but ACT leader Rodney Hide says he doesn't believe homosexual panic should be accepted as a defence, as it wouldn't work for heterosexual panic. He has written to the Justice Ministry with the following question, and is currently awaiting a response: “Does the government accept that "homophobic panic" should be considered a mitigating factor to a violent crime; if so, why; if not, why not and what is being done about it?” We will wait with interest to see what the answer is. In the era of what is perhaps the most gay-friendly administration this country has ever seen, the continued acceptance of the homosexual panic defence in court is the Labour Government's dirty little secret in the area of equality under the law. Chris Banks - 13th October 2004    

Credit: Chris Banks

First published: Wednesday, 13th October 2004 - 12:00pm

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