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Jail for flatmate’s gay-rage killing

The Age | June 30, 2011

A Melbourne man who used a platypus statue in a deadly and savage attack on his flatmate has been sentenced to 18 years’ jail.

Aaron James Johnstone, 29, dropped the eight-kilogram statue on the head of Phillip William Higgins, his 46-year-old flatmate, after severely beating him in their shared Seaford home in September 2006.

Click here to hear the judge’s sentencing remarks

Justice Robert Osborn said Johnstone was in an alcohol-fuelled rage after a night of drinking when he set upon his openly-gay friend, who Johnstone told police had made a sexual advance towards him.

The Supreme Court heard Johnstone, who was sexually abused as a child, told police he lost his temper when Mr Higgins suggested they have oral sex and then said: “I was sexually abused too as a child but I learnt to like it”.

Justice Osborn said Johnstone had punched Mr Higgins, then kicked his head “like a football” until he was bleeding profusely and spitting blood.

“You then admit picking up a ceramic statue of a platypus weighing in excess of eight kilograms and dropping it from chest height directly on to Mr Higgins’ head,” Justice Osborn said. “This evidently rendered him unconscious.”

The court heard Johnstone had also used an office chair to assault Mr Higgins, whose body was discovered with 30 injuries, including six broken ribs, a battered face, fractured jaw and a broken tooth.

Another tooth was found inside one of Mr Higgins’ lungs.

Justice Osborn sentenced Johnstone, who had 28 prior convictions, to 18 years in prison with a non-parole period of 14 years for what he described as an act of “absolute brutality” on a defenceless man.

It was the second time Johnstone, who pleaded not guilty to murder, had been jailed for the crime. He had been granted a retrial on appeal but a jury took less than a day last week to again find him guilty of the murder.

Johnstone today received the exact same prison term as his original sentence.

Justice Osborn said Mr Higgins had been universally described as having a “kindly and generous nature”, who had allowed Johnstone to move in with him.

He said Mr Higgins’ relatives, some of whom were in court for the sentencing, had been left ” with a permanent sense of overwhelming hurt and loss” by his bloody and violent death.

“Your attack was a savage betrayal of his trust and generosity,” Justice Osborn said.

He said he was not convinced that Mr Higgins had made the remarks Johnstone attributed to him.

“I do not accept that even if Mr Higgins had made a homosexual advance to you in the terms you now assert, the ordinary person might be so provoked as to totally lose control and do what you did,” he said.

The court heard Johnstone had a troubled childhood and was an alcoholic with anger management problems and who had abused drugs.

Justice Osborn said he did not know if Johnstone had intended to seriously injure rather than kill Mr Higgins and that if he was able to give up alcohol he could rehabilitate.

“Unless you learn to control your drinking, and in turn manage your anger, your future is a very bleak one,” Justice Osborn told Johnstone.

Johnstone stood with his head bowed and eyes down throughout the sentencing. View Article


Gay bashing accused sentenced

SSO – 30 June 2011

gavelA Melbourne man found guilty of bashing his gay flatmate to death has been sentenced to 18 years jail, The Age has reported today.

Aaron James Johnstone, 29, was found guilty of murder for attacking his openly gay flatmate Phillip Higgins, 46, with an eight-kilogram platypus statue.

Johnstone claimed he had “lost his temper” when Higgins had allegedly propositioned him.
The Age report said Johnstone had punched Higgins and kicked his head “like a football” until he bled profusely.

Justice Robert Osborn said the attack was a “savage betrayal of [Higgins’] trust and generosity”.

Johnstone had pleaded not guilty to murdering Higgins, however, a jury took a day to find him guilty in a retrial of the case.

Johnstone had earlier been found guilty and given an 18-year sentence for the crime. View Article


Calls to abolish gay panic defence

Written by Serkan Ozturk | SX News – 20 June 2011

Legal experts and LGBTI activists have this week expressed their concern at laws that continue to exist in NSW and Queensland which allow alleged murderers the option of using a partial defence of ‘non-violent homosexual advance’ as a reason for the death of a victim.

The calls come as a man currently facing a murder trial in Melbourne claimed that he killed his openly-gay housemate following a fit of rage after being propositioned for sex.

Earlier this month in Queensland, a petition sponsored by Brisbane MP Grace Grace was launched to lobby Attorney-General Paul Lucas to make further changes to the use of provocation in that state following the passing of the Criminal Code and Other Legislation Amendment Bill 2010.

Lucas has suggested that the bill already enshrines that “no longer can mere words alone, including gay or straight advances, be sufficient for the defence of provocation, except in the most extreme and exceptional circumstances”.

However, a law expert from the University of Newcastle, Dr Alan Berman, told SX that he believes the legislation has failed to completely eliminate ‘non-violent homosexual advance’ as a defence.

“Most of the common law cases dealing with ‘non-violent homosexual advance’ defence involve more than a mere verbal proposition,” Berman said.

Berman pointed out a recent case where a defendant alleged that the deceased victim had gently touched them on a part of their body which threw them into a fit of rage.

In such a context, the use of ‘non-violent homosexual advance’ operates to partially absolve the accused’s homicidal act, converting what would otherwise be murder into a manslaughter conviction.

In recent years, states and jurisdictions such as Tasmania, Western Australia, ACT and Victoria have repealed the use of such, or any, provocation as a legal defence.

In NSW and Queensland, the use of ‘non-violent homosexual advance’ as it is currently articulated does not constitute a complete defence.

That is, it can be used to reduce a charge of murder to manslaughter, however on sentencing the perpetrator could end up receiving the same punishment.

When asked for comment on the issue as it relates to NSW, a spokesperson for newly appointed Attorney-General Greg Smith told SX that the current laws are working fine.

“The Attorney General advises that he is confident current laws adequately address the concerns you raise,” the spokesperson said.

Senthorun Raj, from the NSW Gay and Lesbian Rights Lobby (GLRL) believes the continuing existence of the defence is problematic and needs to be looked at.

“Laws which characterise homosexuality as a threat in order to legitimate acts of violence, even if partially, are unacceptable,” Raj told SX.

“Homophobia has no place in our legal system.”

View Article


Gay man bashed to death

SX | 23 June 2011

r185440_689938A former Seaford man has been found guilty of murder in Victoria’s Supreme Court today after bashing his gay housemate to death, The Age has reported.

The Age report said 29-year old Aaron James Johnstone had “lost it” and bashed Phillip Higgins with an eight-kilogram platypus statue in 2006, after a drunk and naked Higgins propositioned him.

Johnstone pleaded not guilty to murdering Higgins, however, a jury found him guilty.

The Age reported Johnstone’s barrister said although he did not dispute his client’s actions caused Higgins’ death, he did not intend to kill him.

Johnstone will face a pre-sentence hearing next Tuesday. View Article


‘Gay panic defence’ cited by alleged murderers

SX – October 7, 2009

Two men charged with murder in Queensland have invoked ‘gay panic defence’ in court proceedings, arguing that they are not guilty of murder, as the man they killed had made unwanted homosexual advances.

Richard John Meerdink, 40, and Jason Andrew Pearce, 37, are jointly charged with murdering Wayne Robert Ruks, 45, in the grounds of Maryborough’s St Mary’s Catholic Church last July.

Both have entered pleas of not guilty – with Pearce admitting only to manslaughter – citing a gay advance on the part of Ruks, The Courier-Mail reports. Read more and comment


Spain: Gay Panic Defense Wins Acquittal In Horrific Double Murder

March 4, 2009

Andres Duque is reporting a gruesome story out of Spain where a man was just acquitted of his confessed murder of two gay men because of his claim of “homosexual panic.”

The details of the case are horrific, if familiar. The murderer was picked up by one of the two men at the bar where he worked and came home for a meal with the couple. When sex appeared to be in the picture, he stabbed the two to death. Read more


Spain: Outrage at acquittal of man who stabbed gay couple 57 times and set their bodies on fire

March 2, 2009  Read more



But Your Worship, he made a pass at me

SX • August 6, 2008

The Homosexual Advance Defence, or “the HAD” as it is more commonly known, is a legal defence that surfaced in Australian criminal jurisdictions in the early 1990s. The basic premise is that if a homosexual man makes an unwanted sexual advance towards a straight man, he is “provoking” that man.

So, should a straight man then murder a homosexual man who has made a pass at him, the HAD can be engaged to have the charges reduced. Read more

Beat stabbing ‘wasn’t gay panic’

SSO • January 28, 2009

The manslaughter conviction of a schoolboy for the fatal stabbing of Gerard Fleming wasn’t downgraded because of a homosexual provocation defence, NSW Attorney General John Hatzistergos has said.

Acknowledging community concerns about the three-and-a-half-year non-parole sentence, Hatzistergos said “it is important to note that the Court, including the jury, saw this case as a ‘tragedy arising from a failure to communicate and a misunderstanding’, rather than one involving homophobic motives.” Read more

Read the Supreme Court Decision


Operation Taradale

Finding and Recommendations:

Inquest into the death of John Alan RUSSELL
Inquests into the suspected deaths of Ross Bradley WARREN &
Gilles Jacques MATTAINI

Operation Taradale Findings • March 9, 2005


‘Homosexual Panic’ and the Mercenary Killing


Australia’s Criminal Justice System Fails Lesbians and Gay Men

Murdoch University • July 1996

This paper discusses Australia’s criminal justice system and the way it relates to the ‘sexual orientation’ of a party. Research is presented which seeks to underscore the extent of the difficulties faced by lesbian and gay men within that system. Exam ination is made of the broader social context within which Australia’s criminal justice system operates. Read more


Review of the ‘Homosexual Advance Defence’

Attorney General’s Department New South Wales • August 1996


Male Honour, Provocation and the Homosexual Advance


“Homosexual panic” and the mercenary killing

AIC Research and Public Policy Series (Australia).


The Homosexual Advance Defence and the Law/Body Nexus: Towards a Poetics of Law Reform

For some years now, the familiar story of a (homicidal) heterosexual hero overpowered by a predatory ‘poofter’ has played to critical acclaim in Australian criminal courtrooms.

Judges and juries alike have listened with unquestioning awe to tales of bodily impeachment and male honour, as defence barristers have constructed this primal, almost cinematic, narrative of Australian heterosexual masculinity under attack.

The familiar narrative referred to is the Homosexual Advance Defence (‘the HAD’), and this paper is a contribution towards the growing body of legal theory dedicated to its critique (and eradication). Read more


Provocation And The Homosexual Advance Defence: The Deployment Of Culture As A Defence Strategy

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. Read more