The end of
'gay panic'

When two men beat another to death outside Father Paul Kelly's church, a jury found that it was not a murder. The killers claimed they were responding to a homosexual advance – a defence called 'gay panic'. With the victim's mother, the outraged priest joined a battle to close this loophole in the law.

Words by Frank Robson
Pictures by Paul Harris
13 June 2017
Reading time: 16 minutes

THE KILLINGS, LIKE the legal outcomes, were eerily similar. Both crimes occurred in 2008, only a month apart and 50km from one another, in South East Queensland. Both involved sustained and brutal bashings of solitary males who offered no resistance and were callously abandoned to die alone of their injuries.

Both deaths led to murder charges against men who admitted responsibility for the killings, yet used the so-called “homosexual advance” or “gay panic” defence to escape the usual consequences of committing murder.

Instead, both cases ended with juries finding the killers guilty of the lesser crime of manslaughter, leading to the extraordinary circumstance where all of the four men charged over the two violent deaths have already completed their sentences and been released from prison.

Even now, as he discusses these outcomes, Catholic priest Father Paul Kelly’s anger still charges the air around him like a sudden storm. It was in the grounds of Kelly’s then church – St Mary’s in the Fraser Coast town of Maryborough – that the first of the killings occurred on the night of July 3, 2008. Kelly was the first to view church security camera footage of the six-minute bashing of Wayne Warren Ruks (45), by the two assailants – Richard John Meerdink (then 39) and Jason Andrew Pearce (then 36).

Strangers until that night, the victim and his killers were all drunk.

“Meerdink and Pearce were violent and aggressive, full of piss and anger,” the chubby-faced priest tells me in the presbytery of his current church on the Gold Coast. “Wayne Ruks annoyed them somehow, so they bashed him… kicked his liver in half… and left him to die.”

In a watch house cell after his arrest, Pearce told an undercover cop he’d been sexually abused by a school cleaner as a child. In formal police interviews, he claimed Ruks followed him and Meerdink into the church grounds asking for marijuana, then grabbed his penis, causing him to “snap” and attack the disability pensioner.

“I thought, ‘Oh, okay, no wonder you bashed the shit out of him!’”

When the pair came to trial in 2009, Justice Peter Applegarth rejected Pearce’s claim of being sexually touched, saying there was no evidence to support it. The priest didn’t buy it either.

“I watched the video from end to end and that just didn’t happen,” Kelly says. “… Not that it should matter, but there was no evidence presented anywhere to show Wayne Ruks was gay… I thought what [Pearce and Meerdink] did to him was inexcusable, and that they needed something to get them off the hook a little easier.

“When I heard what they came up with – ‘Well, he came on to us!‘” he adds, sardonically, “I thought, ‘Oh, okay, no wonder you bashed the shit out of him!’”

Kelly shifts focus to the second 2008 killing, just a month after Ruks’ death, when an itinerant hitchhiker was beaten unconscious then dumped in a ditch in the Bauple State Forest, just south of Maryborough. The partly mummified body of Stephen John Ward, 62, was discovered a month later. In 2011, a Supreme Court trial heard that two men – John Patrick Peterson and Seamus Matthew Smith – had offered Ward a lift, then taken him to Smith’s Glenwood home where they drank alcohol, smoked marijuana and shared a roast dinner before setting off to return Ward to the Bruce Highway.

En route, Ward allegedly “touched” Peterson “in a homosexual way” – whereupon Peterson, who claimed to have been a victim of homosexual rape as a teenager, admitted having “just snapped and started hitting him, quite a few times”. The two friends dumped the unconscious hitchhiker beside the road and drove off, but soon returned and put Ward – “covered in blood” and “moaning and gurgling” – in the back of their ute, then drove to the nearby forest and dumped him in the ditch where his body was later found.

“Another case of ‘He came onto me’! What are the chances of two such cases happening within such a short period?”

After hearing all this, the jury took just three hours to find Peterson not guilty of murder, but guilty of manslaughter, and Smith not guilty of accessory to murder, but guilty of accessory to manslaughter.

“Lo and behold,” Kelly concludes heatedly from his armchair, “Another case of ‘He came onto me’! What are the chances of two such cases happening within such a short period? After that… and the ordeal Wayne Ruks’ mother had been put through, I just couldn’t stand it any more. I thought, ‘This is beyond the pale! Something has to be done…’”

So began the determined priest’s starring role in the long campaign to rid the Sunshine State of the “disgusting” legal loophole known as gay panic defence, admissible under section 304 of the Queensland Criminal Code: Killing on Provocation.

As a subsection of 304 torturously explains: “When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.”

On March 21 this year, the Queensland Parliament finally passed a bill to amend the legislation, removing unwanted sexual advances as a partial defence of provocation for murder. After a decade of baffling resistance from both major political parties, the main impetus for the breakthrough came from a petition by Kelly on the social justice website which drew close to 300,000 signatures.

“I am so enormously grateful,” Kelly, 48, said after the hard-fought victory. “The [amended law] unambiguously rejects any implication that sexuality is an excuse for intolerance, violence, and bigotry.”

Surprisingly, given its reputation for being socially progressive, South Australia is now the last bastion of the gay panic defence in the country.

“I wanted to know what happened.”

Joyce Kujala's son, Wayne Ruks, was killed in 2008.

THE CONSEQUENCES OF section 304 (and similar laws once in place across Australia) are still affecting lives in scarcely imaginable ways. In her neat brick home just north of Brisbane, Wayne Ruks’ mother tells of her fear when confronted by the steel-toed boots a tradesman left on her doorstep during a recent house call.

“They looked exactly like the huge boots worn by one of the men who kicked my son to death in that churchyard,” Joyce Kujala says. “They were like weapons… nobody could have survived the kicks from those boots.”

At 86, Kujala is a tall, graceful woman whose striking looks once drew offers of a modelling career. Instead, the long-time Christian became a stenographer, later raising two children alone after her marriage ended when Ruks was nine. She says her son – who attended her church until the age of 14 – was a kind, decent man who’d gotten in with the “wrong crowd” in early adulthood, using amphetamines and marijuana and drinking excessively.

“Wayne starts to walk backwards, and they’re advancing, then – the biggest mistake my son made – he started to run.”

But in recent years he’d quit amphetamines, cut back on smoking dope, and was trying to turn his life around.

“Not long before he died, Wayne made a statement to me that he wanted to go back to the church,” Kujala tells me, surrounded in her living room by paperwork pertaining to the trial of her son’s killers.

Only days after her son’s death, Kujala went to Maryborough and conducted her own investigation of the tragedy. “I wanted to know what happened,” she explains calmly. She returned there in 2009 and spent each day of Pearce and Meerdink’s two-week trial in court, sometimes making shorthand notes of evidence. She also watched the church’s security footage of the fatal assault on her son.

Her interpretation of what happened that night is that Ruks first encountered the defendants outside a hotel where he was staying. Then – soon afterwards – he caught up with them on a public walkway through the nearby church grounds. Kujala doesn’t believe he was seeking marijuana, saying a friend at his hotel told her Ruks was bound for a supermarket often accessed via the walkway. Her son (whose blood alcohol reading was 0.338) was visibly drunk – “Wayne could be a bit offensive when intoxicated,” she acknowledges.

After a few minutes standing talking with the two other men near a park bench, Ruks left and walked quickly back towards his hotel. Behind him, Pearce could be seen apparently restraining Meerdink from giving chase.

A short time later, Ruks returned along the walkway; he appeared startled to find the defendants still within the church grounds. “You see them telling him off aggressively,” says Kujala. “Wayne starts to walk backwards, and they’re advancing… then – the biggest mistake my son made – he started to run. He’s tackled by Pearce, they fall to the ground near the corner of the church, and that’s when the attack started.”

“I got a response back saying there was nothing to indicate homosexual activity.”

At one stage, she says, Pearce – “in his horrible boots” – could be seen holding on to an upright supporting an awning “as he was kicking, so he could put more force into it and not fall over”.

As harrowing as such details are, it was the claim of her son’s homosexual advance that Kujala seems to have found most distressing, at one stage pleading with authorities to have the case “reopened” over the unsupported defence allegation. She says Ruks had been in a 10-year heterosexual relationship until a year before his death, and that, like her, he regarded homosexuality as “unnatural and dirty”.

Kujala even asked the doctor conducting her son’s autopsy to check for any “signs” of homosexuality. “I got a response back saying there was nothing to indicate homosexual activity,” she tells me. “But, of course, that would only have shown if Wayne was the ‘female’ homosexual.” (In a 2012 article for the QUT Law & Justice Journal, legal scholar Kent Blore – then a volunteer at the LGBTI legal service in Brisbane – suggested Kujala’s comments about Ruks not being gay “appear to accept – if unconsciously – the implicit logic that were her son in fact gay, his murder would have been in some way more forgivable”.)

Kujala firmly rejects such speculation. “I’d already said [in a witness impact statement] it didn’t matter to me whether or not a person was gay,” she says. “… I’m not prejudiced in that way, but I do want the public to know that what happened to Wayne, being a non-gay, could happen to anybody – just by somebody claiming they were gay.”

“He’d say, ‘Yeah, but don’t [homosexuals] deserve to die?’ And I’d say, ‘Nobody deserves to die.’”

After his church security camera captured a man being beaten to death, Catholic priest Father Paul Kelly decided "something has to be done".

PAUL KELLY WAS driving back from Brisbane on the morning Maryborough police rang to report that Ruks’ battered body had been found in his churchyard. Home within an hour, he watched the security footage alone in his presbytery while waiting for detectives to collect it. When it reached the point where Ruks, returning along the walkway, was about to encounter Pearce and Meerdink for the second time, the priest couldn’t contain himself.

“I was saying, ‘Oh no, no – what are you doing? Go back, go back!’” he recalls. “It was at that point, as we know now, that the poor bloke could have just gone home and gone to bed….”

Born in Townsville, Kelly enjoyed going to church with his Catholic parents and wanted to be a priest for as long as he can remember: “I loved the Gospels – Jesus saying, ‘Come, follow me, live this way’, and I thought, ‘I wanna do that!’” First, though, he gained a double degree in economics and law at the University of Queensland, then entered Brisbane’s Banyo seminary and was ordained in 1997. Kelly worked in several regional centres before becoming parish priest at Maryborough in 2005.

Kelly thought they would “… say it was just some old archaic thing that they’d get off the books immediately”.

Late in 2011, after the second fatal bashing in the area in 2008 had produced yet another manslaughter outcome, Kelly went public with his anger, attacking the gay panic defence in the Fraser Coast Chronicle. He expressed sympathy for Joyce Kujala’s need to “defend her son’s sexuality”, but argued that “it should not matter whether Mr Ruks made a homosexual advance that night or not – the gay panic defence simply should not exist.” (“These reasoned arguments against homophobia and discrimination sounded novel from the mouth of a Catholic clergyman,” noted Kent Blore in his piece for the QUT Law & Justice Journal.)

Did Kelly’s increasingly fierce campaign against section 403 draw any opposition from within the church?

“Not from the church,” he says. “But there was a very strange man who kept emailing me things like, ‘What’s all this about?’ And I’d [reply] that it was about the Gospel. And he’d say, ‘Yeah, but don’t [homosexuals] deserve to die?’ And I’d say, ‘Nobody deserves to die.’ Then he’d go on about ‘abominations’ and so on.”

Kelly says these exchanges suggested to him “that there was a real power underneath [section 403] that some could tap into… and for a juror [particularly], it could be a very insidious and toxic thing.”

When he began canvassing State politicians to get the law changed, Kelly thought they would “… say it was just some old archaic thing that they’d get off the books immediately”. But to his consternation, even those within Anna Bligh’s Labor government who professed to agree with the need for change “kept throwing up incomprehensible reasons” why they couldn’t actually do anything.

By then, Dr Alan Berman – a law lecturer at the University of Newcastle – had already started a petition against section 403 on the Queensland Government website. Kelly says he approached Berman (himself a victim of homophobic violence when “coming out” in Sydney in 1992), for advice.

“I told him I couldn’t make head nor tail of [the opposition to amending section 403], and he said that was because it was basically a load of crap,” says Kelly. “Berman suggested I start my own petition through, so I did. And in a very short time it just took off.”

By February 2012, Kelly’s petition had exceeded 25,000 signatures; British comedian Stephen Fry had signalled his support to his 3.7 million Twitter followers, drawing national and international media interest, and the Bligh government was on board with a promise to make unspecified “changes” to the gay panic defence. But two months later it lost the State election in a landslide to the LNP. The new premier, Campbell Newman, quickly made it clear nothing would be happening to section 403 under his watch.

“He said, ‘Yeah, but [homosexuals] are using this issue.’ And I said, ‘Sure, but wouldn’t you if you were being bashed up and killed?’”

Despite the new government’s hostility to perceived gay causes, Kelly kept fighting. At a meeting with Newman’s abrasive young attorney-general Jarrod Bleijie, which he likens to a “point-scoring debate with a petulant school child”, Kelly recalls telling Bleijie he shouldn’t worry about being seen to support gay causes.

“I said, ‘After all, I am a Catholic priest. And the Catholic church isn’t exactly promoting gay rights, if you haven’t noticed.’ And he said, ‘Yeah, but they [homosexuals] are using this issue.’ And I said, ‘Sure, but wouldn’t you if you were being bashed up and killed?’”

By the time the Newman regime was ignominiously dumped after one term, Kelly’s petition had exceeded 200,000 signatures. Yet it was another two years before Anastasia Palaszczuk’s Labor Government (supported, in the end, by the LNP) put a stop to the loophole that effectively allowed “poofter bashers” to get away with murder.

It seems odd that Alan Berman’s role as the initiator of the hugely successful campaign barely got a mention in the mainstream media – a fact Kelly admits “feeling bad” about. Yet Berman, now an associate professor at Charles Darwin University in Darwin, tells me it was he who nominated Kelly as the “perfect public face” for the campaign when he first discussed starting the petition with organisers at the social justice website.

“That was the strategy myself and Nathan Elvery [deputy campaigns director at] employed,” Berman says. “Father Kelly was great because he’d been deeply involved and had a law background… I was in contact with him continuously [throughout the campaign].”

An American-born teacher and researcher whose fields include sexuality and the law, Berman, 58, had earlier received a grant from the Bligh government to study legal responses to homophobic and transphobic abuse in Queensland. His findings were published in a book whose main recommendation was the abolition of the non-violent homosexual advance from the state’s criminal code.

“What happened to Wayne could happen to anybody – just by somebody claiming they were gay.”

GAY PANIC, AS American lawyers dubbed it, is part of a raft of archaic “provocation” defences used across the world in an effort to lessen the consequences of murder. “[Its] success… depends upon juries finding that a reasonable person would react to a gay proposition with excessive violence…“ writes legal scholar Kent Blore. “Implicitly, juries must consider that homophobia is reasonable if the defence tactic is to work.”

Variations of the gay panic provision have now been reformed or dumped entirely by all but one of Australia’s states and territories, beginning with Tasmania in 2003. The holdout state is South Australia, where Greens MLC Tammy Franks has been fighting for the abolition of the defence tactic for more than five years.

Yet despite her introduction to state parliament of two private members’ bills seeking to have the law changed, and widespread public lobbying against it, the provision remains on the books. “When I introduced my first bill in 2012, [Labor Premier] Jay Weatherill said the gay panic defence wasn’t relevant because it ‘would never be used’,” says an exasperated Franks. “Then, of course, it was used… and now they’re saying they can’t change the law until the case in which it was used is resolved!”

The court heard that Lindsay “lost control” and beat Negre before putting on gloves and stabbing him with a knife.

The marathon case in question involves Michael Joseph Lindsay, sentenced to life in jail for murdering another man and dumping his body in a wheelie bin at Hallet Cove in Adelaide‘s south in 2011. At his first trial, defence lawyers claimed the victim – Andrew Negre, 37 – provoked Lindsay by making a joke about paying him for sex. The court heard that Lindsay (now 33) “lost control” and beat Negre before putting on gloves and stabbing him with a knife.

Found guilty of murder, Lindsay was granted a retrial on the basis of SA’s gay panic provision. At his second trial in 2016, Lindsay was again found guilty of murder and received the same sentence. Lindsay then lodged an appeal against his latest conviction, which was granted on the basis that the judge at his second trial – Justice Anne Bampton – had misdirected jurors by showing a “clear bias” against the validity of the gay panic defence.

Tammy Franks suggests her state’s reputation for taking an enlightened approach to social justice issues has become a myth. “We rest on our laurels far too much… Yes, we were the first to decriminalise homosexual acts [in 1975], but we’re going to be the last state to get rid of gay panic.”