'Lindsay v The Queen': Homicide and the ordinary person at the juncture of race and sexuality

Abstract

Recently, in 'Lindsay v The Queen', the High Court reaffirmed a place in Australian law for the 'homosexual advance defence'. The case involved the killing of a white man by an Aboriginal man for offering to pay for sex, exposing a number of problems with provocation and the ordinary person test at the intersection of race and sexuality. This article first unpacks the Court's reasoning to reveal a hidden assumption that the ordinary person is from the outset white and violently homophobic. The article then sketches a history of these incidents of ordinariness - tracing normalised whiteness and homophobia to the colonial era - in order to address the future of the ordinary person and the options for its reform. Unravelling conflicting Indigenous and queer law reform agendas, the article ultimately concludes that provocation in South Australia should be abolished or reformed to exclude the homosexual advance defence. However, because racism and homophobia can manifest in murder trials despite legal change, a broader cultural shift must accompany the reform of provocation. The lessons of history from the frontier can help to show other ways of being ordinary, allowing a pathway for ordinariness itself to be coloured and queered.