A North Queensland man has failed in his second bid to overturn a murder conviction for the death of a housemate based on directions given by the trial judge regarding the defence of provocation to a jury.
The Court of Appeal (COA) in Brisbane today dismissed Kyle Robert Thompson’s second attempt to set aside his murder conviction for killing David Knyvett, 59, in his Belgian Gardens home in Townsville on 15 November 2015.
Thompson was sentenced to life imprisonment in April last year after a Townsville Supreme Court jury took five hours to find Thompson, 34, guilty of Mr Knyvett’s murder.
He had pleaded guilty to the unlawful killing of Mr Knvyett at the commencement of his trial, but the prosecution failed to accept the plea in full discharge of the indictment on the grounds the killing was intentional.
Thompson had previously been found guilty of murder, but had his conviction quashed by the COA in February 2019, after it determined the trial judge made an error by misdirecting the jury over the application of the defence of provocation.
During his two Supreme Court trials, Thompson claimed the killing of Mr Knvyett was the result of “unwanted sexual” advances.
Mr Knyvett died after being beaten about the head numerous times with a glass bottle.
The COA, comprising President Debra Mullins and Justices Jean Dalton and Peter Flanagan, in its eight-page written decision today again highlighted Thompson’s assertions at trial.
“Mr Thompson’s case at trial was that the provocative conduct was the unwanted sexual advance with the accompanying words accumulated with the subsequent derogatory remark that Mr Thompson attributed to the deceased as ‘sort of homo, like, gay, sort of like joking’ that provoked Mr Thompson in circumstances where he said he had been sexually abused for some 10 years by the deceased.
“The defence had an alternative case for provocation based solely on the derogatory remark made by the deceased some 30 to 45 minutes before the fatal assault in the context of the history between the deceased and Mr Thompson.
“The summing up on provocation (by the judge to the jury) was complicated by the alternative scenarios that the directions had to accommodate.
“There were two alternative cases of provocative conduct and each alternative had to be considered on two bases: either the jury accepted there was a history of sexual abuse by the deceased to Mr Thompson over the period of 10 years; or the jury did not accept that history.”
During the trial, the prosecution contended that Thompson’s allegations of any form of sexual contact – either consensual or not – was “neither reliable nor credible”.
The COA said: “The trial judge summed up provocation to the jury on the basis they either accepted there had been sexual abuse or sexually inappropriate behaviour by the deceased towards the appellant over many years or, if they did not accept that had been the nature of the relationship, they still had to consider the defence of provocation, if they accepted that the sexual advance happened on the day the appellant killed the deceased with the comments attributed to the deceased by Mr Thompson.
“(Thompson) has not shown error on the part of the trial judge in the directions given on the second element of the defence of provocation. It follows that the appeal must be dismissed.”
Supreme Court Justice Susan Brown, when sentencing Thompson last year, said his conducted toward Mr Knyvett was both “intentional and calculated”.
“The nature of the relationship (between you and Kynvett) has been the subject of much evidence in this court. He has not been here to defend himself or provide his version of events.
“It does not appear that there is any suggestion of any forced conduct by him on you.”
In March 2017, Queensland passed legislation removing the so-called ‘gay panic’ defence from the state’s Criminal Code.
The laws amended section 304 of the Criminal Code Act 1899 by removing unwanted sexual advance as a partial defence of provocation for murder.
Prior to the law changes, unwanted sexual advance could be used as a partial defence, leading to a murder charge being reduced to manslaughter.
In 2010, the legal loophole was used by Jason Pearce, 43, and Richard Meerdink, 46, to secure jail sentences of nine years for the bashing death of a man they falsely accused of making unwanted sexual advances.
Read today’s decision.