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[2024] ACTSC 187
General information, not legal advice.
Supreme Court of the ACT
2024-06-18
Mossop J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Basic (No 2) Citation: [2024] ACTSC 187 Hearing Date: 11, 12, 18 June 2024 Decision Date: 18 June 2024 Before: Mossop J Decision: 1. On the statutory alternative count that the accused intentionally and unlawfully choked, suffocated, or strangled [the complainant], contrary to s 28(2)(a) of the Crimes Act 1900 (ACT), the accused is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months. Catchwords: CRIMINAL LAW – OFFENCES AGAINST THE PERSON – Acts endangering life – choke, suffocate or strangle – render insensible or unconscious – family violence – complainant shouting at accused and throwing watermelon on floor – accused held neck of complainant to get her to “shut up” – whether complainant was rendered insensible or unconscious – consideration of the meaning of “apply pressure, to any extent” – not found beyond reasonable doubt that complainant was rendered insensible or unconscious – found beyond reasonable doubt that accused applied pressure to complainant’s neck – guilty of statutory alternative CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – serious offence but offending at low end of objective seriousness – submissions made for non-conviction order – importance of general deterrence in context of family violence offending – convicted and sentenced to four months’ good behaviour Legislation Cited: Crimes Act 1900 (ACT), ss 27(3)(a), 28(2)(a), 48C, 48D, Table 48D item 8 Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 17, 35 Evidence Act 2011 (ACT), s 136 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 13(2), 49(5), 57(2), 72(2) Family Violence Act 2016 (ACT), s 8 Supreme Court Act 1933 (ACT), ss 68C(1), 68C(2) Cases Cited: DPP v Basic [2024] ACTSC 186 Parties: Director of Public Prosecutions Armin Basic (Accused) Representation: Counsel M Howe (DPP) JR Walker (11-12 June 2024) and K Saeedi (18 June 2024) (Accused) Solicitors Director of Public Prosecutions Kamy Saeedi Law (Accused) File Number: SCC 112 of 2023 MOSSOP J: Introduction
The accused faces a single charge of a contravention of s 27(3)(a) of the Crimes Act 1900 (ACT) (CAN 1565/2023). He is charged that on 9 February 2023 at Canberra, he intentionally and unlawfully choked, suffocated, or strangled the complainant, so as to render her insensible or unconscious, and the offence involved family violence. The reference to family violence arises from s 48C of the Crimes Act, which provides that an offence is an aggravated offence if it involves family violence. Family violence is defined in s 8 of the Family Violence Act 2016 (ACT).
Pursuant to s 48D and Table 48D item 8 of the Crimes Act, where the offence charged is a contravention of s 27(3)(a) and it is an aggravated offence because it involves family violence, then if the jury is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of a contravention of s 28(2)(a), the jury may find the accused not guilty of the offence charged but guilty of the statutory alternative. The same situation applies where the trial is by judge alone. The prosecution also relied upon this statutory alternative.
Election for trial by judge alone
Directions
Under s 68C(2) of the Supreme Court Act, I am obliged to set out: (a) the principles of law applied; and (b) the findings of fact which I make.
I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3). The directions that I give myself are set out in a schedule to these reasons.
Elements of the offence(s)
The elements of the offence are: (a) the accused suffocated, choked or strangled another person; (b) the accused intended to suffocate, choke or strangle the other person; (c) the other person is rendered insensible or unconscious; (d) the accused’s conduct is unlawful; and (e) the offence involves family violence.
There is a controversy between the parties as to whether there is an additional element of the offence: that the accused intended to render the other person insensible or unconscious. This issue is returned to later in these reasons (see [108] below).
The statutory alternative offence is the offence of intentionally and unlawfully choking, suffocating or strangling another person but without the additional requirement to render the person insensible or unconscious. The elements of the offence are: (a) the accused suffocates, chokes or strangles another person; (b) the accused intends to suffocate, choke or strangle the other person; and (c) the conduct is unlawful.
For the purposes of these offences, the words choke and strangle are both defined to include "apply pressure, to any extent, to the person’s neck”.
The prosecution case
The prosecution case was, in summary, that the complainant, a 24-year-old international student, was living with the accused, a 62-year-old man. They had been living together for approximately eight months. On 9 February 2023, the complainant became very upset at the behaviour of the accused. While screaming and shouting, she went to the kitchen and threw a watermelon that was on the kitchen bench onto the floor. The accused approached her and held her arms. She slipped and fell to the floor. While on the floor, the accused put one of his hands around her neck for at least five seconds and this caused her to be unable to hear and unable to see. She called the police. The first officer to arrive was Detective Sergeant Christopher Tanner, who recorded his interaction with the complainant on a body-worn camera. She was subsequently taken to the Canberra Hospital where she was examined by Dr Russell Thomas.
The prosecution contended that being unable to see or hear was sufficient to establish that the complainant had been “rendered insensible” for the purposes of the charge on the indictment. Evidence of the witnesses
It is convenient to first determine what findings can be made beyond reasonable doubt. Those findings will influence the legal issues that it is necessary to determine.
At the hearing the following witnesses gave evidence: (a) the complainant; (b) Detective Sergeant Christopher Tanner; (c) Dr Russell Thomas; (d) the accused; and (e) Susan Basic.
The following exhibits were also tendered: (a) Exhibit 1, Audio recording of the complainant’s telephone call to emergency services; (b) Exhibit 2, Medical Report of Dr Russell Thomas, dated 22 March 2023; (c) Exhibit 3, Physical copies of the bundle of photographs shown to Dr Russell Thomas; (d) Exhibit 4, Electronic bundle of photographs shown to the complainant; (e) Exhibit 5, Detective Sergeant Christopher Tanner body-worn camera footage; (f) Exhibit 6, Constable Timothy Faulds body-worn camera footage; (g) Exhibit 7, Electronic copies of bundle of photographs in exhibit 3; (h) Exhibit 8, Agreed Fact that the accused has no criminal history.
The complainant’s evidence in chief was largely given by an evidence in chief interview with Detective Sergeant Tanner and a telephone interpreter on 29 August 2023.
Each of the most significant sources of evidence will be referred to before conclusions are reached as to the findings that may be made beyond reasonable doubt.
The 000 call
The complainant made a call to police just before 11:55pm on 9 February 2023. This call records a desperate sounding complainant speaking in broken English to the operator. She was asked what happened and said, “the man has violence”. She is asked to calm down. Again, she is asked what happened to her and the transcript records: It’s the violence (indistinct) fighting me and the guy and has broken my mouth. My mouth. My mouth is keeping with the blood. The other guy is grabbing me (indistinct).
Later she says: Complainant: The other guy is fighting me in the (indistinct) they pulling me in the floor and have broken my mouth. Police emergency: Who? Complainant: My mouth is keeping the blood. Police emergency: So who’s fought you? Complainant: The other guy is the – fighting me and the same guy is, ah, fighting. Mr Basic: Don’t lie (indistinct) Complainant: I’m not to lie. Mr Basic: (indistinct) Complainant: I’m not (indistinct) Mr Basic: Don’t lie. Don’t lie.
What the accused meant by the statements “Don’t lie”, or what statements of the complainant they were directed to, was not explored in his evidence in chief nor in cross-examination.
Body-worn camera footage
At the relevant time, Christopher Tanner was a Detective Sergeant of the Australian Federal Police. He responded to a request to attend the premises at 11:55pm on 9 February 2023 and arrived at 12:01am on 10 February 2023.
Body-worn camera footage from the camera worn by Detective Sergeant Tanner was admitted into evidence over an objection on behalf of the accused. My reasons for the ruling that the footage was admissible are published separately: DPP v Basic [2024] ACTSC 186.
The body-worn camera footage shows Detective Sergeant Tanner arriving at the premises. The door is opened, and the complainant turns the internal light on. Another police officer arrives, and Detective Sergeant Tanner asks the accused, who is calm and cooperative, to come outside and talk to the other officer. Detective Sergeant Tanner then goes inside and talks to the complainant. The complainant is extremely upset.
The complainant launches into quite a lengthy explanation of the background to the incident rather than the incident itself. After listening to this for some minutes, Detective Sergeant Tanner asks the complainant whether she is hurt. She explains she has a cut lip. Tanner: How did you get the sore lip? The cut on the lip? Complainant: I don’t know, I-- but he hold my neck. I just, uh, lie down here. And my ear is like ‘woom woom’, I can’t hear. And, um, I relax a few second, like, uh, thirty second? And I feel, ‘Oh my god.’ Feeling something. I can’t hear. And he hold my-- my neck. And when I touch my mouth, ‘oh my god,’ my mouth is broke-- broken. You can straightaway can see.
The words alone convey less than the video as a whole. The following table summarises what can be observed when these words were said:
Time in video What complainant does What she says The complainant 6:40 "He hold my neck." gestures to her throat The complainant points 6:43 to the place on the floor "I just, uh, lie down here." in front of the oven The complainant "And my ear is like ‘woom woom’, I 6:45 gestures to her ears can't hear." The complainant "I relax a few second, like, uh, thirty 6:49 gestures to her throat second? And I feel, 'Oh my god.'" and rolls her eyes back The complainant 6:56 "Feeling something." gestures to her lip The complainant 6:58 "I can't hear." gestures to her ear The complainant 6:59 "He hold my... my neck." gestures to her throat "When I touch my mouth, oh my god, The complainant 7:02 my mouth is broke-- broken. You can gestures to her lip straightaway can see."
Later in the discussion with Detective Sergeant Tanner, the audio cuts out for approximately eight seconds. During that period (11:08-11:16 in the video) the complainant gestures to her lip and then gestures to her throat. She then pinches her throat in what appears to be the area where two small abrasions are shown on the front of her neck in photos taken during the subsequent medical examination. When the audio recommences, Detective Sergeant Tanner appears to repeat the complainant’s words, saying: I think you need to get – we'll need to get someone to look at your neck tonight, is that okay? - - - I think it's important that someone looks at your neck tonight. When you say that you were – someone had their hands on your neck for twenty seconds and you couldn't hear, is that right?
She appeared to agree with this summary, indicating that it only happened 10 minutes earlier.
Subsequently (at 19:13 in the video), the complainant gestured to her neck and said “He all the time just hold my neck. Don’t want me sh – um, speak loud”. She then points outside and said “Don’t want the neighbour know the – our fighting. Yep. All the time.”
The evidence is significant because it is visual evidence recording the complainant making statements about what occurred in circumstances where those statements are likely to be reliable because of their contemporaneity, her state of distress, and the unlikelihood that she would have fabricated or mis-remembered the placing of the hand on her throat in those circumstances. Although the sequence of events that she described is not very clear, the holding of the complainant’s neck is clearly demonstrated by her. It is significant that, in reporting what happened, the complainant does not appear to appreciate any significance for police of her reporting that the accused had his hand around her neck. So far as injuries are concerned, she was more concerned with her cut lip. The lack of appreciation of the significance of his hand around her neck makes her reporting, on multiple occasions during the course of the interview, of that having occurred very credible.
Evidence in chief interview
The evidence in chief interview occurred on 29 August 2023. It was conducted with the assistance of a telephone interpreter. The interview was partially carried on through the interpreter and partially by the complainant speaking in English. The complainant appears to be frankly recording what she can recall about the incident as best she can in English or with the benefit of the interpreter.
Her initial description of the incident (question 30) indicated that she did not know the matter was going to be taken so seriously and that she might have to give evidence.
She said that she and the accused had an argument. She was “[i]mpossible, like, angry”. She grabbed a watermelon and smashed the watermelon in the kitchen. After she finished that, she opened the fridge and wanted to smash more food. However, the accused stood up from the couch and he used his hands to hold her in order to stop her from smashing more food. She said it was very dark in the room. She said he tried to “hold onto me and hold me down”. With the assistance of the interpreter, she said: Q32. INTERPRETER: So, ah – but the light wasn’t on. So I tried to, ah, get out of the kitchen, but I think I tripped myself so I, ah, end up on the floor and, um, ah, screaming and crying. And he was holding me down, but at one stage, he actually put his, ah, hand on my neck and sort of like with the strangle motion. … Q34. INTERPRETER: Ah, my boyfriend was talking about something, but, ah, I didn’t actually hear what, ah, he said. And when I got up and, ah, I felt that my, ah, lip must be bleeding, so I licked my right lip. I can, ah, taste blood. And, um, that’s when I thought, ‘No. It’s actually more serious than I thought.’ … Q35. INTERPRETER: So then I got really angry, because after I licked my, ah – licked and realised that it was bleeding, I was – I got really angry and, um, I said to him that I’m going to call the police. … Q37. INTERPRETER: And, ah, I didn’t – ah, in my mind, ah, the incident is actually not that serious and is that – ah, as it is now. And, um, because I felt that, ah, all that happened, it was, ah, in the heat of the moment, um, because we were arguing. And I didn’t feel – I didn’t that, um, he did that. He deliberately set out to hurt me.
The transcript at this point is inaccurate and should read “And I didn’t feel – I didn’t that, um, he did – that he deliberately set out to hurt me”.
The transcript continues: Q38. INTERPRETER: … I didn’t – I didn’t actually think that, um, ah, he was, ah, intentionally trying to hurt me, ah, because we were arguing at the time and, ah, both of us were really, ah, angry. And, ah, we were arguing, and also my – because my lip was (indistinct) start to bleed, and I was really annoyed. And I worry that it might leave a permanent scar, so I call the police. … Q40. INTERPRETER: … So 10 minutes later, the police came. And the police asked me if I would like to go to the hospital. And, ah, because I can feel – I can – I could feel that my, ah, lower lip, there was a cut there, so I can taste the blood, so I agreed that, ah, I would go to the hospital. And when we were at the hospital and, um, they took some photos. And because he had – he has been holding me down, ah, so I, ah – there – there was a bit of, ah, grazing on my skin, but, ah – and that was, ah, just in the – when we were arguing. He didn’t actually, ah, ah, bash me or anything.
Complainant’s oral evidence
In further evidence in chief given in court, the complainant was asked whether, while the accused had his hand on her neck, there was any stage where she lost consciousness. She said, “No”. She said she did not know how the grazing on her body got there. She was shown photos taken by a police officer at the hospital. She said that she did not know what caused her lip to bleed. It might have been her teeth. She said that prior to the incident she did not have any injury to her lip. In relation to two abrasions on her neck, she could not remember if, before the incident, she had those abrasions. She did not know how she suffered those abrasions to her neck. She did not know how she suffered the abrasions to her shoulder but did say that they were not there prior to the smashing of the watermelon.
She said that she did not remember whether she made contact with the island bench or the cupboards or the drawers as she was falling to the ground.
In cross-examination, she accepted that she and the accused had a happy relationship. She agreed that they had been on a holiday to the Gold Coast in May 2022, to Thailand in June 2022 and then to Thailand again, returning to Australia on 5 February 2023. She agreed that the accused was kind to her and generous to her. She agreed that she enjoyed his company. She agreed that when the accused was confronted by conflict, he tended to go quiet and that he did not like arguments or conflict. He tried to avoid conflict and arguments. She agreed that during the argument on 9 February 2023, he did not shout or scream and that he was trying to avoid conflict with her. She agreed that after she smashed the watermelon, he came towards her. She could not remember whether he had moved some plates or other items away from her. She could not remember whether she was screaming at him. She agreed she tried to move away from him towards the bedroom. She agreed that it might have been then that she slipped and fell. She could not remember getting up very quickly and going to the bathroom. She could not remember whether, when she came back from the bathroom, she told the accused that her lip was cut and bleeding. She agreed that she thought it was his fault that she had cut her lip and that she was very, very angry with the accused.
She disagreed that her memory of the event was unclear. She agreed that on the morning of the incident, she did not understand everything that the police were saying to her and that she felt police were not understanding everything that she said to them. She agreed that there were some concepts in Mandarin that were difficult to express in English and that this was a further difficulty she had on that morning. She agreed that she had the same difficulties when speaking to the doctor at Canberra Hospital. She agreed that she had asked police to discontinue the charges against the accused. She agreed that was because police had misunderstood what she had told them and had the wrong idea about what happened with the accused. The cross-examination concluded: Counsel: [Complainant], Mr Basic has never laid a hand on you during your relationship. Do you agree or disagree? Interpreter: I agree. Counsel: I’ll clarify what I mean by that perhaps, your Honour. [Complainant], Mr Basic has never hurt you during your relationship physically. Do you agree or disagree? Interpreter: I agree.
Christopher Tanner
Christopher Tanner was a Detective Sergeant at the Woden police station. He gave evidence relevant to the admissibility of the body-worn camera footage that he had taken on the evening when he attended the premises. He said that it was Constable Hopkins, a female police officer who also attended the premises, who went with the complainant to the Canberra Hospital. As the informant, he obtained the 000 call made by the complainant referred to earlier in these reasons. Constable Faulds also attended the premises that evening. Evidence from Constable Faulds’ body-worn camera was also tendered through Mr Tanner. The evidence in the body-worn camera footage from Mr Tanner and Constable Faulds both show the accused behaving in a calm and cooperative manner.
Mr Tanner was asked questions in cross-examination relevant to the admissibility of the body-worn camera footage. He said that the accused was polite, his body language was relaxed, and he did not cause the police any difficulties whatsoever. He said that the accused asked why he was being arrested and that he was surprised at being arrested. He said that understanding the complainant was difficult in some parts and required clarification. It was suggested to him that he had made an assumption about what had happened. He said it was not an assumption but that he did have a suspicion as to what had happened. He did not agree with the proposition that his decision-making involved conjecture.
He agreed that the complainant had made multiple attempts to have police cancel the charges. The first was on 10 February 2023, when she went to the front desk at the Woden police station. The constable who spoke with her reported to Mr Tanner that, when told that the charge would not be cancelled, she became upset. She also spoke to Mr Tanner on two occasions on the phone. His evidence was: “My assessment of what she told me, it was what she said still had occurred but she was downplaying the seriousness or she didn’t realise how serious it was or what we were going to do as a result”. He agreed that she had told him that she thought police had misunderstood what she had tried to tell them but that he interpreted it as indicating that she did not realise what the police course of action would be.
In re-examination, he said that in the conversations with him, the complainant had never said that she had told police things that were not true about what happened on 9 February 2023. Similarly, he received no information from the constable on duty who spoke with her on 10 February 2023 that any of the information she had provided earlier that day was not true.
Dr Russell Thomas
Dr Russell Thomas is a forensic medical officer with the Clinical Forensic Medical Service in the ACT. He examined the complainant on the morning of 10 February 2023. He prepared a report dated 22 March 2023.
The report recorded that a telephone interpreter was used during the examination. Although the interpreter was available for the whole of the consultation, Dr Thomas could not recall whether all interactions were interpreted or whether some information was given by the complainant directly. He recorded statements made by her in quotes. He could not recall whether these were statements that the complainant made in English or whether they were the words of the interpreter. However, they included: “He used his hand to grab my neck, I couldn’t talk, it lasted one minute” “He used his hand and squeezed my neck, and pushed me to the ground with his hands.” “I couldn’t hear anything.” “I was unable to see.” “It lasted twenty seconds.” “I found my mouth was bleeding.” “He released my neck.” “After he moved his hand, I found my mouth was bleeding, I called triple zero.”
Each of these was elicited as a result of open questioning. However, they were recorded as isolated quotes rather than the whole of the narrative. Nonetheless, the doctor indicated in oral evidence that if reproduced in quotes, they were the words that were spoken.
When asked about the strangulation event, the answers that he received led to the following being recorded: On specific questioning [the complainant] reported: 1. That she was experiencing the following symptoms: a. Sore mouth. 2. The following additional information regarding the reported strangulation event: a. Armin BASIC used his left hand to strangle [the complainant], approaching her from the front. b. The duration of pressure was reported as between twenty (20) seconds and one (1) minute. c. The following symptoms were experienced by [the complainant] during the strangulation event: i. Neck pain. ii. Tunnel vision. iii. Flashes before her eyes. iv. Loss of consciousness – reported as lasting approximately 30 seconds. v. Light-headedness. vi. Loss of hearing. vii. Ringing in her ears. viii. Headache. ix. Feeling as though she might die. d. The following symptoms were experienced by [the complainant] during and after the strangulation event: i. Voice changes. 3. That she had no known pre-existing medical history. 4. That she was not currently prescribed any medications. 5. That she had no known allergies to prescribed medications.
He recorded that the symptom that the complainant reported was a sore mouth. He took photographs of the complainant and described the abrasions shown on those photographs. In relation to strangulation, he recorded that finding no injury is the commonest finding in cases of non-fatal strangulation, with no visible injury in up to 50 percent of patients. He recorded that the reported symptoms during and after the reported strangulation were symptoms that can occur in the context of non-fatal strangulation. He said that the reported loss of consciousness was a clinically significant finding and has the potential to be life-threatening. He made comments about the laceration and abrasions and the swelling of the complainant’s lower lip. He made comments on the abrasions to the complainant’s chest wall and left shoulder tip. He also made comments on the bruising of the anterior and posterior torso and tenderness of the paraspinal muscles on the right side.
Armin Basic
The accused gave evidence. It was an agreed fact that he had no criminal history. At the time of the incident, he was 62 years old. He was born in Bosnia-Herzegovina and migrated to Australia in 1983. He married his wife, Susan, in 1983. He has three adult children, two of whom have special needs, details of which were given in evidence but are unnecessary to record in these reasons. He separated from his wife in 2016. She lives in Torrens; he lives in Chifley. A family company owns the house in which he was living when the incident occurred. In the past, he had been a boxer. He gave evidence about his relationship with the complainant. He said his relationship with her was pretty good, that they were very respectful to each other and that there was no violence in the relationship. He described the circumstances leading to the argument between them in a manner reasonably consistent with that given by the complainant, although on his version it occurred somewhat earlier in the evening.
Immediately prior to the watermelon incident, he described her coming to talk to him and then getting up and saying, “Are you going to talk to me?”. She went to the kitchen and threw watermelon on the floor from the kitchen bench. He said he got up and said, “Just relax. Just slow down. Don’t shout. Don’t scream”. He said she was going into the kitchen and just slipped on the floor. She was saying “You don’t respect me. You don’t like me. You don’t talk to me.” He said she fell near the oven. She then just got up and went to the bathroom ensuite. He could not recall whether she was saying anything or what she was saying when she did this. After about four or five minutes, she called the police and he said “Yes. Just call.” Then she came and sat on the couch. He denied touching her at any point during the incident in the kitchen. He agreed that he was the male voice in the background of the 000 call.
He was asked about having told the police officer that he had asked the complainant to leave the residence. He said he had never told her that she must get out but said that she had been invited to live at his house after her lease had expired and until she could get somewhere else to live. She had been looking for a place at UniLodge and got a place there afterwards.
He said he was surprised when he was arrested and told police there was no reason to do so because he did not do anything wrong.
Cross-examination largely involved taking him again through his version of events. He denied that in the couple of days beforehand there had been some friction or arguments between the two of them. He agreed that he was still married to his wife at that stage but denied that the complainant had mentioned any concern about that to him. He said that the complainant knew that he and his wife were still married.
After asking about the Japanese word, the complainant did not talk and was quiet. He did not ask any more questions in case this gave rise to more problems. He thought she was angry. There was no conversation on the car trip back to Chifley. He thought it was clear that something was wrong, but the complainant did not say anything. The fact that something was wrong did not mean that she was upset with him because he thought it might have been some other issue.
Susan Basic
Susan Basic is the accused’s wife. The couple have been separated since 2016. They have three children aged 36, 34 and 26. She described the circumstances in which the couple separated. She described remaining on friendly terms and cooperating with the accused in relation to the two eldest children, who have special needs. She described that they have not separated the family finances because the main focus is caring for their disabled children. She described him as being a nice guy and disciplined, not condoning violence outside of the boxing ring. She said that he had never been involved in a fight outside of the ring, never using violence outside of the ring. She said that he never used violence towards her, and never used violence towards anyone she knew. She gave evidence about the symptoms suffered by her eldest children and how one of them can be aggressive. She said that the accused never responded to that child with violence. She said that if there is conflict, the accused will go quiet, not argue back, and attempts to avoid conflict.
There was no cross-examination.
Consideration
The body-worn camera footage is very significant evidence. It was recorded only a few minutes after the incident in question occurred. The complainant is shown in the video to be still extremely distressed for the first few minutes of the interview. The proximity to the events in question and her state of distress are such that there is no realistic room for a suggestion of fabrication. While her state of distress could be consistent with making a factual error, such as directly attributing her mouth injury to the conduct of the accused, in relation to the conduct central to the present allegations, namely the placing of the accused’s hand around her neck, there is no realistic room for mistake as to whether or not that occurred. During the course of the recording, the complainant, on at least five occasions, demonstrates the accused placing his hand on her neck as well as describing it. It is significant that this occurs in a context where this is not the main issue of significance for her. It was the cut in her mouth which led her to be concerned enough to call police. As demonstrated by her subsequent evidence, she had no real appreciation of the legal significance of him having placed his hand on her neck and she was more focused upon the injury to her mouth and his previous conduct which led to her anger and agitation. Her reporting of what, in her mind, was a subsidiary issue makes the allegation more credible than if it was the principal matter of concern. It is significant that at the time when she described the accused’s hand being around her neck she also described, although not in a very coherent manner, effects which may well be the consequence of strangulation (“And my ear is like ‘woom woom’, I can’t hear”, “I relax a few second” and “I can’t hear”).
The evidence of Dr Thomas is most significant in relation to its complaint evidence component as distinct from the documented injuries. If the complaint evidence as recorded in Dr Thomas’ report is accepted at its highest, then the nature of the strangulation would be extremely serious. The evidence provides the foundation for the prosecution contention that the complainant was rendered insensible by being unable to hear anything and unable to see anything, with one or other or both of these conditions lasting for 20 seconds. However, it is not possible to accept the history recorded in Dr Thomas’ report as to the nature and consequences of the strangulation beyond reasonable doubt.
That is because the consultation with Dr Thomas was complicated by the fact that it was conducted through an interpreter and: (a) it is not clear which of the parts of the recorded history were obtained directly from the complainant and which were obtained through the interpreter; (b) there is no evidence of the qualifications of the interpreter, the experience of the interpreter or whether there was any issue relating to a dialect of Mandarin which affected the reliability of the interpretation; (c) although there are quotes from either the complainant or the interpreter, there is no overall coherent narrative describing the strangulation; (d) it is not clear what questions were asked in order to elicit the significant variety of symptoms reported as a result of the directed questioning by Dr Thomas in circumstances where it is not clear whether the complainant or the interpreter provided those answers and where the range of symptoms extended beyond those reported on any other occasion; and (e) in her evidence in court, the complainant denied ever being rendered unconscious, being one of the symptoms recorded by Dr Thomas as having been reported to him.
Verdicts
Schedule – directions
General principles
The prosecution bears the onus or burden of proving the guilt of the accused. The prosecution has asserted that the accused has committed criminal offences; therefore, the prosecution must prove that the accused committed those offences. The accused does not have to prove that he did not commit those offences.
The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.
The accused is presumed, by law, to be innocent of the offences with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence, and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to evidentiary material. I must view that material coldly, clinically, and dispassionately, and I must not let emotion enter into the decision-making process because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence.
I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic, or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said which I consider worthy of acceptance and reject the rest of what that witness said if I consider it unworthy of acceptance.
In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt. The prosecution does not have to prove everything about which evidence has been given beyond reasonable doubt.
Accused gives evidence
Manner in which evidence was given
Conflict in the evidence
Case largely based on complainant evidence
Complaint evidence
The prosecution has relied upon evidence of complaints made by the complainant about the conduct of the accused. That evidence is the evidence in the body-worn camera footage from Detective Sergeant Tanner and the evidence of what the complainant told Dr Russell Thomas about what had occurred.
If I accept that she did make these complaints and I conclude that the evidence is consistent with the evidence of the complainant, then I can use that evidence in two ways.
First, I can use evidence of what was said in the complaint as some additional evidence that the incident did occur in the way that the complainant said. Not only would I have the evidence given by the plaintiff in her evidence in chief interview and in court, but I would also have the description of the incident that was given to Detective Sergeant Tanner and to Dr Thomas.
Second, the evidence may be relevant to the truthfulness of the complainant’s evidence in court. The prosecution says that the fact that the complainant complained to the two witnesses when she did, and the circumstances in which the complaint was made, makes it more likely that the complainant is telling the truth about what the accused did.
In relation to both uses, counsel for the accused made submissions as to the reliability of the complaints. In particular, he pointed to the complainant’s limited understanding of English. In relation to the complaint to Detective Sergeant Tanner, he pointed to the potential for there to be misunderstandings as to what the complainant was being asked and the difficulty in interpreting what she said. In relation to the complaint recorded by Dr Thomas, he pointed to the involvement of the interpreter, the lack of evidence as to the qualifications and experience of the interpreter, and the inability of Dr Thomas to recall what information was provided using the interpreter and what information was provided directly by the complainant. Each of these matters was said to reduce the weight that could be given to any complaint made to either the police officer or the doctor.
I must bear in mind that the fact that someone repeats an allegation on one or more occasions, does not necessarily indicate that the person is truthful or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.
Good character
Expert evidence
In this case, Dr Russell Thomas was called as an expert witness. An expert witness is a person who has specialised knowledge based on that person’s training, study, or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. The value of any expert opinion is dependent on: (a) the reliability and accuracy of the material which the expert used to reach his or her opinion; and (b) the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.
Experts can differ in the level and degree of their experience, training, and study, yet each can still be an expert qualified to give an opinion, where that opinion is based on that witness’ specialised knowledge.
The evidence of Dr Thomas was admitted so as to provide me with evidence about the complaints made by the complainant about what occurred, his description of the injuries he observed that she had suffered, and his opinion about the cause of those injuries.
There was no challenge to Dr Thomas’ expertise. There was a challenge made as to the reliability of the history that he recorded in his report which formed the basis for his opinions. That was based upon the difficulties that the complainant had in speaking and understanding English, the need for her to answer questions when her understanding and expression of spoken English was limited, and the absence of evidence as to the reliability of the translation service that was used at times during the consultation.
Sentencing [Following the oral delivery of the reasons, the parties made submissions on sentencing]
The offender has been found guilty of a contravention of s 28(2)(a) of the Crimes Act. The maximum penalty for that offence is seven years. It is seven years rather than five years because it is an aggravated offence, being an offence involving family violence: Crimes Act, s 48C.
The incident was brief. It did not involve the application of pressure of any significance. It occurred in circumstances where the offender was attempting to prevent further damaging conduct by the complainant and after she had thrown watermelon on the floor. She was in such a state of agitation that it was likely she would have continued throwing food unless he intervened. The reason for her agitation was not something which could be taken as justifying her conduct in throwing watermelon or other food on the floor. The intention of the offender was not to cause immediate harm to the complainant but instead to get her to stop shouting. The relationship between the complainant and the offender involved a significant power differential both in terms of physical strength, and age and maturity. However, while that power differential existed and may have been a source of underlying difficulties in the relationship, that differential is not a significantly aggravating factor in the particular circumstances of this offending as it was a one-off event, responding to unusual circumstances and not involving any significant use of force. The offending is at the low end of objective seriousness for this serious offence.
The subjective circumstances of the offender are outlined to a significant extent in the substantive reasons. He is a person otherwise of good character. He has no criminal history. He is a person who attempts to avoid conflict and, as a consequence, the present offending must be seen as an aberration which occurred only in unusual circumstances. He has been subject to very serious allegations over a substantial period of time and that will have been a financial and emotional burden upon him.
The offender spent a short period in the custody of police, being arrested in the early hours of 10 February 2023 and released by the Magistrates Court later that day. The offender pleaded not guilty, and no discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) is available.
In my view, consistent with the submissions of the parties, the threshold for the imposition of a custodial sentence has not been passed.
Submissions were made directed to the potential for a non-conviction order under s 17 of the Crimes (Sentencing) Act. That was principally because of the consequences that the recording of a conviction would have for the potential for the offender to travel overseas.
The matters to consider are set out in s 17(3) and (4). The offender’s age, character, and antecedents are favourable. The offence is a serious one, but this is an example at the low end of objective seriousness for this offence. The circumstances in which the offending occurred involved the complainant screaming and shouting and throwing food on the floor and apparently intending to continue doing so. There was some debate about whether this was an extenuating circumstance. In my view, it is either an extenuating circumstance or another matter which it is relevant to take into account pursuant to subs (4).
I certify that the preceding one-hundred and forty-six [146] numbered paragraphs are a true copy of the Reasons for Judgment and Sentence of his Honour Justice Mossop. Associate: Date: 29 July 2024
DPP
Basic
The interpreter just confirms something and then continues: Q41. INTERPRETER: … So I think the – the sort of – ah, the discrepancy – the discrepancy between what thing – what [the complainant] said to you and, ah – was because, um, when I said to you – because that – ah [the complainant] said, ‘He was holding me down,’ (indistinct) he didn’t actually holding me down, because I’d fell. I think I tripped and fell by myself. So the – the holding-down action was there, but it wasn’t in, um – ah, it wasn’t a direct cause as, ah – the boyfriend sort of, ah, wasn’t the cause of end up on the ground. She wanted to emphasise that. She actually tripped and fell. She couldn’t remember how it happened because it was dark, but she actually tripped and fell. That’s why she was on the ground. And the boyfriend was holding onto her and tried to stop her from, ah, smashing things. Yeah. … Q42. INTERPRETER: … Yeah, the hospital just took the photo of my lip, and also there were bit of, ah, ah, abrasion, grazing on my skin, and they took photos of that. But I think they – I think they were the result of the two of us arguing. It wasn’t really because he was hitting me or anything. … Q44. COMPLAINANT: They scan my neck, and because I said, ‘Oh, I’m’ – that moment that night and I’m screaming and crying very a lot, and, ah, he don’t want, ah, like, a neighbour – I don’t know, because, ah, he – I think he – he don’t want, like, a neighbour hear us. So for – like, argue, so a lot because of the – these – another houses are very close. The front of the house very close. And – yeah. But he just – I think he just said he was hand on me like, let me in – like, ‘Stop talking. Stop crying. Just – just shut up.’ Like that. Ah, he’s not, like, hold me very hard. Is like – but I can’t feel him, like, just like, ‘Oh, stop.’ That’s – yeah.
When the complainant was saying this, she demonstrated what she was saying by putting her hand around her neck.
She said that she tried to contact the accused later and subsequently went to court to cancel a restraining order that appears to have been put in place. She said she did not think he wanted to hurt her. He asked her whether he could call her, and she said he could. She said that his lawyer had told him that it was better for them not to talk to each other. She said that there had been “something like a misunderstanding”. She thought that maybe “they think, ah, this guy will kill me or something” but she said, “he not, ah, like, really hurt me, just (indistinct) we are too angry and – yeah, that’s the story”. In the portion transcribed as “indistinct”, she said “bad moment” so that the transcript ought to read “just bad moment we are too angry”.
After the complainant had given that version of events, the police officer then went back and asked her more detailed questions. Much of the questioning and answers are unnecessary to recall. The questions and answers related to the circumstances in which the two had met. They also described the circumstances earlier on 9 February 2023 which led to their argument. The trigger for the argument appears to have been relatively trivial, the complainant declining to translate a Japanese word on a menu because she was too tired after work and the accused taking that as indicating that she was impatient with him and not being polite. This led to him being “very cold” to her and him telling her to leave him alone, at which she got very upset.
The questioning returned to the central parts of the incident: Q160. Yeah. Tell me everything about that, how he was trying to stop you from screaming. And you mentioned that he was – he was holding you down after you tripped and fell. A COMPLAINANT: Not holding me in front of – I – I – because of I not turn on the light and, ah – he not holding me down because I – I think – because of my want – because we are so big of occasion I think I tried to run and I just – but I start by myself falling down. Q161. You just fell – you fell down by yourself? A COMPLAINANT: Yeah. Q162. Yeah. A COMPLAINANT: Because, ah, he wanna try stop me, and I just want to run away. And he want me stop to the smash the food. Q163. Stop you from smashing fruit. Yep. A COMPLAINANT: And that’s why, um, he – why falling down he – I am crying. Q164. Yeah. A COMPLAINANT: And I’m crying and, ah – I don’t remember. He talked to me because he – he want to stop me, like, cry or, like, a lot of the (indistinct) because we are very close, the neighbour. Q164. Mm-hmm. A COMPLAINANT: Yeah. And I get up and, ah, I use my tongue and lick my lips. I feeling on my lips is like a – (other language spoken) INTERPRETER: Split. My lip split. COMPLAINANT: Oh, my lips bleed. Q166. Your lips bleed. Yeah. A COMPLAINANT: Yeah, yeah. That’s – I’m feeling, ah, I need to go to hospital because I’m worried. Q167. Yep. Yep. Because your lip was bleeding. And you mentioned that there was – you were worried that it was going to be permanent damage. Is that correct? Yeah. Your lip was bleeding. You were annoyed – you worried that it was going to be permanent. A COMPLAINANT: Yeah. Q168. Yep. A COMPLAINANT: And, ah, but he not punch me. He not punch me. Q169. He didn’t punch you? A COMPLAINANT: No. He not punch me. But, ah, I don’t know why my lips is, ah – I just don’t remember, but I – I’m pretty sure he not punch me or hit me. No. I just remember he use a hand, like, hold me. And, ah, like, tried to let me stop. Q170. Yeah. Okay. And where were you when he was holding you? A COMPLAINANT: He hold me in the, like, arm. And after - - - Q171. Yep. A COMPLAINANT: And, ah, he – but he – because I’m crying so a lot and, ah, he want to, like, have stop, don’t have any (indistinct) he not – he hold my neck, but not, like, very hard. Like - - - Q172. Yeah. A COMPLAINANT: But, ah, he still – because he’s a (indistinct) he has so big the hand, and he hold my hand – my neck is like holding a (indistinct) Q173. Yeah. A COMPLAINANT: He just, ‘Okay. Stop.’ Q174. Big hands, but you didn’t – not hard. Is that right? A COMPLAINANT: No – no hard. Q175. Not hard. Yeah. A COMPLAINANT: Yeah. But, ah, still – because his hand too big - - - Q176. Yeah. A COMPLAINANT: And, yeah, that’s it. Q177. Yep. Okay. Were you standing or were you on the ground? Because you said that you tripped and fell, and you said that you got up. You picked yourself up. When he was holding in that motion that you told me, were you standing or still laying down? A COMPLAINANT: Ah, I can’t be too clear remember. But I just remember he hold my arm like, just like this ‘Stop. Don’t do’ - - - Q178. He was holding your arms. A COMPLAINANT: Yeah. Q179. Yep. A COMPLAINANT: But I – I not too clear remember he – when I stand up or falling down, he – maybe both. I don’t know. Q180. Maybe both. Can’t remember. A COMPLAINANT: I can’t remember. Q181. That’s okay. Like I said, if you don’t remember something, it’s best that you tell me that you don’t remember. A COMPLAINANT: Yep. Yes. Q182. That’s fine. We can work that out. And you mentioned that he was trying to stop you crying because the neighbours – you were really close to the neighbours - - - A COMPLAINANT: Yeah. Q183. - - - and you were crying. And then he – you said that his hands were big. He was holding you by the - - - A COMPLAINANT: Yep. Q184. You gestured to your neck. Is that correct? A COMPLAINANT: Yes. Q185. Yep. But you mentioned that it was not hard. Do you know what hand he used to hold you by your neck? A COMPLAINANT: I – I don’t remember. … Q195. Mm-hmm. Yeah. Okay. You mentioned that you couldn’t remember what hand. How did you feel when he had his hand on your neck? A COMPLAINANT: Because, ah, I just – like, I can see he, like – like, ah, hold my neck. It’s like, ‘Say something,’ but, ah – that moment, I don’t know – I can’t hear nothing. Q196. Mm-hmm. A COMPLAINANT: I don’t know – I don’t remember he talking. Q197 Couldn’t hear anything. Is that right? A COMPLAINANT: Because I don’t – just, ah – I think he talking something, but I didn’t hear. Q198. Yeah. Do you need more water? Are you okay? A COMPLAINANT: Yeah. Q199. Yeah. So he was saying something, but you couldn’t hear anything. A COMPLAINANT: Yeah. Q200. Yep. How else – did you feel anything else? A COMPLAINANT: No. Q201. No? And how long was he holding your neck for? A COMPLAINANT: Maybe just, ah, like, ah, 10 second or five second. I don’t remember. Because he – he not, like, hold me too long. Q202. Yep. A COMPLAINANT: After that, I stop, like, ah, screaming and I get up and I feel my lips is, ah – have blood. Yep. Q203. Yep. You stop screaming. Then you noticed the blood. A COMPLAINANT: Yeah. Q204. Okay. And that’s when you called police. Is that correct? A COMPLAINANT: Yes. … Q210. When you spoke to police on the 10th of February at Chifley, did you tell police that when he had had your – did you tell police that he had his hand on your neck? A COMPLAINANT: Yes. Q211. Yeah. Did you tell police on the 10th of February that when he had his hands on your neck, your eyesight was affected? A COMPLAINANT: Ah, my – I, like, ah, can’t see – maybe - - - Q212. Could not see? A COMPLAINANT: Yeah. Just, ah, like, suddenly. Like, after – but not keep too long time. Q213. Not long. Okay. A COMPLAINANT: Not long. But just, ‘Oh, I can’t see.’ Yeah. Q214. Yeah, yeah, yeah. Did you tell police on the 10th of February that you could not hear anything and that your vision went blurry? Is that correct? A COMPLAINANT: Yes. Q215. Yeah? A COMPLAINANT: Because that’s before talk to (indistinct) I’d fallen and he talking something. I cannot hear nothing. Q216. You couldn’t hear nothing. Yeah. Okay. And tell me, why do you think it’s not as serious? Why do you think it was that heat of the moment and it’s not as serious; it’s a misunderstanding? A COMPLAINANT: Because, ah – I don’t know this take so long for this matter. Q217. Yeah. A COMPLAINANT: And, ah, he – at the moment, we both is too angry. Q218. Yeah. A COMPLAINANT: That’s – I feel like we just like a couple, um, argue. Q219. Yeah. A COMPLAINANT: And I call the police, make this matter get, like, so serious. Q220. Yeah. A COMPLAINANT: But for me, l don’t feel like he want to hurt me or – yeah. Q221. Didn’t feel like he wanted to hurt you. A COMPLAINANT: No. Q222. No. Okay. So why did you call police that night? A COMPLAINANT: Just, um, my – my mouth I feel, ‘Oh, it’s so – I’m nervous.’ I’m nervous, and my body – like, ah – (other language spoken) INTERPRETER: Oh, I don’t want to have, like, permanent damage and be defaced, because I thought that might happen. Q223. Okay. Didn’t want to be defaced. Yeah. Okay. How did you – on the 10th of February, what did you tell police happened with your lip? Your cut lip. Do you remember? A COMPLAINANT: No. Q224. No? A COMPLAINANT: I just remember my lie down, get up, and my mouth, it’s – have blood.
Subsequently, she said she couldn’t really remember how the grazing of her skin happened. She just remembered that her lip was split. She did not realise her skin was grazed until she went to hospital (questions 238-248).
In relation to what she told the doctor, she said: “I say he hold my neck and, ah, I couldn’t, like, hear … And that my – my eye kind of… few second I can’t see.”
She then explained why she came into a police station and asked for the charges to be cancelled. She said that it was a couple who were very angry and arguing, and that was it. That was at a time where she still wanted to live together with the accused. She did not think the matter was so serious because it was just a couple having an argument. She also had spoken to Detective Sergeant Tanner, saying that the matter was not too serious, just an angry couple arguing. She had told the officer that she did not want this to bother her life. She also told the officer that, “Yes, he did hold my neck to not – to make me not scream or cry”, and “He did not want to hurt me. He just wanted me to shut up”. She also wanted the police to know that the accused was not a bad person and “he not, like, ah, try to harm me. No. He’s – just at that moment we are both so angry, and that’s why it’s happen” (question 296). She said, “I don’t want every people is waste too much time for this matter” (question 298).
At questions 306-310, she demonstrated how he was holding her. The demonstration indicated that he was standing in front of her and had his arms out, holding her arms at the sides of her body while saying, “Don’t smash the food”. She could not remember whether this was on the ground or whether she was standing up.
The complainant clearly indicated that she was most upset on the evening about the blood in her mouth. This was the trigger for her to call the police. She did not think that the police would take the matter so seriously or that it would go on for such a long time.
It is significant that although the complainant thinks that there has been a misunderstanding and seems bemused at the fact that the incident has been taken so seriously by police, she still, apparently without realising the significance of it, continues to report that the accused had his hand around her neck. The fact that she reports it in passing, without apparently realising its legal or policing significance, is strongly supportive of the reliability of that report.
The difficulty with the first proposition to which the complainant agreed was the use of the expression “never laid a hand on”. This expression was one which was unclear, particularly in circumstances where an interpreter was involved. Further, the question asked was unclear as to whether it was intended to cover the relationship up until the point of the incident, or at any time during the relationship including during the incident.
The second proposition was unclear because it was not clear what any answer would mean in relation to the circumstances of the incident, and it was not clear whether it was intended to contradict any of the evidence that the complainant had given.
In re-examination, counsel for the prosecution clarified these matters. The complainant said that the accused did not hurt her during the incident. However, she said that he did put his hand on her neck during the incident. She said that he did not hurt her when he put his hand on her neck. She was asked what she thought the police might have misunderstood and said, “They thought when I said his hand was on my neck that he would choke me to death but he was just trying to stop me from yelling”. She said there was nothing else that she thought police may have misunderstood.
In relation to seeing the doctor at the hospital, she said that there was an interpreter available on the telephone but not during the whole process. She was not sure whether that interpreter had any difficulties understanding her Mandarin.
He concluded that she had sustained 12 individually identifiable injuries of varying type, including lacerations, abrasions and bruising across multiple body planes including the face, neck, and anterior and posterior chest wall, indicating multiple applications of blunt force. It was not possible to identify the exact causative implement or implements. He thought that the injuries would heal within approximately two weeks but that there may be permanent and long lasting sequelae of her injuries which he set out.
In cross-examination, he accepted that there was a possibility that any of her injuries could have been caused by some mechanism other than by strangulation. That was the case whether they were considered alone or together.
He accepted that he had not taken any steps to check the qualifications of the interpreter, the level of the experience of the interpreter, or any regional differences that might exist in Mandarin between that spoken by the interpreter and the complainant.
He said that there was no petechial bruising on or above the neck, or inside her mouth or ears which might have resulted from strangulation. He did not observe any subconjunctival haemorrhaging in her eyes. He did not observe any coughing, shortness of breath or hoarseness of voice.
He indicated that the statistic that there was no visible injury on up to 50 percent of victims of non-fatal strangulation did not distinguish between those who had been rendered unconscious and those who had not, nor between those who have experienced other symptoms, like tunnel vision and loss of hearing, and those who have not. He said that the absence of injury did not lead him one way or another. He agreed that he could not determine if she had been strangled based upon her injuries.
In relation to the specific symptoms that he had recorded in his report, he said that he could not recall whether they were given in English or interpreted from Mandarin.
It was suggested to him that a substantial amount of force would have to be applied to someone’s neck to render them unconscious for 30 seconds. The doctor disagreed with that, indicating that a very minimal amount of force was required in the right area to render somebody unconscious.
Given the lack of specificity in the conclusions as to the cause of the injuries, the most potentially significant aspect of Dr Thomas’ report is in so far as it records the complaints made by the complainant proximate to the incident. Counsel for the accused initially made an application for a limitation pursuant to s 136 of the Evidence Act 2011 (ACT) in relation to the history given by the complainant to Dr Thomas. Ultimately, submissions made in support of that application were also relied upon in support of the submission that, if no order was made under s 136, the weight which could be given to the history recounted by the complainant was limited in circumstances where the history was recorded with the assistance of an interpreter, and it was unclear which parts of the recorded quotes were given directly by the complainant and which were given by the interpreter. Given that the trial is by judge alone, I do not consider that the evidence might be unfairly prejudicial to the accused or misleading or confusing. I decline to make a limiting order under s 136 but will take into account the submissions when considering the weight that can be given to this evidence.
He said that at home she was quiet, and he was watching the television. He could not recall how long it was between when they arrived home and the incident occurring.
He was asked about the lighting in the room. He accepted that the television must have been on. He said it was pretty light. He was less sure than in the examination in chief that a light was on.
He was asked questions about whether or not he had seen any of the subsequently observed injuries on the complainant’s body. His answers were not defensive and did not involve any indication of an attempt to elaborate upon his actual, limited, memory.
He said that when he was on the couch, he did not ask the complainant why she was upset because he did not want to upset her more. As a result of what he observed in the shopping centre, he thought she would probably get more angry. He just asked if he could continue watching the television.
When the complainant moved to the kitchen, she was shouting. The watermelon was on the benchtop. He saw her smash the watermelon. She was screaming and shouting.
He denied being frustrated but said he was uncomfortable and got up and asked her not to scream or shout. He accepted that he was concerned that neighbours or people in the area would hear.
He said that he could not stop her but could tell her to relax and calm down and not make more mess in the kitchen. He said that she slipped and hit the oven. He accepted that the smashing of the fruit was testing his patience but said he could relax and was always a patient person.
When asked about how the complainant fell, he said he did not see how she hit the oven, but she must have hit the oven.
He denied having followed her into the kitchen area. After she had fallen over, he said she got up pretty quickly and went to the bedroom. He could not remember whether she was still screaming or not.
During the minutes that she was then in the bedroom, he continued watching television. He said that she was screaming that she was going to call the police. He said that she must have been in the bedroom when she called police. He said that he had not physically touched her.
He said that by the time the police arrived they were sitting in the kitchen area. He said that she had stopped screaming when she was in the bedroom.
Finally, a series of propositions were put to him. He denied that there was tension between the couple in the few days before 9 February 2023. He accepted that prior to the incident, he just wanted to watch television. He agreed that he did not want to engage with the complainant. He agreed that the complainant was screaming before the incident and that he was frustrated. He agreed that he wanted the complainant to stop making so much noise at that time of night. He agreed that he wanted to stop her smashing things in the kitchen. He agreed that he got up from the couch, intending to stop the complainant from smashing anything else in the kitchen. He denied that he had grabbed the complainant by the arms or the shoulder. He denied that after she had fallen on the ground, he placed his hand on the front of her neck. He denied that he did so for at least five seconds. He denied that he was responsible for the abrasions on the complainant’s neck, upper arm, and shoulder.
There was no re-examination.
The accused gave evidence in accented English. There were significant pauses before he answered some of the questions. Although such pauses may have been seen as adverse to his credibility, there is also the possibility that this was just the way in which he responded to questions, possibly contributed to by his less than perfect mastery of English and the environment in which he was giving evidence. I therefore did not consider that the manner in which he gave evidence was a matter which tended against the acceptance of his evidence.
For these reasons, I can only place limited weight upon the description of the strangulation or the symptoms arising from it recorded in Dr Thomas’ report. Further, because of the uncertainties relating to interpretation, I do not treat any difference between the scope of the body-worn camera complaints and the complaints recorded in Dr Thomas’ report as undermining the credibility of the complainant.
I also consider it significant that, although the complainant wished that the prosecution be “cancelled”, she always maintained that the accused’s hand had been on her neck. She clearly thought that the police had misunderstood the situation by thinking that she was making a complaint that the accused had attempted to “strangle her to death” – that is, strangle her with the intention of harming her – as distinct from putting his hand around her neck in order to get her to stop shouting and making noise. However, the fact that she considered that the police response was disproportionate to the circumstances, and did not wish it to proceed, only reinforced the credibility of her ongoing statements that the accused had placed his hand around her neck.
The evidence of the accused and his wife was significant. His evidence was given on affirmation, and he exposed himself to cross-examination. His evidence was not substantially dented in cross-examination. In his evidence, he made appropriate concessions and recognised the limits of his own memory. As I have pointed out earlier, I did not consider that the manner in which he gave his evidence was necessarily indicative of unreliability as distinct from operating in a second language.
Having said that, the contrast between his version of events and that of the complainant was stark. His evidence was that at no time during this incident did he have any physical contact with the complainant. Notwithstanding that she had thrown watermelon on the floor and was apparently intending to continue to throw things around and was screaming and shouting, he only approached her, telling her to be quiet. She then moved away from him, and it was at that point that she slipped and fell to the floor before getting up, without assistance, and leaving the room.
The evidence of the accused’s wife was also significant as to his good character and his personal attributes relating to his avoidance of conflict. It is obviously significant that he is a person of good character and that affects both the likelihood of him committing a criminal offence and the assessment of his credibility.
I consider that the most reliable evidence is that which was recorded on the body-worn camera. So far as the fact of the accused’s hand being around the complainant’s neck is concerned, when the body-worn camera footage is considered as a whole, I do not consider that there was any ambiguity or unreliability arising from the complainant’s difficulties with speaking or understanding English. I also consider it to be significant that the complainant maintained her evidence that the accused placed his hand around her neck with the intention of stopping her from screaming and shouting, even in circumstances where she did not understand the significance of that fact and did not wish the charge to proceed. Principally because of those two aspects of the evidence, I reject beyond reasonable doubt the accused’s evidence that he did not touch the complainant. Further, I accept beyond reasonable doubt the complainant’s evidence that the accused put a hand around her neck.
Given the uncertainty expressed at one point in the complainant’s evidence as to whether the accused’s hand was on her neck when she was standing up or after having fallen to the floor, I cannot find beyond reasonable doubt when that occurred. The prosecution case was that it occurred when she was on the ground. That is likely, but not established beyond reasonable doubt. Whether the complainant was standing up or on the floor is not essential for the establishment of the elements of the offence on the indictment or the statutory alternative.
Further, given the absence of a description as to the extent of pressure applied to the complainant’s neck, I cannot find beyond reasonable doubt that any particular level of pressure was applied to the complainant’s neck. The complainant did however describe it as “not … very hard” (question 171).
Given the complainant’s denial in evidence that she was at any stage rendered unconscious, despite some statements on the body-worn camera footage consistent with having been rendered unconscious and the report of unconsciousness recorded in Dr Thomas’ report, I cannot find beyond reasonable doubt that she was rendered unconscious.
The prosecution alleged that a loss of hearing and a loss of vision were also caused by the accused’s hand being on the neck of the complainant and that this was sufficient to render her “insensible”. Some of the evidence in support of that is contained in the statements made in the body-worn camera footage and in the complainant’s report to Dr Thomas.
Three features of the documentation of those symptoms in Dr Thomas’ report cast some doubt on their reliability. First, as indicated earlier, that list included symptoms not otherwise complained of. Second, the list included an allegation of a specific period of unconsciousness in circumstances where the complainant denied any loss of consciousness in her oral evidence. Third, there was an absence of evidence as to the reliability of the interpretation during Dr Thomas’ consultation. In combination, these features give rise to a reasonable doubt about the accuracy of that list as reflecting causally related consequences of the accused’s hand being on the complainant’s neck. In particular, I have what I consider to be a reasonable doubt as to the reports of loss of hearing and interference with vision recorded as “tunnel vision” and “flashes before her eyes” as causal consequences of the accused’s hand on the complainant’s neck. There was some other evidence of these types of symptoms. The body-worn camera footage records the complainant describing some interference with her hearing (“And my ear is like ‘woom woom’, I can’t hear … I can’t hear.”) The evidence in chief interview includes similar statements about not being able to hear (questions 195-197). However, the nature of the complaint and the lack of detail means that it is insufficient to establish beyond reasonable doubt causally related symptoms of pressure on the complainant’s neck. Assuming it occurred while the complainant was on the ground, other potential sources of interference with her recalled capacity to hear include the fall to the ground itself and her extreme state of agitation. Insofar as vision is concerned, she agreed in the evidence in chief interview that she had told police that her vision “went blurry”. Once again, the relationship with the holding of the neck was not established beyond reasonable doubt and occurred in the context of a fall to the ground for which the accused was not directly responsible. The nature of the complaint and its connection with the accused’s hand being around the complainant’s neck was not clearly established. As a result, I have what I consider to be a reasonable doubt as to the two symptoms that are said to give rise to insensibility, namely, the loss of hearing and loss of vision.
These findings mean that I cannot be satisfied beyond reasonable doubt that the complainant was choked or strangled “so as to render that person insensible or unconscious”. Given that this is an essential element of the offence under s 27(3)(a) of the Crimes Act, I am not satisfied that this offence is proved beyond reasonable doubt.
In those circumstances, it is not essential to examine the precise content of the word “insensible”. The parties proceeded on the basis that this was an ordinary English word which a jury would be directed to apply for itself. Notwithstanding that this may be the legally correct position to adopt, the word is not commonly used and has the potential to be uncertain in its application by a jury. For the reasons I have given, it is not necessary to grapple with that issue in this case.
More significantly, having regard to the failure to establish beyond reasonable doubt the factual preconditions for the establishment of an element of the offence, it is unnecessary to address the question of law that would otherwise need to have been determined, namely, whether, in order to establish the offence, the accused needs to intend only the act of choking or strangling, or whether it is also necessary to establish an intention to render the person unconscious or insensible. The parties made detailed and helpful submissions about this issue (written submissions of counsel for the accused dated 11 June 2024, transcript 117-121, 131-137) but, having regard to the factual conclusions that I have reached, it is undesirable to attempt to resolve the issue in this case. I only observe that it is a significant issue which should not arise in a routinely applied statutory provision important in domestic violence cases. The resolution of the uncertainty as to the physical and fault elements of the provision would be eliminated if the legislature had completed the important task of statute revision which it set for itself in 2002 when it enacted the Criminal Code. It is most unfortunate that this has not occurred.
That leaves the statutory alternative under s 28(2)(a). The elements of that offence are outlined earlier. It is important to note that, for the purposes of the first element, “choke” and “strangle” are defined to include applying pressure to any extent to a person’s neck. Counsel for the accused submitted that the element was not established because there was no evidence that “pressure” was applied to the complainant’s neck. In making that submission, he impliedly drew a distinction between the application of “pressure” and the mere touching or holding of the complainant’s neck. I do not accept that this is a distinction permitted by the definition of “choke” or “strangle”. Any touching or holding of the neck involves the application of “pressure, to any extent”. It is the application of pressure which gives rise to the sensation of being touched or held. That means that there is no room for an argument that distinguishes between mere touching or holding on the one hand and the application of “pressure” on the other. The consequence is that placing a hand around another person’s neck in a way that touches their neck may constitute the offence. It must be remembered that, in order for the offence to be established, the touching must be both intentional and unlawful. I have found beyond reasonable doubt that the accused placed his hand around the complainant’s neck so as to touch or hold her neck. I have not found beyond reasonable doubt that any particular level of pressure was applied to the complainant’s neck except that it was “not hard”. So long as the conduct was both intentional and unlawful, the offence is established. In my view, the conduct has been proved beyond reasonable doubt to be intentional, reflecting the accused’s intention to cause the complainant to stop screaming and shouting. Further, I am satisfied beyond reasonable doubt that it was unlawful in that there was no consent on the part of the complainant and no evidence of another lawful reason (such as self-defence or the conduct of a medical procedure) that would give rise to a doubt as to its unlawfulness.
For these reasons, the accused is guilty of the statutory alternative offence.
The combination of circumstances is favourable to the accused. However, it is not, in my view, sufficient to warrant the making of a non-conviction order. That is principally because of the seriousness of the offence, having regard to its maximum penalty and the importance of general deterrence in the context of family violence offending. The legislature has made a deliberate decision to provide an extended definition of choking and strangling. The offence is an important one because it protects people, usually women, from acts, usually committed by men, which threaten or actually involve a real risk of harm to a vulnerable area of the body. It is in that context which the extended definition has been enacted. It is in that context which the offending in the present case occurred.
I do not consider that the circumstances are so extenuating as to warrant, in combination with the other factors, the making of a s 17 order. I consider that the possible consequences for overseas travel imposed by the governments of other countries do not warrant a departure from the approach that I consider would otherwise be appropriate.
I do, however, consider that the matter may be appropriately dealt with by a conviction and a good behaviour order. Orders
The order of the Court is: 1. On the statutory alternative count that the accused intentionally and unlawfully choked, suffocated, or strangled [the complainant], contrary to s 28(2)(a) of the Crimes Act 1900 (ACT), the accused is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months.