GS v R; Director of Public Prosecutions

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Commissioner of Taxation v Shell Energy Holdings Australia Limited [2022] FCAFC 2 Dadley v R [2021] NSWCCA 267 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v R [2018] NSWCCA 2 Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 Koloamatangi v R [2020] NSWCCA 52; (2020) 282 A Crim R 160 Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v A2 (2019) 269 CLR 507; [2019] HCA 35 R v AJB [2019] QDC 169 R v Cook (No 3) [2005] ACTSC 126 R v Green (No 3) [2019] ACTSC 96; (2019) 344 FLR 324 R v HBZ (2020) 4 QR 171; [2020] QCA 73 R v LK (2010) 241 CLR 177; [2010] HCA 17 R v PL [2009] NSWCCA 256; (2009) 261 ALR 365 R v XHR [2012] NSWCCA 247 Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; (2020) 247 LGERA 277 Scott v Northern Territory of Australia [2005] NTSC 29 TK v The Queen (2009) 74 NSWLR 299; [2009] NSWCCA 151 Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Texts Cited: Crimes Legislation Amendment Bill 2018 (NSW) Margaret Stark (ed), Clinical Forensic Medicine: A Physician's Guide (4th ed, 2020, Springer) New South Wales, Domestic Violence Death Review Team, Report 2015-2017, (2017) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018 Queensland Legislative Assembly, Parliamentary Debates (Hansard), 2 December 2015 Rory Kelly and David Ormerod, "Non-fatal strangulation and suffocation" (2021) 7 Criminal Law Review 532 Susan Edwards, "The strangulation of female partners" (2015) 12 Criminal Law Review 949 Category: Principal judgment Parties: GS v R: GS (Appellant) Crown (Respondent)

Director of Public Prosecutions (NSW) v GS: Director of Public Prosecutions (NSW) (Appellant) GS (Respondent) Representation: Counsel: TD Anderson SC (GS) B Baker (Crown)

Solicitors: Naomi Steinberg Lawyers (GS) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2019/19370 Publication restriction: Pursuant to s 111(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the publication of any matter identifying or having the effect of identifying the respondent to an appeal under s 107 of the Act is prohibited unless authorised by order of this Court. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2021] NSWDC 248 Date of Decision: 10 June 2021 Before: Abadee DCJ File Number(s): 2019/19370

Judgment

1. PAYNE JA: On 7 June 2021, GS (who is identified by his initials in order to comply with s 111(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW)) was indicted before Abadee DCJ (the trial judge) in the District Court sitting at Penrith on the following charges relating to his former partner, JC [1] : [2] "[Count 1: That he] on 6 January 2019, at Leumeah in the State of New South Wales, detained [JC] without her consent, with the intention of obtaining an advantage, namely, psychological advantage, and at the time of detaining actual bodily harm was occasioned to [JC]. S 86(2)(b) Crimes Act 1900 … [Count 2: That he] on 6 January 2019, at Leumeah in the State of New South Wales, intentionally choked [JC], without her consent. S 37(1A) Crimes Act 1900"
2. On 10 June 2021, his Honour directed the jury to find GS not guilty of count 2. This is the subject of the appeal brought by the Director of Public Prosecutions (the Director) in this Court. On 11 June 2021, the jury returned a verdict of not guilty in respect of count 1.
3. On 24 June 2021, at the urging of both parties, the trial judge dealt with four back up or related charges which were before the Court pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW): "Sequence 1: That he on 6 January 2019, at Leumeah in the State of New South Wales, was armed with a weapon, namely, a knife, with intent to commit an indictable offence, namely, assault. (s 144(1)(a) of the Crimes Act 1900) Sequence 2: That he on 6 January 2019, at Leumeah in the State of New South Wales, did intentionally or recklessly damage property, namely, a handbag and eye glasses the property of JC. (s 195(1)(a) of the Crimes Act 1900) Sequence 3: That he on 6 January 2019, at Leumeah in the State of New South Wales, did intimidate JC, with the intention of causing the said JC to fear physical or mental harm. (s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007) Sequence 4: That he on 6 January 2019, at Leumeah in the State of New South Wales, did assault JC thereby occasioning actual bodily harm to her. (s 59(1) of the Crimes Act 1900)"
4. As to sequence 4, the Crown submitted that the choking was not part of the conduct particularised by the Crown as constituting the assault occasioning actual bodily harm. The trial judge referred to each charge as a back up charge. The s 166 certificate identified sequences 1, 3 and 4 as back up charges and sequence 2 as a related charge.

The appeals

1. The Director appeals against the acquittal of GS by jury at the direction of the trial judge on one count of intentionally choking without consent contrary to s 37(1A) of the Crimes Act 1900 (NSW) (count 2).
2. GS seeks leave to appeal against his conviction and sentence for assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (sequence 4) on the following grounds: "Ground 1: His Honour's verdict in convicting the applicant for the offence of assault occasioning actual bodily harm is inconsistent with the verdicts entered by the jury and by his Honour in relation to each of the other counts. Ground 2: The sentence by his Honour imposed was manifestly excessive."

Relevant facts

1. GS and JC were in an intimate relationship. At the time of the events giving rise to these appeals, GS was 38 years old and JC 30 years old. GS and JC lived together with GS' father at the father's house in Leumeah. GS and JC have a child together, who has lived with JC's aunt since he was 15 months old.
2. The charges faced by GS related to conduct occurring on Sunday 6 January 2019. JC's evidence was that GS returned home at approximately 5am, woke her up and commenced verbally and physically abusing her. JC gave evidence that over the course of the day he "pretty much just punched [her] where ever he could", including on the left side of her face, her chest, the top of her left leg, her left forearm, the top of her hands and her back. This happened in "patches", whenever GS lost his temper. JC gave evidence that he threw a water bottle at her shin, an Xbox controller at her back, and a lighter at her neck. Photographs depicting the bruising were admitted into evidence in the trial and marked "Exhibit C". JC gave evidence that she had not had any bruising before the events she described.
3. JC gave evidence that at about 8am or 9am, GS told her to make him a coffee and then followed her into the kitchen. There he grabbed a knife, which he kept with him for the whole day. He threatened her with it "in case" she tried to run and told her that if she kept lying, he would "cut [her] throat" (sequence 1: armed with intent). It was alleged that GS stabbed the mattress and JC's handbag, causing her glasses to crack (sequence 2: destroy or damage property). It was alleged that he took her phone from her and followed her each time that she needed to go to the bathroom (sequence 3: intimidation). She gave evidence that she felt like she could not leave the house and thought that GS would have killed her if she tried (count 1: detain for advantage).
4. Count 2 in the indictment (intentional choking) concerned the first physical assault allegedly committed against JC. JC gave evidence that GS "tried to strangle" her. She said that he jumped on top of her while she was sitting on the bed. He grabbed her by the throat with two hands and pushed her down into a lying position. JC said that while GS had two hands around her throat he said "you're gonna die". His hands remained around her throat for about a minute. She eventually slipped her head out of GS' hands. GS then had his arms around her head, before eventually letting her go. The assault caused JC's neck to be "really sore" when she moved it, which lasted for a couple of days. She gave evidence that there was bruising on her neck. Despite the violence of the grabbing around the throat such that JC was pushed into a lying position, JC did not specifically say that her breathing was impeded by the assault or that blood flow to her brain had been constricted. As will become apparent, whether proof of an impediment to breathing or blood flow as a consequence of the assault she suffered was a necessary element of the offence charged in count 2 of the indictment is the crucial question on the Director's appeal.

Director's appeal - s 107 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. The Director's appeal is brought pursuant to s 107 of the Crimes (Appeal and Review) Act, which relevantly provides: 107 Directed jury acquittals or acquittals in trials without juries (1) This section applies to the acquittal of a person - (a) by a jury at the direction of the trial Judge … … (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone. … (5) The Court of Criminal Appeal may affirm or quash the acquittal appealed against. (6) If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 2013) order the detention or return to custody of the accused person in connection with the new trial. (7) If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the court conducting the new trial to do so. …
2. At issue in the appeal is the meaning of the term "intentionally chokes" in the context of s 37(1A) of the Crimes Act: 37 Choking, suffocation and strangulation (1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person's consent. Maximum penalty - imprisonment for 5 years. (1) A person is guilty of an offence if the person - (a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and (b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance. Maximum penalty - imprisonment for 10 years. (2) A person is guilty of an offence if the person - (a) chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and (b) does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence. Maximum penalty - imprisonment for 25 years. (3) In this section - another indictable offence means an indictable offence other than an offence against this section.
3. The terms "chokes", "suffocates" and "strangles" are not defined in the Crimes Act. There is no appellate authority in NSW that considers the proper construction of the phrase "intentionally chokes" in s 37(1A).

Directed verdict in respect of count 2

1. On 9 June 2021, after the close of GS' case, defence counsel made an application for a directed verdict of not guilty in respect of count 2 on the basis that the evidence was not capable of establishing that GS choked JC, within the meaning of s 37(1A) of the Crimes Act. It was submitted that the trial judge should adopt the definition of "chokes" that was preferred by Loukas-Karlsson J in R v Green (No 3) [2019] ACTSC 96; (2019) 344 FLR 324 (in the context of s 28(2)(a) of the Crimes Act 1900 (ACT)) and by Coker DCJ in R v AJB [2019] QDC 169 (in the context of s 315A(1) of the Criminal Code (Qld)). In those cases, their Honours held that the word "chokes" refers to the stopping of the breath. In the alternative, defence counsel submitted that choking at least requires a victim's breath to be affected, and there was no evidence that JC's breathing was affected.
2. The Crown opposed the application and submitted that the pressing of someone's hands against the throat or applying manual pressure on and around a person's neck or throat is sufficient to constitute the offence.
3. In a judgment delivered on 10 June 2021, the trial judge correctly noted that a verdict of not guilty may only be directed if "there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty": Doney v The Queen (1990) 171 CLR 207 at 215; [1990] HCA 51; see also R v LK (2010) 241 CLR 177; [2010] HCA 17 at [29]. Having regard to the dictionary definitions of choke, strangle and suffocate (but noting that those definitions are not determinative), his Honour held that the element of choking required at least a hindering or restricting of a person's breathing.
4. The trial judge considered that the word "chokes" should be given the same meaning in each of s 37(1A), s 37(1) and s 37(2): sub-sections which create three separate offences. His Honour had regard to the second reading speech to the Crimes Legislation Amendment Bill 2018 (NSW) (which introduced the relevant offence under sub-s (1A)) and concluded that: "[42] … a construction which embraces restriction or hindrance to breathing, which may also, but does not necessarily, extend to cessation of breathing, is better suited to promote the legislative object or purpose, which is to deter the perpetrators of domestic violence from scaring, coercing or controlling the victim. …"

Submissions on the Director's appeal

1. The Director contended that the element of "choking" is satisfied by the application of manual pressure to the neck or, in the alternative, a hindering or restricting of the blood supply to or from the head.
2. As the appeal concerns the proper construction of s 37(1A) of the Crimes Act and the actus reus of the offences provided for under that section, it puts at issue a "legal proposition which is a distinct and separate step in the reasoning process" and accordingly constitutes a question of law alone within the meaning of s 107 of the Crimes (Appeal and Review) Act: R v PL [2009] NSWCCA 256; (2009) 261 ALR 365 at [27]; R v XHR [2012] NSWCCA 247 at [22]; Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147 at [34]-[35]. It was common ground that the Director's appeal thus involves a question of law alone.
3. The Director submitted that this Court should quash the verdict of acquittal in respect of count 2 and order a new trial pursuant to ss 107(5) and 107(6) of the Crimes (Appeal and Review) Act.
4. The Director made two primary submissions as to the construction of the word "chokes" in the context of s 37(1A): 1. the word "chokes" in s 37(1A) is a word of ordinary, rather than legal meaning, and it would be open to a jury to determine that GS choked JC when he grabbed her with both hands around the neck and forced her down (thereby placing manual pressure on or around her throat or neck); and 2. alternatively, the word "chokes" in s 37(1A) may be satisfied where there is a restriction of the blood flow to or from the neck, even where there is no evidence of a restriction of the complainant's breathing.
5. GS submitted that the mere application of manual pressure to any part of the neck of another person does not constitute an offence within s 37(1A). That construction was said to find no support in either the medical or legal approach or the second reading speech. It was submitted that the meaning of "choke" could be understood in ordinary language, but the word could not be "stretched" to fit a legislative goal. In oral submissions, counsel for GS, Mr Anderson SC, drew attention to the consequences of the Crown's broader submission, that placing a hand on the back of the neck of another person could amount to "choking". This is a topic to which I return.
6. GS relied heavily upon the decision of the Queensland Court of Appeal in R v HBZ (2020) 4 QR 171; [2020] QCA 73, where Mullins JA (with whom McMurdo JA and Boddice J agreed) dealt with a Queensland provision in similar terms to s 37(1A). Her Honour said at [57]: "[57] With the benefit of the approach of the majority judges in A2, the interpretation of 'chokes' in s 315A [of the Criminal Code (Qld)] in context and in light of the extrinsic material does not result in any ambiguity. In order to achieve the purpose of the introduction of this offence, 'chokes' must be construed as the act of the perpetrator that hinders or restricts the breathing of the victim and does not require proof that breathing was completely stopped, although the hindering or restriction of the breathing would encompass the stopping of the breathing. The act of choking will not be proved, unless there is some detrimental effect on the breathing of the victim, because otherwise it would not constitute the act of choking. Even if the restriction of the breathing, as a result of the action of choking the victim, is of short duration, without any lasting injury and does not result in a complete stoppage of the breath of the victim, that will be sufficient, as the offence is directed at deterring that type of conduct from occurring at all."

Legal principles relevant to the question of construction

1. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], the plurality emphasised that the task of statutory construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: see also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].
2. Determination of the purpose of a statute or of a particular provision may be not only based on an express statement of purpose in the statute itself but also by inference from its text and structure and, where appropriate, by reference to extrinsic materials. However, as Mr Anderson SC correctly emphasised, this process does not involve a search for what those members of the legislature who promoted or passed the law had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26].
3. The relevant principles in the context of a criminal statute were further explained by Kiefel CJ and Keane J in R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [32]-[33] and [37]: "[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 'Mischief' is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. … [37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, 'if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance'. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred." (Footnotes omitted.)

Text of the provision

1. As to language used, there is no definition of "intentionally chokes" in the Crimes Act and it was common ground that the meaning of the term had not been considered in NSW (with the exception of the decision of the trial judge in this case).
2. There is no accepted legal meaning of the term "chokes". An offence, part of which consists of "choking, suffocation and strangulation" found at various times in various criminal statutes in Australia, including NSW, is apparently derived from the Offences against the Person Act 1861 (UK). There do not appear to be any cases in England and Wales in which the meaning of the term "choke" has been considered: see Rory Kelly and David Ormerod, "Non-fatal strangulation and suffocation" (2021) 7 Criminal Law Review 532, where the authors lament at 541 that "[t]here is no definition of the terms 'strangulation', 'suffocation' or 'choking' in interpreting s 21 of the 1861 Act that could be relied on". This may be because charges under s 21 rarely form part of the indictment, with the charges levelled against the accused being limited only to the further indictable offence enabled by the choking: see Susan Edwards, "The strangulation of female partners" (2015) 12 Criminal Law Review 949 at 953. [3]
3. The word "chokes" has a variety of meanings, depending on the context. It may be used in a context which has nothing whatever to do with the application of pressure to the neck. That meaning (a child choking on a small toy, an elderly patient choking on food) is no doubt of primary importance in a medical context but sheds little light on the meaning of the term here. The word "chokes" is capable of meaning applying pressure to the neck such that the breathing of the person being choked is impeded. The term "chokes" is also capable of being understood as encompassing application of pressure to the neck restricting blood flow but not affecting the breath, as explained by Angel J in Scott v Northern Territory of Australia [2005] NTSC 29, which his Honour described as the effect of a "carotid sleeper hold". In R v Cook (No 3) [2005] ACTSC 126 Crispin J, summarised expert evidence to the effect that a person can be rendered unconscious by manual pressure to the neck in a manner which does not affect breathing. Depending on context, that too may be understood as "choking". It is true, however, as GS submitted, that placing a hand on the back of the neck of another person, in a way that does not apply sufficient pressure capable of affecting in any way the breath or blood flow of that person, is not a meaning of the term "intentionally chokes" that emerges from a consideration of the text itself.

Context of the provision

1. As to context, I have concluded that the fact that the word "chokes" has been construed by other courts in other contexts is unlikely, of itself, to be determinative of the correct construction of the term as it appears in s 37(1A). As Allsop CJ recently pointed out in a very different context in Commissioner of Taxation v Shell Energy Holdings Australia Limited [2022] FCAFC 2: "[3] The drawing of different conclusions about the meaning of words in their context by different judges does not necessarily lead to a conclusion that different judicial methods were used by those judges. It may only reflect how meaning, in context and taking account of statutory purpose, strikes the minds and judgements of different people differently. Such inheres as an incident of the search for and expression of meaning."
2. Section 37(1A) is a broadly drafted offence provision that covers intentionally choking, strangling and suffocating a person. The critical matter of context in the NSW Crimes Act, which makes it quite different from the ACT and Queensland Acts relied upon by GS, is the contrast with s 37(1) and s 37(2). Those sub-sections create offences that focus on the consequences of the acts of choking, strangulation or suffocation. Section 37(1A) was added after ss 37(1) and (2) to address a lacuna in the law. The context indicates that s 37(1A) deals with conduct encompassing something less than choking which fits within ss 37(1) and (2).

Purpose of the provision

1. As to the purpose of the provision, the Crimes Legislation Amendment Bill 2018 (NSW) evinces a clear Parliamentary intention in enacting s 37(1A) to deter controlling behaviours by perpetrators of family and domestic violence. The neck, or at least that part of the neck that allows the flow of oxygen to the cardio-vascular system and to and from the brain, is a vulnerable part of the body. In the second reading speech introducing s 37(1A) the Minister said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018 at 2): "The new offence introduced by the Crimes Legislation Amendment Bill 2018 … is specifically formulated to address choking, suffocation and strangulation without consent, including where committed by perpetrators of domestic violence in order to scare, coerce or control the victim. The existing offences of choking, suffocating or strangling in section 37 of the Crimes Act will continue to apply. The new offence will adopt the terms 'chokes, suffocates or strangles' as used in the existing offences. These terms are not defined in the Crimes Act. However, applying their ordinary meaning, they are understood to capture a broad range of conduct including, for example, restricting breathing and/or blood flow into or out of the head, for example by placing manual pressure on or around a person's neck or throat, tying an object on or around a person's neck or pressing a person against another object that inhibits air or blood flow. The Government expects that the amendment will facilitate the prosecution of more offences of choking, suffocation and strangulation, especially where it occurs in the context of domestic violence. The Government is committed to strengthening criminal justice responses to domestic violence. Domestic violence is a scourge of our society and we have to adopt a zero-tolerance approach if we are to make meaningful change. This important amendment will help hold perpetrators to account and keep victims safe."
2. The relevant context and the structure of s 37 as a whole, indicates that the words "chokes", "suffocates" and "strangles" identify the conduct or actus reus for each offence in a way quite separate to the consequences identified in the much more serious offences in s 37(1) and s 37(2). In my view, the absence of a consequence identified in s 37(1A) is a contextual indication that the conduct of "intentional choking" does not require separate proof of a consequence of the kind found in ss 37(1) and (2), namely that the victim is rendered unconscious, insensible or incapable of resistance.

Relevant authorities dealing with "choking"

1. Both parties referred to the decision of Loukas-Karlsson J in R v Green (No 3) where her Honour concluded that "the relevant element [of 'choking'] is constituted by the stopping of the breath." Both parties agreed that this construction was wrong and should not be followed. I agree. Respectfully, this construction finds no support in the text, context and purpose of the section there under consideration. I note that the result in Green (No 3) was reversed by the legislature immediately afterwards. [4]
2. Mr Anderson SC did, however, place considerable reliance upon the decision of the Queensland Court of Appeal in HBZ. Strictly speaking, the part of the decision relied upon by Mr Anderson SC was obiter. This is because the trial judge in HBZ directed the jury that unlawful choking within the meaning of s 315A of the Criminal Code (Qld) required proof that the breathing of the victim was impacted by reason of the pressure applied to the neck. The appellant sought to call in aid the construction of the ACT provision preferred in Green (No 3). The Queensland Court of Appeal rejected the construction of "choked" given in that case. The Court held that the primary judge did not misdirect the jury by describing choking as "to hinder or stop the breathing of a person". This is the ratio of HBZ. The conclusion of the Queensland Court of Appeal that the hindering of a person's breath was required to be proved to constitute an offence under s 315A was, however, closely considered dicta. If I had formed the view that the relevant text, context and purpose of the Queensland Act was relevantly indistinguishable from the NSW Act I would have followed that closely considered dicta. I have decided, however, that the text, context and purpose of s 37(1A) is sufficiently different from the Queensland provision such that a different conclusion arises.
3. As to the text, whilst there are similar words used, the Queensland Criminal Code proscribes two offences where the actus reus is to "choke, suffocate, or strangle". These are: 315 Disabling in order to commit indictable offence Any person who, by any means calculated to choke, suffocate, or strangle, and with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, renders or attempts to render any person incapable of resistance, is guilty of a crime, and is liable to imprisonment for life. 315A Choking, suffocation or strangulation in a domestic setting (1) A person commits a crime if - (a) the person unlawfully chokes, suffocates or strangles another person, without the other person's consent; and (b) either - (i) the person is in a domestic relationship with the other person; or (ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012. Maximum penalty - 7 years imprisonment. (2) An assault is not an element of an offence against subsection (1).

Conclusion about construction of s 37(1A)

1. It will be recalled that the trial judge's construction of s 37(1A) required "pressure that, at least, results in a restriction in the victim's breathing" (at [53]).
2. A striking feature of this case is that both parties agree that the trial judge's construction of the section was incorrect. Mr Anderson SC accepted that a restriction of blood flow effected by pressure on the neck, even without proof of an effect on breathing, would be sufficient to constitute an offence under s 37(1A). That concession, which was correctly made, is a sufficient basis to distinguish the construction of the provision advanced by the Queensland Court of Appeal in HBZ. This Court, being seized with a question of law only, should answer that question of construction that both parties accept was incorrectly determined by the trial judge.
3. In my view, the term "intentionally chokes" should not be ascribed a narrow meaning, let alone one drawn from a medical dictionary. As I have said, the relevant context strongly suggests that s 37(1A) is a broad offence which is intended to protect victims of domestic violence from controlling behaviours. Section 37(1A) was expressly intended to fill a gap in the legislation where, as a result of "intentional choking", the victim was rendered unconscious, insensible or incapable of resistance. For this reason, I was initially attracted to the conclusion that to "intentionally choke" a person within the meaning of s 37(1A), any pressure on the neck, however slight and wherever applied or directed, would be sufficient to constitute an offence.
4. I have concluded, however, that the text, context and purpose of s 37(1A), does not permit a conclusion that placing a hand on the back of the neck of another person, in a way that does not apply sufficient pressure to be capable of affecting in any way the breath or blood flow to or from the head of that person, amounts to "intentionally choking" a person.
5. It is correct that in describing the purpose of the provision the Attorney General referred to conduct including restricting breathing and/or blood flow into or out of the head as falling within the section. I accept that the examples given were not intended necessarily to be comprehensive (Hansard at 2): "the terms 'chokes, suffocates or strangles' … are understood to capture a broad range of conduct including, for example, restricting breathing and/or blood flow into or out of the head, for example by placing manual pressure on or around a person's neck or throat, tying an object on or around a person's neck or pressing a person against another object that inhibits air or blood flow."

Jurisdiction

1. As the trial judge was exercising jurisdiction under Div 7 of Pt 3 of Ch 3 of the Criminal Procedure Act when he convicted GS of sequence 4, GS' appeal is an appeal under s 5AD of the Criminal Appeal Act 1912 (NSW). Section 5AD(3) provides: 5AD Appeals as to related or back up summary offences in criminal cases dealt with by the Supreme Court or the District Court … (3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct unless - (a) the judge considers that the appeal should be dealt with by the full court and notifies the Chief Justice accordingly, or (b) an appeal is lodged under this Act in relation to the related indictable offence.
2. The Director's appeal in relation to the related indictable offence (count 2) is not an appeal "lodged under this Act" because it is an appeal pursuant to s 107 of the Crimes (Appeal and Review) Act. GS' appeal must be determined by a single judge of this Court, unless that judge considers it appropriate for the appeal to be dealt with by the full court.
3. On 8 February 2022, the Chief Justice directed that I would hear the s 5AD appeal and noted that if I considered the matter should be dealt with by a full court, the Court as presently constituted would hear the matter and the balance of the appeals and applications involving GS. At the hearing of the appeal on 9 February 2022, I made an order under s 5AD(3) that GS' appeal be determined by the full court for the reason that the consideration of the appropriate orders to be made in that appeal may be affected by the orders made in the Director's appeal.

Ground 1: inconsistent verdicts

1. GS submitted that the conviction on sequence 4 should be quashed and an acquittal entered on the basis that: 1. the trial judge's finding in respect of sequence 4 is inconsistent with the jury's verdicts; and 2. the trial judge's finding of guilt in respect of sequence 4 is inconsistent with the trial judge's findings that the applicant was not guilty of sequences 1-3.
2. It was submitted that the Crown case relied largely on the acceptance of JC as a witness of truth. His Honour observed: "Mindful as I am of the jury's acquittal of the aggravated kidnapping charge and the avoidance of findings inconsistent with that acquittal by the jury, the only direct evidence for the accused brandishing of the knife as a threatening implement and his actual use of it by stabbing the mattress in the bedroom and the handbag and other acts of intimidation, is from the complainant … It is implicit in the jury's verdict that it harbored doubt or some doubt about the credibility or reliability of the evidence of the complainant."
3. His Honour noted that the jury was not convinced about JC's "background" evidence comprising of the incident at Leumeah railway station and the complainant's evidence about her forced attendance at the Minto Fruit Market. In light of JC's history of self-harm and an earlier suicide attempt, his Honour held that there was a reasonable possibility that JC was giving indications that she intended to jump on the track at the railway station to kill herself and that that might explain why GS was seen to be trying to restrain her.
4. In acquitting GS of sequences 1, 2 and 3, his Honour relied on the evidence from Mr Raffie about JC's appearance at the fruit market as casting doubt upon the reliability of JC's evidence that she was taken there against her will. His Honour noted that there was an absence of physical evidence supporting JC's evidence about sequences 1 and 2. In particular, there was no evidence of a knife with GS' fingerprints on it, or that the knife had been used to stab the mattress or JC's handbag. The trial judge considered that there was "no convincing explanation by police at the trial as to the impracticability or impossibility of such investigative acts taking place" after the report had been made to police on 7 January 2019.
5. GS submitted that the jury may have had similar reservations about relying on JC's version of events in the absence of corroborative evidence when acquitting GS on count 1.

Consideration of ground 1

1. An appeal under s 5AD is dealt with in the same way as an appeal under s 5AA of the Criminal Appeal Act: s 5AD(1). It is an appeal "in the strict sense": Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 at [12], citing Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96]. GS can only succeed by establishing that the trial judge committed an error of law or applied the wrong principle in his fact-finding exercise: Landmark at [12].
2. Because the trial judge gave reasons for his decision, any inquiry into whether the judge erred in finding facts will not be answered by a consideration of whether there is a "rational explanation" for the acquittals or for reconciling the verdicts. The question in an appeal under s 5AD is whether it was open to the trial judge to make the factual findings that were made, in view of the reasons that were given by the trial judge. That is, the task is quite different than that engaged in by this Court when considering an unreasonable verdict.
3. In any event, the contention that the trial judge's verdict was inconsistent with the jury's verdicts should be rejected.
4. The trial judge made a finding that JC was a credible witness. It was open to his Honour to so find. The trial judge was not obliged to find that the fruit market incident cast doubt upon the reliability of JC's evidence. Mr Raffie's evidence did not really shed any light on JC's evidence, and the trial judge did not find, nor was he obliged to find, that JC's evidence was unreliable on the basis of this evidence. In concluding that he was not satisfied beyond reasonable doubt of the applicant's guilt in relation to the first three sequences, the trial judge was most persuaded by the absence of physical evidence corroborating JC's account, in particular of the damage to the mattress and her handbag, and the absence of a "convincing explanation" for the police's failure to investigate those matters.
5. The trial judge took into account his Markuleski direction when considering whether sequence 4 was established and took into account JC's evidence, the photographic evidence of bruising, and the handwritten evidence in which JC acknowledged that she had told GS lies during the course of their relationship. Those admitted lies of JC having "cheated" on GS were hardly material to the violence perpetrated upon her, which forms the subject of this charge.

Ground 2: manifest excess

1. GS submitted that the trial judge's sentencing discretion miscarried on the basis that the 20 month sentence and 15 month head sentence for an offence contrary to s 59(1) of the Crimes Act was "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
2. It was submitted that the offence involved a series of relatively small bruises which did not appear on photographs 2, 4 and 5 of Exhibit C; there was no permanent or temporary scarring; JC did not require any medical attention; the injuries occurred without the use of a weapon; and, as the trial judge found, the assault was not premeditated but impulsive.
3. His Honour found that GS' conduct was "above the mid-range or about the mid-range" for the type of offending. GS was 39 years of age at the time of sentencing and had been convicted of assault and domestic violence offences in the past, the most recent of which was in 2006.
4. GS relied upon a psychiatric report dated 30 September 2019 (Exhibit 1) and a hospital note relating to an assault on GS while in gaol and treatment (Exhibit 2). The psychiatric report provided evidence that GS had been the victim of sexual abuse at age 15 and that he had had six admissions to psychiatric facilities for self-harm during the course of his life. He was prescribed antipsychotic and anti-depressant medications and was suffering from "very significant mental health issues" involving a personality disorder, post-traumatic stress disorder, substance abuse disorder and possibly a chronic psychotic disorder.
5. The trial judge rejected the possibility of any link between the diagnosed conditions and the offence and found that "to the extent [the mental health issues] had a role to play, they suggest that the sentencing consideration usually recorded to protecting the community is correspondingly elevated." His Honour found that GS' prospects of rehabilitation were poor and the subjective case was weak.
6. GS submitted that, notwithstanding the trial judge's findings, no reasonable exercise of the sentencing discretion occurred having regard to the objective and subjective circumstances. Although the term of imprisonment has been served, GS seeks to have the sentence reduced to properly reflect the seriousness of his offending.
7. GS' sentence appeal is also an appeal in the strict sense and he must demonstrate an error of principle or a mistake of fact or law whereby his Honour's sentencing discretion miscarried, or that the sentence was so excessive that the exercise of the discretion must have been affected by error: Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280 at [5].

Consideration of ground 2

1. In determining whether a sentence is manifestly excessive, it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; 3. it is not to the point that this Court might have exercised the sentencing discretion differently, 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (RA Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing); Hughes v R [2018] NSWCCA 2 (Payne JA, RA Hulme J and Garling J).
2. The offence committed by GS was a domestic violence offence which caused not insignificant bruising to his partner. The trial judge made unchallenged findings that GS' prospects of rehabilitation were poor and that his subjective case was weak.
3. The trial judge rejected the link between GS' post-traumatic stress disorder, personality disorder and substance abuse disorder and the offending and declined to make a finding of reduced moral culpability. There was no appeal from that finding.
4. There was no error of principle in the sentence and the sentence imposed was not manifestly excessive.
5. Ground 2 should be dismissed.

Conclusion and orders

1. For the foregoing reasons I would allow the Director's appeal and reject the appeal against conviction and sentence by GS.
2. On the contingent hypothesis noted at [65] above, there remains the question of relief. The parties were granted leave to file written submissions after the hearing addressing: 1. whether, if the Court accepts the Crown's submissions concerning the correct construction of s 37(1A), the Court should nonetheless dismiss the Director's appeal on the basis that a plea in bar arises from GS' conviction for assault occasioning actual bodily harm; and 2. whether the fact that the Crown (with GS) requested that the District Court determine the assault occasioning actual bodily harm offence is relevant to that question.
3. Both parties submitted that GS' conviction for assault occasioning actual bodily harm does not give rise to a plea in bar. A plea in bar will only be available where the elements of the offences charged are identical, or where the elements of one offence are wholly included in the other: see Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30.
4. The Crown submitted that the Court should quash the acquittal and order a re-trial because any sentence that would be imposed for the offence of choking would be significantly greater than that imposed for the offence of assault occasioning actual bodily harm. The Crown acknowledged the discretion available to the Court to allow the appeal and decline to remit the offender for a further trial.
5. Having regard to the matters set out by McClellan CJ at CL in Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [649], GS submitted that the Court should exercise its discretion not to remit the matter to the District Court for a re-trial. GS submitted that the factual circumstances of the charges overlapped to such an extent that, should GS be convicted of the s 37(1A) charge, there would be a significant issue of totality on sentence, noting that he has already served more time in custody (by 9 months) than he was ultimately sentenced to serve.
6. Even if I were to conclude that it was open to the jury to find that the bruising on JC's neck was the result of the pressure applied to her neck by GS and that the bruising was the direct result of a restriction of blood flow to or from JC's head effected by that pressure, I would exercise the discretion not to make an order for a new trial in this case. The particular matters relevant to the exercise of the residual discretion in the present case are as follows: 1. the public interest in the due prosecution and conviction of offenders; the strength of the Crown case; the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury and the seriousness of the alleged crimes - these are factors favouring remitting the offender for re-trial; 2. the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused - this is a factor tending in favour of the exercise of the residual discretion; 3. whether the grant of a new trial would give the prosecution an opportunity to supplement or "patch up" a defective case - this is a factor tending strongly in favour of the exercise of the residual discretion. As I have explained, the absence of medical evidence in this trial was an important factor and if remitted the Crown could "patch up" this problem with the evidence; 4. the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial - this is a factor tending in favour of the exercise of the residual discretion; 5. whether a significant part of the sentence imposed upon conviction has already been served - given that the offender served a much longer time than his original sentence on remand, this is a factor tending strongly in favour of the exercise of the residual discretion; 6. the expense and length of a further trial and the fact that the offender was released from custody long ago - these are factors tending in favour of exercise of the residual discretion.

Endnotes

1. JC is identified by initials so as to protect the identity of the complainant of domestic violence.
2. Section 111(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) relevantly provides that the identity of the respondent to an appeal under s 107 of the Act must not be published unless authorised by order of this Court.
3. The law in England and Wales has changed. On 29 April 2021, the Domestic Abuse Act 2021 (UK) received royal assent. The Act creates a new offence of strangulation or suffocation which does not contain any further element relating to purpose or consequence. The amendments creating the new offence are expected to take effect in Spring 2022.
4. In response to the decision in Green (No 3), the ACT government inserted a statutory definition for "choking" into the Crimes Act 1900 (ACT) by the Crimes Legislation Amendment Act 2019 (ACT). "Choke" is now defined to include "apply pressure, to any extent, to the person's neck": s 27(1).

Amendments 06 May 2022 - Formatting change at [3] 14 October 2022 - 14 October 2022: Paragraph [4] - "back-up" amended to "back up" Paragraph [40] - "stature" amended to "statute" Paragraph [59] - "affectation of" amended to "an effect on" Paragraph [78] - "TK v The Queen" amended to "R v TK" Paragraph [104(2)] - "exercise the residual" amended to "exercise of the residual" Paragraph [104(4)] - "exercise the residual" amended to "exercise of the residual" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2022