Police v Jasny [2025] ACTMC 28

CRIMINAL LAW - STATUTORY INTERPRETATION - whether Criminal Code 2002 (ACT) applies to alleged offence against s 28(2)(a) of the Crimes Act 1900 (ACT) of act endangering health (choke, suffocate, strangle etc.) - better view that the Code does not apply.

Crimes Act 1900 (ACT), ss 7A, 27(3)(a), 28(2)(a)

Legislation Act 2001 (ACT), ss 127, 139, 141, 142

Crimes (Domestic and Family Violence) Legislation Amendment Act 2015

Explanatory Statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015

DPP v Basic (No 2) [2024] ACTSC 187

1. The defendant, Mr Michael Jasny, is before me for hearing on a single charge alleging that on 20 May 2024, in the ACT, in contravention of section 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act), he intentionally and unlawfully choked, suffocated or strangled another person, namely [redacted]. He has pleaded not guilty to that offence. The matter is listed for hearing before me for two days, commencing today.
2. Prior to the hearing formally commencing, the parties advised me that a legal issue relating to the interpretation of section 28(2)(a) needs to be resolved. In short, the issue is whether the Criminal Code 2002 (ACT) applies to the offence created by that provision. I am told and accept that, in the past, there have been Magistrates Courts' decisions going both ways on this issue, possibly influenced by the approach that the parties took in those individual cases. I further understand and accept that there is no Supreme Court or higher-level authority resolving the issue.

DPP v Basic (No 2) [2024] ACTSC 187

1. I note his Honour Justice Mossop's decision in the DPP v Basic (No 2) [2024] ACTSC 187. There, his Honour considered the elements of offences under sections 27(3)(a) and 28(2)(a) of the Crimes Act. Although his Honour analysed the elements of those offences, his Honour did not specifically address the issue to which I have referred. His Honour did observe that it was unfortunate that the legislature had not resolved the issue of whether or not the Criminal Code applied to an offence under section 27(3)(a) (choke, suffocate or strangle in a manner which endangers the life of the victim), which he regarded as most unfortunate. I agree.

1. The starting point is Part 2.1 of the Criminal Code. Section 7 provides that Chapter 2 of the Criminal Code applies to all offences against Territory laws. That is qualified, however, by section 8, which provides for a "delayed application" of Chapter 2 to certain offences. In a nutshell, section 8 provides that Chapter 2 does not apply to a "pre-2003 offence", except in particular circumstances. One such exception is that an Act or subordinate law expressly provides for the provisions to apply - we are not dealing with that scenario here. The second exception is where the offence is "omitted and remade (with or without changes)". Again, it appears to me, as further discussed below, that we are not dealing with this scenario. Ms McLean, who appeared for the DPP, did not seek to persuade me otherwise.

Section 7A of the Crimes Act

1. The question that requires resolution, as I see it, is whether or not an offence under section 28(2)(a) of the Crimes Act is properly to be regarded as a "pre-2003 offence" within the meaning of section 8 of the Criminal Code. As will become apparent, there are good arguments going both ways and the considerations are relatively evenly balanced.
2. I turn to section 7A of the Crimes Act. That provision provides simply that:

Other legislation applies in relation to offences against this Act.

1. In a sense, section 7A is merely observational and has no active operation. Relevantly, however, there is a "note" directly underneath the text that I have cited which lists - or which purports to list - the specific provisions in the Crimes Act to which Chapter 2 of the Criminal Code applies. There is a list of some 30-odd offences. For relevant purposes, it is sufficient to note that neither section 27 nor section 28 of the Crimes Act, which deal respectively with "Acts endangering life etc." and "Acts endangering health etc.", are listed in the note.
2. Section 127(1) of the Legislation Act 2001 (ACT) tells us that a note in or to an Act is not part of the Act. If, however, the note appears in an authorised version of the Act (and in this case the note to which I have referred to does fall within that category), it is material to which regard may be had in working out the meaning of the Act for the purposes of part 14.2 of the Legislation Act (I refer specifically to item 1 in table 142).
3. I note also that item 4 of table 142 states that "any explanatory statement for the bill that became the Act" is non-legislative material to which regard may be had in working out the meaning of an Act.
4. It is appropriate to note also that at section 139 of the Legislation Act provides that in working out the meaning of an Act, "the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation".

1. Turning to the relevant chronology, I understand from the submissions made to me that sections 27 and 28 of the Crimes Act, in a form resembling the way they appear today, were first inserted into the Crimes Act by the Crimes (Amendment) Ordinance (No. 2) 1990.
2. Section 27 was at that time and still currently is entitled "Acts endangering life etc." Section 28 was and is entitled "Acts endangering health etc." When section 27 was enacted in 1990, it provided that it was an offence for a person "intentionally and unlawfully to choke, suffocate or strangle another person so as to render that person insensible or unconscious". Section 28 dealt with other matters involving intentional and unlawful conduct which caused danger to health. There was no separate offence of "choking" or the like in section 28.
3. Section 28 was amended, however, in 2015 by the Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 to introduce the offence (which now appears as section 28(2)(a)) of intentionally and unlawfully choking, suffocating or strangling another person (simpliciter). It is no element of that offence, under what is now section 28(2)(a), that the relevant victim be "rendered unconscious or insensible". The explanatory statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 stated:

By amending section 28 of the Crimes Act, the provision is not being amended and remade. There is no new penalty attached to the amendment, nor is the existing section 28 penalty amended. Accordingly, the provisions for criminal responsibility contained in chapter 2 of the Criminal Code are not intended to apply to the amended section 28. (emphasis added)

1. It will be apparent from what I have said that it is clear that the legislature, at the time that section 28(2)(a) was enacted, specifically addressed its mind to the question of whether it was a provision that should or should not attract the operation of Chapter 2 of the Criminal Code and formed, and expressed, the view that it should not.

1. Notwithstanding those matters, the prosecution submits that the better view is that the offence created by section 28(2)(a) is not a "pre 2003 offence" for the purpose of section 8 of the Criminal Code. Simply put, that is because the offence, as I have indicated, did not exist until it was inserted by the amending Act in 2015 and as such, the carve out created by section 8 of the Criminal Code does not apply, leaving section 7 to have its natural operation of applying chapter 2 of the Criminal Code to all offences against territory laws.
2. That argument makes logical sense, insofar as it cannot be argued otherwise than that the particular offence, or version of the offence, of "Act endangering life" created by section 28(2)(a) did not exist prior to 2015.

1. That leaves the court in a situation where there are two competing interpretations of the Code in relation to this particular provision, both of which are available and, as I indicated previously, the considerations are relatively evenly balanced.
2. In my view, the resolution of the matter lies in section 139 of the Legislation Act, in particular subsection 139(1), which provides that in working out the meaning of an Act, "the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation". That provision is important, as is my ability under sections 141 and 142 to have regard to material not forming part of the Act itself but forming part of the legislative context or non-legislative context, including the note to section 7A of the Crimes Act and the explanatory statement which accompanied the enactment of the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015.
3. The interpretation for which the prosecution contends, although it at least, to some extent, makes logical sense, would have the result which would be somewhat unusual, in my view, that the Criminal Code would apply to the commission of an offence against paragraph 28(2)(a) of "choking" (to use the shorthand) but not to the more serious offence under paragraph 27(3)(a) of the Crimes Act of "choking ... so as to render a person insensible or unconscious", because that latter offence clearly was a "pre-2003 offence" (that is common ground).
4. It would also have the result that the Criminal Code applies to an offence under paragraph 28(2)(a), but not, as I understand it, in respect of offences against paragraphs 28(2)(b), (c), (d) or (e). In my view, an interpretation of that kind, which leads to those results, is not one which would best achieve the purpose of the Crimes Act as a whole because it would lead to discordance, and a lack of uniformity, in a manner which I think is undesirable and likely to reduce public confidence in the administration of criminal law.
5. I agree with the observation that his Honour Justice Mossop made in Basic that it is unfortunate in the extreme that, despite commencing the process of attempting to codify the criminal law in the ACT in 2002, that work seems to have been abandoned partway through, or at least the "delayed application" of parts of Chapter 2 seems to have been delayed much longer than anyone involved might reasonably have anticipated.
6. Finally, I note that the conclusion which I have reached seems to be entirely consistent with the intention of the legislature as expressed at the time section 28(2)(a) was introduced, although I accept, of course, as the prosecution has implicitly submitted, that what is said in the explanatory material should not be and is not decisive of the correct interpretation. It nevertheless supports the interpretation that I have reached.
7. For those reasons, I find that Chapter 2 of the Criminal Code does not apply to an offence against s 28(2)(a).

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Hassall.