Supreme Court of the ACT|2019-03-14|Before: Loukas-Karlsson J

R v Green (No 3) [2019] ACTSC 96 (11 April 2019)

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - application for directed verdict - whether defect in the evidence was present - absence of evidence of element of the offence - application granted

STATUTES - Interpretation - word and phrases - s 28 Crimes Act 1900 (ACT) - meaning of the words "choke", "strangle" and "suffocate" - whether the offence requires the victim to have stopped breathing

Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 (ACT)

2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488

A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Aubrey v R [2017] HCA 18; 260 CLR 305

CIC Insurance Ltd v Bankstown Football Club ltd [1997] HCA 2; 187 CLR 384;

Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271

Doney v The Queen [1990] HCA 51; 171 CLR 207

Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503

House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498

Innes v R [2018] NSWCCA 90

Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876; 270 ALR 65

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468

NSW v Slater [2018] NSWSC 274

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

R v Adams (No 6) [2016] NSWSC 1565

R v Bishop (1888) 88 4 WN (NSW) 107

R v Lavender [2005] HCA 37; 222 CLR 67

R v MCW [2018] QCA 241

R v MDB [2018] QCA 283

R v Osborne [1987] 1 Qd R 96

R v Peifeng Yu [2016] NSWDC 257

R v Simonds [2018] ACTSC 265

R v Van Duren [2017] ACTSC 132

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252

SAS Trustee Corp v Miles [2018] HCA 55; 361 ALR 206

SZTAL v Minister for Immigration and Border Protection; SZTGM v Same [2017] HCA 34; 347 ALR 405

TAL Life Ltd v Shuetrim [2016] NSWCA 68; 91 NSWLR 439

Yeats v Stevens [2019] ACTMC 4

SCC 204 of 2018; SCC 205 of 2018

1. Timothy James Green was charged with two counts of choking, suffocating or strangling a person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act) arising out events alleged to have occurred on 13 March 2018.

2. It was the Crown's case that, during an argument between the accused and his mother (EC), whom the accused resided with and cared for, the accused:

(a) placed his hands around EC's neck and squeezed, causing her to feel "dizzy" (Count 1); and

(b) took a pillow and placed it over EC's head, smothering her with it (Count 2).

3. The Crown's case relied on the initial accounts of EC of the alleged conduct conveyed to police and medical staff on 13 March 2018 and for some time afterwards. At some point later, EC recanted her allegations, instead asserting she had fictionalised the account in a moment of anger towards her son. EC again denied the alleged conduct in her evidence at trial.

4. On the seventh day of trial, counsel for the accused made a no-case submission, which I upheld. Accordingly, two distinct but related questions required consideration, namely:

(a) how the elements of "chokes" "suffocates" and "strangles" for the purpose of s 28(2)(a) should be interpreted with respect to their respective effects on the breathing of a victim; and

(b) as a consequence of the interpretation of these elements of the offence, whether the state of the evidence was such that the accused's no-case submission should be upheld.

5. What follows are my reasons for my decisions in respect of each question.

6. Section 28(2) of the Crimes Act provides:

(a) chokes, suffocates or strangles another person; or

(b) administers to, or causes to be taken by, another person any poison or other injurious substance with intent to injure or cause pain or discomfort to that person; or

(c) causes an explosion or throws, places, sends or otherwise uses any explosive device or any explosive, corrosive or inflammable substance in circumstances dangerous to the health, safety or physical wellbeing of another person; or

(d) sets a trap or device for the purpose of creating circumstances dangerous to the health, safety or physical wellbeing of another person (including a trespasser); or

(e) interferes with any conveyance or transport facility or any public utility service in circumstances dangerous to the health, safety or physical wellbeing of another person;

is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

7. The terms "choke", "suffocate" and "strangle" are not defined in the Crimes Act and the meanings of the terms are yet to receive substantive judicial consideration in this jurisdiction.

8. It should be noted that references to the same three terms in s 27(3)(a) of the Crimes Act do not necessarily assist the Court in the construction of s 28(2)(a), as the former section requires, as an element of that offence, that the relevant actions must render the victim insensible or unconscious. The absence of that additional element in s 28(2)(a) indicates the latter section is directed towards different conduct.

9. It is uncontroversial that a question of statutory construction must be "determined by reference to text, context and purpose" of the Act in question (Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [10]). Nevertheless, in approaching the task of construing s 28(2)(a), it is appropriate to elaborate on this process by reference to a number of further principles.

10. First, regard must be had to the appropriate starting point for the task of construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ observed as follows at [47]:

This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

11. This process was considered more recently in SZTAL v Minister for Immigration and Border Protection; SZTGM v Same [2017] HCA 34; 347 ALR 405 (SZTAL) by Kiefel CJ, Nettle and Gordon JJ at [14]:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

12. Thus, while it is appropriate in the first instance to consider the natural and ordinary meaning of words of the statute, at this initial stage context and purpose may nevertheless ultimately displace an otherwise ordinary meaning. As was observed by Kiefel CJ, Bell and Nettle JJ in SAS Trustee Corporation v Miles [2018] HCA 55; 361 ALR 206 (SAS Trustee) at [20]:

Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.

13. Second, when considering the text of the Act, it must be read with regard to, and consistently with, the provisions of the Act as a whole (Legislation Act 2001 (ACT) (Legislation Act) s 140; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]).

14. Third, when construing a particular word, a court may take judicial notice of the fact of an 'ordinary meaning' of a word, and can do so with the assistance of an authoritative dictionary (Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876; 270 ALR 65 at [37] - [38]). In Australia, the "most authoritative" dictionary is said to be the Macquarie Dictionary (see House of Pearce Pty Ltd v Bankstown City Council [2000] NSWSCA 44; [2000] NSWCA 44; 48 NSWLR 498 at [33]). I note, however, the concerns expressed by Leeming JA regarding the reliance on dictionaries in discerning meaning within a particular context (see 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 at [81]). The use of a dictionary is considered no substitute for the interpretative process (TAL Life Ltd v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 at [80]).

15. Fourth, consistent with the approach described in SZTAL, context and purpose should not be considered at some later stage, including legislative history and extrinsic materials (Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 at [39]). Some uncertainty exists as to the requirement for the statutory text to present an ambiguity before referral can be made to extrinsic materials (see CIC Insurance Ltd v Bankstown Football Club ltd [1997] HCA 2; 187 CLR 384 at 408; A2 v R [2018] NSWCCA 174 at [477]; cf Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [33]). However, there is authority in this jurisdiction at least that such an ambiguity is not required (Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271).

16. In any event, the Legislation Act, though not an exhaustive codification of the law of interpretation in this jurisdiction (s 137(2)), provides that extrinsic materials may be referred to for the purposes of, amongst others, resolving an ambiguous or obscure provision of an Act or confirming or displacing the apparent meaning of an Act (ss 138, 141). The categories of materials that a court may have regard to are listed non-exhaustively in s 142 of the Legislation Act.

17. Fifth, in this jurisdiction, where multiple possible interpretations of an Act are open, the interpretation which "best achieves" the purpose of the Act is to be preferred to any other interpretation (Legislation Act, s 139).

18. Finally an additional presumption is applicable in the context of penal statutes in particular. That is, although ordinary rules of construction are to be applied, where doubt exists in the construction of penal statute, courts should interpret the statue so as not to extend a category of criminal offences (Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 (Beckwith) at [9]). However, this presumption is one to be applied as a "last resort" (Beckwith at [9]; Aubrey v The Queen [2017] HCA 18; 260 CLR 305 at [39]) or when "an ambiguity seems intractable" (R v Lavender [2005] HCA 37; 222 CLR 67 at [94]).

19. The Crown submitted that in relation to s 28(2)(a), 'strangulation' should be made out with respect to Count 1, and 'suffocation' with respect to Count 2.

20. In respect of how those terms should be defined, the Crown submitted as follows:

HER HONOUR: Yes. So the three elements are that the accused choked, suffocated, strangled the complainant. The choking was intentional, the choking unlawful. So you're putting the case in relation to both counts on what basis? Choking, suffocation or strangulation?

MADAM CROWN: Your Honour, for the first count which will be the strangulation, and the -

HER HONOUR: First count will be strangulation, yes.

MADAM CROWN: Yes. And the second count is suffocation.

HER HONOUR: So in terms of -actually, what I have before me is a - I have the law:

"the expression 'choked' has the same meaning as it does in normal speech. It means to stop another person from breathing by squeezing or obstructing their windpipe."

That's the same meaning as for strangulation is it not?

MADAM CROWN: Your Honour, my understanding is there are slightly different meanings, that strangulation and suffocation have a similar meaning in terms of the ordinary meaning which is to -

HER HONOUR: So in relation to suffocation - well, the first one's strangulation, is it not? Yes.

MADAM CROWN: Yes

HER HONOUR: So in relation to strangulation, what do you say it is?

MADAM CROWN: It's to impede or restrict breathing.

HER HONOUR: To impede or restrict breathing you say is the element of strangulation?

MADAM CROWN: Yes.

HER HONOUR: And in relation to suffocation?

MADAM CROWN: Suffocation has a similar meaning.

HER HONOUR: So you say in respect of both it's to impede or restrict breathing?

MADAM CROWN: Yes. And that's according to the Macquarie Dictionary.

HER HONOUR: So in relation to explaining that element to the jury, you're relying on the Macquarie definition?

MADAM CROWN: Yes.

21. The definition of the verb 'strangle' as it appears in the Macquarie Dictionary Online is as follows:

Strangle

-verb (t) 1. To kill by compression of the windpipe, as by a cord around the neck; 2. To kill by stopping the breath in any manner; choke; stifle; suffocate; 3. To prevent the continuance, growth, rise, or action of; suppress; -verb (i) 4. To be choked, stifled, or suffocated; -noun 5. (plural construed as singular) an infectious febrile disease of equine animals, characterised by catarrh of the upper air passages and suppuration of the submaxillary and other lymphatic glands; distemper.

22. Contrary to the Crown submission as set out above, it should be noted that the Macquarie Dictionary does not define 'strangle' as "impede or restrict breathing" but rather as "stopping the breath".

23. The definition of 'suffocate' as it appears in the Macquarie Dictionary Online is as follows:

Suffocate

-verb (t) 1. To kill by preventing the access of air to the blood through the lungs or analogous organs, as gills; 2. To impede the respiration of; 3. To cause discomfort to through lack of cool or fresh air; 4. To overcome or extinguish; suppress; -verb (i) 5. To become suffocated; stifle; smother; 6. To feel discomfort through lack of cool or fresh air; 7. To feel oppressed by one's circumstances or situation, as if suffocating: to suffocate in a marriage.

24. It should also be noted that the definition of suffocate refers to "preventing the access of air" as well as to "impede the respiration". I also note the former definition appears before the latter definition. This sequencing process is explained in the Macquarie Dictionary (Fifth Edition, 2009) as follows:

Definitions are individually numbered...The central meaning of each part of speech is put first - this is generally the most common meaning.

25. The Crown did concede that 'choke' was defined in the Macquarie Dictionary Online as being to 'stop the breath'. The full definition is as follows:

Choke

verb (t) 1. To stop the breath of, by squeezing or obstructing the windpipe; strangle; stifle; suffocate; 2. To stop, as the breath or utterance, by or as by strangling or stifling; 3. To check or stop the growth, progress, or action of: to choke off discussion. 4. To stop by filling; obstruct; clog; congest; 5. To suppress, as a feeling or emotion; 6. To fill chock-full; 7. To enrich the fuel mixture of (an internal-combustion engine) by diminishing the air supply to the carburettor; 8. To stop the forward movement of (a load) by strapping it down tightly: to choke the load; -verb (i) 9. To suffer strangling or suffocation; 10. To be obstructed or clogged; 11. Sport to lose one's confidence when close to victory; -noun 12. The act or sound of choking; 13. (in internal-combustion engines) the mechanism by which the air supply to a carburettor is diminished or stopped. 14. Machinery any such mechanism which, by blocking a passage, regulates the flow of air, etc; 15. A narrowed part, as in a chokebore; 16. A narrowed part of a river where the banks are closer to each other; 17. The filamentous, inedible centre of the head of an artichoke; 18. Electricity a coil or inductor which allows direct currents to pass freely through but impedes the passage of alternating currents by an amount which increases with the frequency of the alternating current; -phrase 19. Choke back, to suppress: *The electricians, solid, practical chaps, choked back slightly indulgent smiles when I discussed some of the problems with them...20. Choke down: a. to suppress, b. to bring down (a wild horse, steer, etc.) by roping it around the neck, c. to swallow with difficulty: they choked down the unpalatable mess, 21. Choke up: a. to be temporarily overcome, as with emotion: he choked up as soon as the music started, b. to overcome, as with emotion: his words choked me up; ...

26. Nevertheless, the Crown submitted the offence is made out where the conduct results in either choking, strangulation or suffocation, and that choking was not being relied upon for either Count. The Crown observed that there was some degree of cross-referral between the definitions, and that:

[T]o strangle is defined as to 'Be choked, stifled, or suffocated.' And then suffocated is defined as to 'Impede the respiration of -' rather than stopping the breathing. So if all of them - the terminology for all three words in the ordinary meaning adopts each other, they refer to each other in their definition.

27. Counsel for the accused submitted that the Crown's definition was at odds with that provided by Dr Parekh in her evidence. Dr Parekh relevantly gave evidence that:

...strangulation is where you have external compression to the neck. So that's an externally applied pressure. Choking is when an object is placed within the airway so that you have got a major airway called your trachea and something goes down that way and you often see that when somebody has - the food's gone down the wrong way - they might cough. And suffocation is where your nose and mouth are covered so that you can't breathe.

28. The Crown sought to characterise the definition provided by Dr Parekh as limited to a description of the physical acts involved, rather than their effect on the breathing of the victim.

29. The Crown's ultimate submission was that the necessary element was only to "impede or restrict the breathing" not to stop the breath. The accused's ultimate submission was that the element was to stop the breath, not merely impede.

Presentation Speech and Explanatory Statement

30. Section 142 of the Legislation Act contains a non-exhaustive list of materials which a court may refer to in considering an ambiguous provision of an Act or confirming or displacing an apparent meaning. This includes any explanatory statement for the bill that became the relevant Act and the presentation speech made to the Legislative Assembly during the passage of the bill that became the Act (Items 4 and 5, s 142).

31. Section 28(2)(a) of the Crimes Act was introduced by the Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 (ACT) (Amendment Act). In the Presentation Speech for the Amendment Act, the following context for the provision was recorded:

Today I will provide members with an overview of the proposed amendments and the policies that drive these reforms. Turning firstly to the issue of strangulation, the bill amends the acts that endanger health set out in section 28 of the Crimes Act to reflect that choking, suffocating or strangling another person can have serious impacts on a victim's long and short-term health.

...

[I]t is important that there is an appropriate offence to accurately reflect the harm caused to a person's health through strangulation. In the existing provision, in order to prove an offence the prosecution must prove beyond reasonable doubt that the strangulation was so severe that the victim lost consciousness or was rendered insensible. If a defendant instead applied pressure to a victim's throat to such an extent that they lost the ability to breathe but stayed conscious and in possession of all their faculties the charge would fail. The only alternative charge, when no marks are visible, is common assault which has a maximum penalty of two years imprisonment

32. The Explanatory Statement to the Amendment Act provides further context for the policy behind s28(2)(a), stating:

Currently the only offence in ACT Legislation directly aimed at strangulation is contained in section 27 of the Crimes Act 1900 as an 'act endangering life'. The penalty for an offence under this section is imprisonment for up to 10 years.

In order to prove an offence under section 27 of the Crimes Act, the prosecution must prove beyond reasonable doubt that the strangulation was so severe that the victim lost consciousness or was rendered insensible. If an accused merely applied pressure to a victim's throat to such an extent that they lost the ability to breathe but stayed conscious and in possession of all their faculties, the charge would fail.

...

The amendment seeks to recognise the seriousness of strangulation in an offence with a lower threshold than "endangering life".

Consideration of 'choke, strangle or suffocate' offences across Australia

33. The introduction of s 28(2)(a) into the Crimes Act 1900 in 2015 appears to form part of broader introduction of similar offences across Australian jurisdictions. These offences appear to be aimed at addressing findings by researchers that such conduct is common in particular in domestic violence settings and is a strong predictor of fatalities.

34. These new provisions were introduced in the context of existing offences which contain elements of 'choke, strangle or suffocate', but also require some further element of conduct to make out the offence (for example, that the conduct occurred in order to facilitate an indictable offence or the conduct rendered the victim insensible or unconscious). Therefore, the intention behind these new provisions appears to be to lower the threshold of conduct to capture a broader range of conduct, particularly in the domestic violence setting.

35. Certain of these 'existing' offences are outlined below:

Section 27, Crimes Act 1900 (ACT)

(a) chokes, suffocates or strangles another person so as to render

that person insensible or unconscious or, by any other means,

renders another person insensible or unconscious; or

is guilty of an offence punishable, on conviction, by imprisonment for 10 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.

(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.

(3) In this section: another indictable offence means an indictable offence other than an offence against this section.

Section 315, Criminal Code 1899 (QLD)

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.

Any person who, by any means whatever calculated to choke, suffocate, or strangle, or,

by any violent means whatever, renders any person incapable of resistance, with intent

thereby to facilitate the commission of an offence, or to facilitate the flight of an offender

after the commission or attempted commission of an offence, is guilty of a crime.

Section 175 of Schedule 1, Criminal Code Act 1983 (NT)

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 an offence

36. Certain of the 'new' offences are outlined below:

Section 28(2)(a), _Crimes Act 1900 (_ACT)

(a) chokes, suffocates or strangles another person; or

is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

(a) the person unlawfully chokes, suffocates or strangles

another person, without the other person's consent; and

(i) the person is in a domestic relationship with the

Section 37, Crimes Act 1900 (NSW)

(1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person's consent.

(1) A person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person's consent, is guilty of an offence.

37. The terms 'choke', 'strangle' and 'suffocate' are not defined terms in any of the legislation referred to above. Moreover, given how recently the 'new' offences have been introduced, there has been little consideration of the terms in the absence of the additional elements of conduct present in the existing offences.

38. In the ACT, s 28(2)(a) has only arisen in circumstances which did not call for the consideration of the construction of the elements. To illustrate, either the complainant's version of events was not made out to the requisite standard of proof (R v Simonds [2018] ACTSC 265 (Simonds)) or the provision arose in the context of sentencing only (R v Van Duren [2017] ACTSC 132 (Van Duren); Yeats v Stevens [2019] ACTMC 4 (Yeats)). In Simonds, the accused allegedly put his knee on the throat of the complainant, making it "difficult to breathe" (at [13]), in Van Duren the victim's face turned a dark red, she was on the verge of losing consciousness, experienced difficulty breathing and contemplated the possibility of death (at [16], [22]), and in Yeats the victim could not "breathe nor speak" (at [23]).

39. In NSW, consideration of the meanings of these terms is necessarily coloured by the additional element in s 37 of rendering the other person unconscious, insensible or incapable of resistance. As such, unsurprisingly, cases where that offence has arisen commonly refer to the victim having stopped breathing (see NSW v Slater [2018] NSWSC 274; R v Peifeng Yu [2016] NSWDC 257). Prior to 2014 amendments to the offence, a limb of s 37 was couched in terms of an 'attempt' to choke, strangle or suffocate' and the facts of cases where an attempt offence was made out also indicate the victim stopped breathing (see McKechnie v R [2006] NSWCCA 13; R v MW [2007] NSWCCA 291; R v Cutrale [2011] NSWCCA 214; Bland v R [2014] NSWCCA 82; Munn v R [2009] NSWCCA 218).

40. In R v Adams (No 6) [2016] NSWSC 1565, Button J rejected an argument that s 37 required an intent to inflict death, noting at [350]:

[Although] the concept of suffocation perhaps suggests 'completion', neither the concept of choking or strangulation does so, as a matter of the meaning of the English words used by Parliament.

See also R v Bishop (1888) 88 4 WN (NSW) 107.

41. There does not appear to have been judicial consideration of the elements of the new s 37(1A) offence. However, extrinsic material indicates a lower standard of stopping the breath may be adopted (see Second Reading Speech, Crimes Legislation Amendment Bill 2018, 17 October 2018).

42. In Queensland, before the introduction of s 315A, the elements of s 315 were considered by the Court of Appeal in R v Osborne [1987] 1 Qd R 96. Here, 'incapable of resistance' was interpreted as being wide enough to include crying out for assistance. Accordingly, choking the victim so that they could not cry out was held to be sufficient to make out the complete offence. As to the 'choke' element, the direction given to the jury was summarised by Connolly J (at 97):

The learned trial judge directed the jury that the third element of the offence was that the choking, the squeezing of the throat to stop the breathing, was done in an attempt to render the complainant incapable of resisting an indecent assault.

43. The 'choke' component of the offence was subsequently considered in Lansbury v R [1988] 2 Qd R 180 where it was observed by Macrossan J (at 181):

[T]he learned trial judge...told the jury that the word "choke", contained in the charge, carried the meaning of stopping the aperture of the girl's throat and preventing her from breathing. No objection was made to this direction.

44. The above two cases appear to consider the 'choke' element independently of the 'additional element' and with a requirement for stopping breathing. However, given the context of that offence, the conduct (including preventing the victim crying out) might be considered to be more serious than the ordinary meaning of the term 'choking'. Cases considering the new section 315A, such as R v MCW [2018] QCA 241 (MCW) and R v MDB [2018] QCA 283, have not considered the elements themselves but have, in the context of sentencing, observed it is not useful to have regard to comparable cases on actual bodily harm, as the legislature has expressly indicated a unique domestic violence offence with the introduction of s315A for conduct which is "inherently dangerous" (MCW at [3]). In both those cases the victim was unable to breathe as a result of the offending conduct.

45. Consideration of the relevant terms in other Australian jurisdictions as set out above does not lend support to the Crown contention of 'impede' or 'restrict'.

Conclusion - "choke", "strangle" and "suffocate" element

46. In my view, the relevant element is constituted by the stopping of the breath.

47. I have come to this view, as a matter of statutory construction, for the following reasons:

(a) By reference to the text and statutory context, the consistent theme of the terms "choke", "suffocate" and "strangle" involve a stopping of the breath;

(b) The common aspect of the Macquarie definition across all three terms is the stopping of the breath, not merely the impeding or restricting of the breath;

(c) Stopping, rather than merely impeding the breath, is consistent with the nature of the other offences encapsulated in s 28(2), including:

(b) administers ... poison or other injurious substance with intent to injure or cause pain or discomfort to that person; or

(c) causes an explosion or ... uses any explosive device or any explosive, corrosive or inflammable substance in circumstances dangerous to the health, safety or physical wellbeing of another person; or

(d) sets a trap or device for the purpose of creating circumstances dangerous to the health, safety or physical wellbeing of another person (including a trespasser); or

(e) interferes with any conveyance or transport facility or any public utility service in circumstances dangerous to the health, safety or physical wellbeing of another person;

(d) If it can be said that the text read in context permits more than one potential meaning, the choice may turn on the relative coherence of each with the scheme of the statute and its identified objects (SAS Trustee). At least where there is ambiguity, regard may be had to extrinsic materials. Having considered the matters set out in s 141 of the Legislation Act, I have had regard to the extrinsic materials for the purposes of construing these terms;

(e) In particular, the Presentation Speech to the Amendment Act refers to circumstances where an offender "applied pressure to a victim's throat to such an extent that they lost the ability to breathe but stayed conscious" (emphasis added);

(f) The Explanatory Statement to the Amendment Act refers to circumstances where an offender "applied pressure to a victim's throat to such an extent that they lost the ability to breathe but stayed conscious and in possession of all their faculties" (emphasis added);

(g) Finally, as this is a penal statute, where doubt exists in the construction of a penal statute, courts should interpret the statute so as not to extend a category of criminal offences. Therefore, consistent with this approach, to stop the breath (albeit for one breath or one second) is in my view the correct statutory construction of this statute. The alternative construction of impeding or restricting the breath is an ambiguous construction in the context of construing a penal statute. It would be difficult to administer an offence which is based on restricting the breath, as opposed to stopping the breath. Therefore, stopping the breath, an inability to breathe, is in my view the correct construction. The alternative construction invites the question of the requisite extent of restriction necessary to constitute the offence. Obviously, an alternative charge of assault is available in such circumstances.

Question 2: the directed acquittal application

48. At about 9:57am on 13 March 2018, EC participated in a recorded interview with First Constables Justin Mesman and Robert Polosak. That interview included the following exchanges:

A: Um, my son, Timothy, um, ah, put his hands around my throat and choked me. Um, and then, um, he then put a pillow over my head, trying to stop the air-my breathing.

Q14: Okay. And you said that he had his hands around your throat. Can you tell me more about that?

A: Um, he just done it because I was asking - I've been laying in bed for three or four days and I asked, "could I have a cigarette?" And he just started verbally abusing me. And then he just came to the bedroom and abused me verbally and then that's when he put his hands around my throat and tried to choke me and then tried to smother with the pillow.

Q20: Okay. So can you tell me more about how he choked you?

A: Um, well, he's I was facedown, but he had his hands around my throat squeezing my neck.

A: And the he got the pillow and forced it over my head. But I was able to get a bit of air from the side of the - the - the cushion. And he just left and said he - he was coming back for me.

Q23: And when he was squeezing your neck, how hard was he squeezing it?

A: Ah, fairly had [sic], but he hasn't left any bruises or anything. But fairly for my neck and his hands.

Q24: Yep. And how long did he have hold of your neck?

A: I don't know. About thirty seconds or more. Maybe - I can't tell.

Q26: Dizzy? And so that was the squeezing of your neck. Can you tell me more about the pillow incident?

A: Well, it's a big brown cushion from the couch. And he, um, came up and he had it in his hand. And he pushed me down on the bed. And, um, I was leaning over to my right side and he pushed the pushing down very hard to sort of block off any air coming down. But I was able with my left-hand to lift the corner of the cushion so I was getting a little bit of air and trying to breathe through my nose. And then he left - he pulled it off and he left and then said he'd be back for me, that he was going to kill me.

49. At trial, however, EC denied that any of the conduct alleged to form Counts 1 and 2 had in fact occurred. EC did not deny that she and her son had been engaged in an argument in the early hours of the morning on 13 March 2018, following which she left her house and travelled to the nearby home of Ms Nicola Holmes. From there, EC stated she told Ms Holmes her son had attacked her and the police were called. EC testified that she repeated this lie to police officers who arrived at the scene, ambulance officers, hospital staff and to her neighbour.

50. It was EC's evidence that she and her son were engaged in an argument in the early hours of 13 March 2018 arising out of, at least in part, a dispute over cigarettes. EC stated that during this argument, the accused had threatened to "put her in a home". EC further stated that during this argument she threatened to call police, left the house and later developed an intention of doing so. EC testified that her initial intention was to go to Ms Holmes' residence to ask for a cigarette but that, while there, she made the allegations against the accused and the police were called.

51. EC indicated that she perpetuated the lie to police officers, hospital staff and neighbours over the coming hours and days. EC asserted that she initially enjoyed the attention she received as a result of her complaint. EC asserted that her main motivation for doing so was to ensure that the accused's ex-partner could not move in to her residence. During her testimony she also indicated she was "coming down off my OxyContin" which had impacted her actions. In cross-examination by Mr Thomas, EC elaborated that the OxyContin withdrawal symptoms included dizziness, sickness, anxiety, depression and that this was combined with cigarette withdrawals on the morning in question.

52. EC gave evidence that at some time after the incident she attempted to convey the truth to a number of individuals, including a magistrate and an individual at the ACT DPP as the matter progressed. On 4 July 2018, EC signed a statutory declaration stating that the events had been fabricated and she hoped her son could come home. No reference was made in this statutory declaration to the motivation relating to the ex-partner, though EC testified she did not have room for this context in that document. EC testified she provided the statutory declaration to the office of the ACT Director of Public Prosecutions.

53. EC denied that the accused had pressured her to sign the statutory declaration or attempted to get charges dropped.

54. The Crown called a number of police witnesses as part of its case.

55. Constable Emma Frizzell gave evidence that she attended Ms Holmes' address in the early hours of 13 March 2018 at which point EC told her that the accused had choked her and put a pillow on her face. She observed EC to be breathless and incoherent. Constable Frizzell had inspected EC's neck but did not see any signs of injury.

56. Constable Franz Badenhorst also gave evidence that he attended Ms Holmes' address in the early hours of 13 March 2018 at which point EC told him she had been assaulted by her son and that she was also choked and suffocated by him during an argument. Constable Badenhorst testified that EC had told him she then left the residence and hid in a bush to try to hide from her son who was then driving around in a vehicle. Constable Badenhorst stated he travelled with EC from Ms Holmes' residence to the Canberra Hospital and waited with her for some time while she was medically assessed. Constable Badenhorst asked EC whether she wished to partake in a Family Violence Evidence-in-Chief interview, which EC indicated she did. At that time, Constable Badenhorst indicated EC was still upset but had calmed down since the events in question. Constable Badenhorst had inspected EC's neck but did not see any signs of injury.

57. Constable Natasha Dore gave evidence of attending Ms Holmes' residence on 13 March 2018 and speaking to Ms Holmes. A recorded interview of this conversation was played as part of Constable Dore's evidence, during which Ms Holmes described EC arriving at her residence crying and then requesting Ms Holmes call the police. Ms Holmes indicated she did not recall seeing any injuries on EC.

58. Detective Leading Senior Constable Troy Gordon gave evidence about his discussions with EC on the afternoon of 13 March 2018, regarding the process for the obtaining of a Family Violence Order and the subsequent obtaining that order. The witness also gave evidence of a call he had placed to EC on 27 April 2018 during which EC had indicated she no longer wished to have the Family Violence Order in place and that she was hoping all police action would stop in relation to the matter. On 29 May 2018, Constable Gordon had a conversation with Constable Mesman who also confirmed that EC no longer wanted the Family Violence Order in place and wanted the accused to return home. The witness noted the Family Violence Order was dismissed by the Magistrates Court.

59. Senior Constable Justin Mesman gave evidence that he attended Canberra Hospital on the morning on 13 March 2018 where he was introduced to EC by the officers accompanying her. Constable Mesman gave evidence that EC told him she had been choked by her son, after which she became visibly upset and made threats to take her own life. Constable Mesman arranged for medical attention, took photographs of EC, from which he could not see any physical injury, and conducted the recorded interview. Subsequently, Constable Mesman made several unsuccessful attempts to locate the accused and ultimately arranged for a warrant to be issued for his arrest. Constable Mesman remained in regular contact with EC until the arrest of the accused on 9 June 2018. EC's attitude towards Constable Mesman changed over this time and requested he did not attend the location, stating she wanted the accused to come home to care for her and to provide financial assistance. On 20 April 2018, Constable Mesman became aware that EC was seeking to withdraw her complaint and that she had lied.

60. Constable Michael Turner gave evidence that he received a phone call from an individual identifying themselves as EC on 20 March 2018. Constable Turner testified that the caller indicated that her son had returned home, that she was frightened and that she required a police presence.

61. Detective Leading Senior Constable David Driessen gave evidence regarding his attendance at EC's residence on 9 June 2018 where he located the accused hiding under a sheet in a bedroom.

62. The Crown called a number of Canberra Hospital staff as part of its case.

63. Simon Gallagher, an Intensive Care Paramedic with the ACT Ambulance Service, gave evidence that he attended Ms Holmes' residence at 3:57am on 13 March 2018 to examine EC. Mr Gallagher noted that he recorded EC stating to him that the was "grabbed by the neck and choked as well as having a pillow put over her face and pressure out on the front of her face". Mr Gallagher also noted that EC told him she was able to move her neck with slight increase in pain and did not have any difficulty swallowing. EC also told him she had ache in her neck area and a headache, and that she was in mild to moderate pain. Mr Gallagher inspected EC's neck and did not record nor recall evidence of injury. .

64. Andrea Nissen, registered nurse within the Consultation Liaison Psychiatry Emergency Department of Canberra Hospital, gave evidence of her risk assessment conducted on EC on the morning of 13 March 2018 as a result of a referral following indications of thoughts of self-harm. Ms Nissen's notes of her assessment record that EC told her that her son had tried to "smother her with a pillow and then squeeze her neck with his hands". Ms Nissen's conclusion at the end of her assessment was that no further input from mental health services was required but that social work and domestic violence services should engage EC.

65. Annalies Grogan, social worker at the Canberra Hospital, gave evidence of her consultations with EC from 13 to 21 March 2018. Ms Grogan gave evidence that EC had expressed concerns to her about returning home and recorded in her notes that this related to the possible presence of the accused at the residence. Ms Grogan subsequently attempted to source alternative accommodation for EC. However, upon learning no such accommodation was available, Ms Grogan noted EC appeared upset, stating something to the effect of "well, you can't help me, can you?".

66. Dr Vanita Parekh, Director of Forensic Medicine Services at Canberra Hospital, gave evidence on the general signs and symptoms that might be exhibited in cases of non-fatal strangulation, including bruising or marking to the neck, petechial bruising and bleeding into the whites of the eyes. However, Dr Parekh also noted it can be "a very common finding" that there are no clinical signs at all.

67. Dr Parekh also gave evidence based on her review of EC's medical records, although she did not personally examine EC or review photographs. Dr Parekh noted that EC's medical records showed she exhibited non-blanching petechiae on the bridge of the nose, a hoarse voice and reported wheezing. In cross-examination, Dr Parekh confirmed she could not provide evidence as to the cause of the non-blanching petechiae or for how long it had been there. Dr Parekh also confirmed that difficulty walking, regular dizziness, wheezing, a hoarse voice, and the side effects of the medications to treat such conditions, could be consistent to EC's pre-existing conditions, which included chronic obstructive pulmonary disease and the results of her laminectomy.

68. The ex-partner of the accused and mother to the accused's daughter gave evidence that she received a phone call from EC from the hospital in March 2018, two days after she had become aware EC was in hospital. Her evidence was that EC, with whom she had an acrimonious relationship with for some time, told her that the accused had tried to choke her and put a pillow over her face and that she recalls EC telling her "I'd had enough of it. I wasn't taking it anymore".

69. The accused gave evidence that he was the carer for his mother "24/7" and assisted with her various health conditions, which were said to include hypertension, a thyroid condition, depression, chronic back pain, sleep apnoea and arthritis. The accused gave evidence that in the period leading up to 13 March 2018 his mother's health was deteriorating and circumstances became increasing difficult, leading to an increased frequency of arguments. Further, the accused gave evidence that on the night before the alleged incident, his mother had run out of OxyContin medication and was smoking heavily. The accused also stated that his mother was "paranoid" about his ex-partner moving into the residence.

70. In respect of 13 March 2018, the accused gave evidence that an argument had occurred between himself and his mother over her requesting a cigarette. The accused denied that any of the conduct alleged to form Counts 1 and 2 had in fact occurred. In the course of the argument, the accused alleged that EC had said words to the effect of "I'll fix you, I'll go and tell the fucking neighbours that you're keeping me prisoner and bashing me up". The accused's evidence was that he then left to his car to look for cigarettes and upon his return noted his mother was no longer there, at which point he became concerned that his mother would follow through on her threat and that he would be arrested. The accused then took his daughter and dog and left to a friend's house, where he stayed for a number of weeks.

71. The accused testified that after some time he returned with his daughter to live with EC and he recommenced speaking with her. Upon learning that the police were looking for him, he gave his phone number to EC for her to provide to the police. The accused stated that he was lying in bed with a kidney condition, unable to stand when he was arrested on 9 June 2018.

72. At the close of both the Crown and defence cases, counsel for the accused, Mr Thomas, made an application for a directed acquittal on both Counts 1 and 2.

73. Mr Thomas submitted that the only evidence capable of satisfying the elements of the offences was to be found in the recorded interview between EC and the police on 13 March 2018. This it was submitted was insufficient to establish the requisite elements.

74. As to Count 1, Mr Thomas submitted that evidence underpinning the Crown's case was, at its highest, included in the following exchange from the recorded conversation between EC and Constables Mesman and Polosak:

Q23: And when he was squeezing your neck, how hard was he squeezing it?

A: Ah, fairly had [sic], but he hasn't left any bruises or anything. But fairly for my neck and his hands.

R v Green

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (226 paragraphs)

R v Green (No 3) [2019] ACTSC 96 (11 April 2019)

Parties

Legislation Cited (6)

Cases Cited (4)