R v IS [2019] ACTSC 389

Crimes Act 1900 (ACT) s 28(2)(a)

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

Legislation Act 2001 (ACT) ss 138, 140, 141, 142

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

SCC 288 of 2018; SCC 289 of 2018

1. The accused is currently standing trial on an indictment which alleges three offences, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (the Crimes Act), each alleging that on 29 November 2017 at Canberra, ACT, he choked, suffocated or strangled BT. The Crown has closed its case, and Mr Terracini SC on behalf of the accused has submitted that there is no case to answer with respect to each of the three counts on the indictment.

2. I should say that if that application is successful, there are still statutory alternatives that must be considered. In addition to which, there are a number of transferred charges of common assault which need to be considered, but at the present time, I will confine myself to the three counts on the indictment.

3. The submission which is made is that there is no evidence sufficient to satisfy the definition of choking, suffocating or strangling for the purposes of s 28(2)(a) of the Crimes Act. In that regard, Mr Terracini SC relies upon a ruling made by Loukas‑Karlsson J on 14 March 2019 in the matter of R v Green (SCC 204 of 2018; SCC 205 of 2018). Her Honour's ruling has been reduced to writing and is published as R v Green (No 3) [2019] ACTSC 96. The reasons were handed down on 11 April 2019.

4. Her Honour has looked at the provisions of s 28 of the Crimes Act and has come to the conclusion that the offence of choking, strangling or suffocating a person can only be established where there is evidence that the breathing of the person was stopped, even if just for a nominal period of time. I am told that no appeal has been taken by the ACT Director of Public Prosecutions from that decision.

5. I have had the opportunity before this submission was made to me today to read her Honour's reasons. I was aware of them from the outset of this trial and I had expected that this issue would arise. I do not propose to go through her Honour's reasons in detail, but her Honour has considered the history of the provision, she has undertaken a comparison between the provision in the Crimes Act and cognate provisions in other jurisdictions, she has also applied general principles relating to the interpretation of statutes and also, in particular, the interpretation of criminal statutes. In my opinion, there is nothing that I can discern in her Honour's reasons which is clearly wrong.

6. It has been submitted that her Honour was not entitled to take into account the material outside of the statute, which her Honour did take into account, because the provisions of s 138 of the Legislation Act 2001 (ACT) (the Legislation Act) were not satisfied. Section 140 of the Legislation Act says that "[i]n working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole". Section 141(1) generally provides that "[i]n working out the meaning of an Act, material not forming part of the Act may be considered". Section 142 sets out material that may be considered in the non-legislative context.

7. There can be no doubt that the material which was referred to by Loukas-Karlsson J, being the Explanatory Statement to the Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 (ACT) which inserted sub-section (a) into s 28(2) of the Crimes Act and the Presentation Speech made by the Minister at the time that the Bill was presented to the Legislative Assembly, are items that a Court is entitled to take into account in working out the meaning of an Act. The submission made by the Crown is that there was no need for this material to be taken into account because the provisions of the offence are not ambiguous or obscure.

8. I note that s138 provides that in pt 14.2 of the Legislation Act, which deals with key principles of interpretation, the phrase, "working out the meaning of an Act", means a number of different things, only one of which is resolving an ambiguous or obscure provision of an Act. In addition, it may also encompass confirming or displacing the apparent meaning of an Act or finding the meaning of the Act in any other case. Thus, it is clear that the Court has a very broad discretion in being able to refer to material outside of the Act itself, at least that material which is permitted by the Legislation Act, in concluding or working out the meaning of an Act, which I should also add includes the meaning of a provision of an Act.

9. In any event, I am satisfied that s 28(2)(a) of the Crimes Act itself is to some extent ambiguous. There can be no doubt that the gravamen of the offence found in the provision is directed towards interference with the breathing of a person; but the question is to what extent. Is it sufficient that the interference is of a nominal degree or is something more required? The dictionary definitions of each of the relevant terms potentially allow for a meaning of stopping the breathing of the person, or alternatively, something less than that, being a meaning that the breathing is simply interfered with.

10. Loukas-Karlsson J, accepting that that was the case, went to the, as I have said, Explanatory Statement and the Minister's Presentation Speech, and it seems tolerably clear from those sources that the intention was to encompass a situation where there was a cessation of breathing by reason of the choking, strangling or suffocation of the victim. Her Honour concluded that this was consistent with relevant principles in relation to the interpretation of criminal statutes.

11. The Crown had an opportunity to appeal that decision. It has not chosen to do so. In my view, there is nothing in the decision of her Honour which would lead me to conclude that it is clearly incorrect, and in my view her Honour was correct.

12. I rule that there is no case to answer with respect to each of the three counts on the indictment (CC2018/11541; CC2018/11543; SCCAN 2019/3725).

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.