R v Schwenke

The statutory provisions

1. Section 37 of the Act carries, as its title 'Choking, suffocation and strangulation'. The provision falls within Division 6 of Part 3 of the Crimes Act. Division 6 is titled 'Acts causing danger to life or bodily harm' and Part 3 generally deals with 'Offences Against the Person'.
2. Section 37(1A) provides: "A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person's consent."
3. Section 37(1) provides that: "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."
4. Section 37(2) provides that: "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."
5. There is no express definition of the word 'chokes' where it appears in these provisions in Division 6 of Part 3, or elsewhere within the Act.
6. Section 37(1A) is a recent provision in the legislation. It was introduced into the Act by the Crimes Legislation Amendment Act 2018 (NSW).
7. In the Second Reading Speech of the Attorney-General, when introducing the legislation, it was said that the general purpose of s 37(1A) was to "create a new, simpler offence of strangulation to capture domestic violence incidents". (Second Reading Speech, Crimes Legislation Amendment Bill, Legislative Assembly, 17 October 2018).
8. The Attorney-General said: "First, the Crimes Legislation Amendment Bill 2018. Schedule 3[1] to the Crimes Legislation Amendment Bill 2018 amends section 37 of the Crimes Act 1900 to introduce a new, simpler strangulation offence - namely, intentionally choking, suffocating or strangling a person without consent. The maximum penalty for the offence will be five years imprisonment. Currently, section 37 of the Crimes Act criminalises intentionally choking, suffocating and/or strangling a person so as to render the person unconscious, insensible or incapable of resistance, if the perpetrator either: is reckless as to rendering the person unconscious, insensible or incapable or incapable of resistance; or does so with the intention of committing or assisting another person to commit another indictable offence. However, a 2017 statutory report of the NSW Domestic Violence Death Review Team (DVDRT) suggested that, in the context of domestic violence, choking, suffocation and strangulation often occur without an intention to render the victim unconscious, insensible or incapable of resistance, or to commit another indictable offence. As a result, section 37 does not always capture domestic violence strangulation. This is problematic because research shows domestic violence strangulation is a red flag for future abuse and fatality. Research also finds that women are almost eight times more likely to be killed by an intimate partner if that person has previously strangled them. In over a quarter of intimate partner homicides the domestic violence abuser has strangled the domestic violence victim prior to the fatal assault. Where the intention currently required by section 37 offences is absent in the domestic violence context, offenders may instead be charged with lesser offences like common assault, the maximum penalty for which is two years. This indicates that existing sentences are ill suited to providing an appropriate criminal justice response to, and red flag for, domestic violence strangulation. The new offence introduced by the Crimes Legislation Amendment Bill 2018 addresses this gap. It 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."

General approach to the interpretation of penal provisions

1. Section 33 of the Interpretation Act 1987 (NSW) provides that: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
2. In The Queen v A2 (2019) 373 ALR 214; [2019] HCA 35, when construing another offence under the Act, Kiefel CJ and Keane J said (citations omitted): "[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. [34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight. [35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. [36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. [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. ……. [52] A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction."

Other cases

1. Counsel for the accused drew the Court's attention to two authorities, which construed legislation in another state and territory.
2. The first decision was that of the Supreme Court of the Australian Capital Territory in R v Green (No.3) [2019] ACTSC 96 (11 April 2019) ('Green'), which construed s 28(2)(a) of the Crimes Act 1900 (ACT); a provision which relevantly provided that a person who intentionally and unlawfully chokes, suffocates or strangles another person is guilty of an offence. Loukas-Karlsson J construed (at [46]) the word 'chokes' to mean the 'stopping of the breath' and expressly preferred (at 47) that construction to an alternative construction being 'impeding or restricting the breath'. Counsel for the accused adopted this construction for the meaning of the word 'chokes' in s 37(1A).
3. The second decision was of Coker DCJ in the District Court of Queensland in R v AJB [2019] QDC 169 (30 August 2019) ('AJB'). Coker DCJ was construing s 315A(1)(a) of the Criminal Code (Qld) which made it a crime if a person "unlawfully chokes, suffocates or strangles another person, without the other's consent", in combination with other elements of the offence relating to the domestic violence context in which the unlawful act occurred. His Honour followed (at [42]-[44]) the construction of Loukas-Karlsson J in Green in relation to the provision before the Court in determining that choking meant the 'stopping of breath'.
4. A subsequent decision which neither the accused nor Crown alluded to is R v HBZ [2020] QCA 73 ('HBZ'). In that case, the Queensland Court of Appeal also construed s 315A(1)(a) of the Criminal Code (Qld). The Court of Appeal distinguished Green and construed the element in a different fashion than the District Court had construed it in AJB. It construed (at [57]-[59]) the word "chokes" to mean an act by the perpetrator which hindered or restricted breathing without the act necessarily encompassing the actual stopping of a person's breathing.
5. At [58], the Court of Appeal specifically indicated that it was not choking if the perpetrator "merely puts his or her hands to the neck of the victim … there must be some pressure that results at least in the restriction of the victim's breathing."
6. On the facts in HBZ, the Court of Appeal noted that there was evidence by the complainant of her struggle to breathe, her inability to speak, black dots in her vision, pain in her chest, and a feeling of disorientation from which the trier of fact could infer a restriction in her breathing, as a result of the accused's hand being around the complainant's neck ([58]).

Parties' submissions

1. Counsel for the accused urged the Court to construe "chokes", in s 37(1A) of the Act, to mean the stopping of breath, consistently with the decisions in Green and AJB. He cited the concession made by the Crown in Green, with reference to the provision at issue in that case, that 'choke' was defined in the Macquarie Dictionary Online (which Loukas-Karlsson J identified as being the "most authoritative" dictionary) as being to 'stop the breath' (Green at [25]).
2. But even if that submission was not accepted, and the word should be construed (in alignment with HBZ) that it was enough that there be a restriction on breathing, taking the Crown case at its highest, there was no evidence of any restriction on the complainant's breathing.
3. The Crown submitted that Green (and by extension, AJB) does not assist the Court, as it concerned differently worded legislation. It submitted that the word 'chokes' should be interpreted by its plain meaning, and that plain meaning was sufficiently broad to encompass a person putting his hands around another's throat in certain circumstances. The Crown argued that s 37(1A) must be construed in a way which gives it different work to do when set against the operation of ss 37(1) and (2).
4. The Crown emphasised that the provision had to be construed purposively, with reference to the extrinsic material I have identified. This material indicated that the legislative target was to proscribe acts of choking or strangulation which fell short of the serious consequences (such as loss of consciousness) referred to in s 37(1) and (2), since it was recognised that acts of violence might be a 'red flag' for worse things to come in the domestic violence context.
5. As indicated, the Crown did not put any affirmative construction on what the word 'chokes' means. The Crown prosecutor submitted that, like the expression 'beyond reasonable doubt', the Court should refrain from essaying any definition and leave its construction to the jury.

Textual considerations

1. I accept that, in the absence of express definition, the process of construing the word 'chokes' in s 37(1A) is to commence by giving the word its plain and ordinary meaning. However, its meaning is a matter of legal interpretation and it is appropriate for a jury to be directed as to its meaning.
2. Neither the accused nor the Crown made any submission that the meaning of 'choke' is affected by the proper interpretation of the other words in s 37, being to 'strangle' or to 'suffocate'.
3. I accept, as Loukas-Karlsson J did in Green, that a dictionary definition of 'choke' includes an act to cause another person to stop breathing. However, contrary to the accused's submission, I do not regard the Crown's 'concession' in Green that it constituted a definition as amounting to a concession that it was the only definition that was available. One definition of the word in the Oxford English Dictionary (Online) is what "impedes respiration". Further, whilst I accept that some assistance may be received by dictionary definitions of the word, like Loukas-Karlsson J, I am loath to accept that they could be determinative.
4. In the absence of express definition of 'chokes' it is difficult to apply a purely textual, or literal, interpretation of 'chokes' in the provision. But part of the linguistic context is its juxtaposition alongside ss 37(1)-(2) of the Act. A basic maxim is that words used in one provision are to be construed harmoniously when the word is used in another. Each of ss 37(1A), 37(1) and 37(2) use the word choke, or some derivative of it. Where the word appears in each provision, it means the same thing.
5. I accept the Crown's submission that s 37(1A) must have some separate work to perform to s 37(1) and (2). To my mind, s 37(1) and (2) are directed to the perpetrator's intention to bring about certain specifically enumerated serious consequences from the act of choking (or strangulation or suffocation).
6. Section 37(1A) appears to be directed to proscribing conduct in which the perpetrator does not have the intention of bringing about the consequences in s 37(1) or (2). The text suggests that it is enough that the intention is to merely choke (or strangle or suffocate) without any further end in mind.

Context

1. These textual considerations are, I consider, supported by context, as evidenced by the extrinsic material I have referred to. The Attorney-General cited research of the NSW Domestic Violence Death Review Team (DVDRT) which indicated that the existing provisions in ss 37(1) and (2) gave rise to a lacuna in the domestic violence context, in that where a perpetrator chokes, strangles or suffocates another person, without an intention of generating the consequences in those particular provisions, then prosecutorial authorities had to fall back upon general offences against the person, such as common assault, which were inapposite to protecting victims in the domestic violence context.
2. Section 37(1A) broadly reflects parliament's intention to act upon the findings of the DVDRT.
3. The mischief sought to be addressed was that the bare fact of intentional choking, strangulation or suffocation, without the serious consequences identified in ss 37(1) or (2), may itself be a harbinger of potential deaths in the setting of domestic violence, but the existing provisions in the criminal law for the proscription of domestic violence and the protection of victims were regarded as inadequate.

Purpose

1. I accept that the Court's task is to give the construction best suited for the purpose of the legislation, having regard to s 33 of the Interpretation Act. However, the difficulty is identification of what that purpose is. It is not enough that the purpose is identified at such a high level of generality as to be the protection of potential victims of domestic violence.
2. Purpose is, desirably, located in the text, but recourse may be made to the extrinsic material to identify or illuminate purpose in the text. It is improper to ignore the text and instead locate a purpose from extrinsic material alone.
3. In this case, purpose is located in the extrinsic material: all of the examples identified as making out the physical element of choking in s 37(1A) by the Attorney-General involve an act by a perpetrator which, at least, restricts or hinders a person breathing and may include, but does not necessarily require, the person stopping breathing. In my opinion, 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. To confine the concept to conduct which actually stops the victim breathing would be too narrow a construction where the object is generally to deter inherently dangerous conduct which, if repeated, would result in death or serious injury. A construction emphasising the difficulty in breathing, because of restriction or hindrance, rather than just cessation of breathing, is more consistent with legislative purpose. I note that in the examples given by the Attorney-General, in the Second Reading Speech, emphasis was placed on the provision applying to a "broad range of conduct".
4. There is an established principle of construction that where legislative provisions across different states are identical, there should be conformity of decisions which construe the provisions: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492. I acknowledge that such other decisions are not controlling: Marshall v Director-General of Department of Transport (Qld) (2001) 205 CLR 603 per McHugh J at [62].
5. In my view, the Queensland Court of Appeal's construction of the word 'chokes' in s 315A(1)(a) of the Criminal Code is instructive, even if the provision as a whole is not identical to s 37(1A). As Loukas-Karlsson J noted in Green (at [33]-[36]), s 315A of the Criminal Code (Qld) was enacted at a reasonably proximate time to provisions in other jurisdictions across the nation that held the common purpose of augmenting protections to victims of domestic violence. The element in section 315A(1)(a) of the Criminal Code is substantially similar in effect to s 37(1A), even if the offence under s 315A(1) of the Code carries, essentially, as an additional express element (by s 315A(1)(b)), that the act occurs in the domestic violence setting, and substitutes for 'intentional' the word 'unlawful', when compared to s 37(1A) of the Act.
6. But where the Court of Appeal in HBZ said, in [56], that the gravamen of s 315A is the deterrence of an isolated act of choking (or strangling or suffocating) which may not result in serious injury but which if repeated, could result in death or serious injury, to my mind, the same purpose is apparent in s 37(1A) of the Act. The Attorney-General spoke in substantially these terms in his Second Reading speech.
7. Given the slight differences in the elements of the offence, as between s 315A(1) of the Criminal Code and s 37(1A) of the Act, there is arguably lesser scope for the Marlborough Gold Mines principle. Even so, I consider, with respect, that the Queensland Court of Appeal's approach, being that the act of choking requires at least hindering or restricting a person's breathing is both instructive and its reasoning persuasive. It accords with a plain and ordinary understanding of the word, or expression, promotes the purpose of offence (in comparison with the offences in s 37(1) and (2)) and even reflects or is consistent with the extrinsic material as that material illuminates its textual meaning.

Construction of penal provision

1. In The Queen v A2, Kiefel CJ and Keane J noted (at [52]) that whilst its force may have been diminished, the tenet of statutory interpretation that a purposive interpretation of a penal provision may result in an ambiguity which may be resolved in favour of an accused person remains pertinent to the process of construction, where other processes have been exhausted.
2. In Green, which was decided before The Queen v A2, Loukas-Karlsson J was influenced by this maxim in preferring a construction of the provision as necessitating proof that breathing was stopped ([43(g)]). For reasons I have indicated, I respectfully prefer the approach of the Queensland Court of Appeal.
3. To construe s 37(1A) in such a way as to mean that it encapsulates hindering or restricting breathing, even though it is a broader construction to stopping breathing altogether, may widen the scope of liability for offending, but is not such a 'loose' construction which their Honours were concerned to avoid.
4. In my view, the tenet of construction that penal provisions might be construed narrowly, in favour of an accused, when ambiguous, is not engaged here.

Application to the facts

1. Taking the Crown's case at its highest, that is if the complainant's evidence was accepted, there were aggressive and threatening acts of actual and violent conduct by the accused towards the complainant in the context of a domestic relationship. One of the acts, which gave rise to count 2, was the accused's acts of placing his hands on the complainant's throat and, at the same time, threatening to kill her. Plainly there was menace in his acts and his words. But according to the Crown case, the complainant was still capable of speaking: she asked that the accused stop.
2. It is apparent from the complainant's DVEC that her complaint of an act of the accused of putting his hands on the complainant's throat merged into a complaint about the accused using his arms to wrap them around the complainant's head after she had slipped her head out of his hands. It may not be easy to characterise a person wrapping his or her arms around another's head as a means of 'choking' her - arguably it may be more apposite to describe it as an act of strangling or suffocating - but assuming in the Crown's favour that it could, it was notable that when the complainant was asked if she suffered any lack of consciousness, she denied that she had. Further, although she said that wrapping of the accused's arms around her head endured for a 'minute or two' and although she asked the accused to stop, nothing was said by the complainant about the effects of the accused either grabbing the complainant's throat by his hands, or grabbing her head from behind with his arms, upon her capacity to breath, other than her experiencing a sore neck. (MFI 3, A97-107, 116)
3. There was, indeed, no evidence led from the complainant which would indicate that she was hindered or restricted in her breathing, of the kind that was apparent in HBZ. In fact, other than the obvious terror that the act of the accused grabbing her throat was likely to instil in the complainant, the only evidence by her of the physical effects upon her from the accused's acts were that it, or they, left her neck feeling "sore". In terms of its physical effects, it appears that the complainant's evidence, in the state in which it was left, was not all that different in substance to the accused merely forcefully and aggressively touching her on the throat, or neck, with both hands; in a menacing context. At any rate, I respectfully agree with the Queensland Court of Appeal's view in HBZ, at [58], that there is no choking merely because a perpetrator puts his hands to a victim's neck (or throat), even if the physical effect was that the victim was left with a sore neck. There needs to be, rather, pressure that, at least, results in a restriction in the victim's breathing.
4. The Crown's case, taken at its highest, does not establish that the accused's act hindered or restricted (at least) the complainant's breathing. There is therefore a defect in the evidence of the Crown such that it cannot sustain the element of choking which is an essential element in count 2.
5. Accordingly, I uphold the accused's application and will direct the jury to acquit the accused on count 2.

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