GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65

GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65 · Read the judgment on AustLII

Catchwords: Intentional choking – elements of the offence

In this decision, the CCA (Payne JA; Rothman and Harrison JJ agreeing) has declared that ‘intentionally chokes’ within the meaning of s 37(1A) of the Crimes Act 1900 means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head’. Moreover, the Court considers that it may be prudent for the Crown to adduce expert evidence in proof of that issue.

GS faced a trial for offences relating to domestic violence. The jury acquitted him of count 1, and the trial judge directed the jury to enter a verdict of not guilty on count 2. Relevantly, count 2 was for the offence of intentionally choking the victim, without her consent – an offence under s 37(1A) of the Crimes Act 1900. The Crown pursued an appeal against that directed acquittal; this summary only deals with that aspect of the matter (GS was also convicted of related summary offences, and he appealed – unsuccessfully – against both the convictions and sentence for those).

The intentional choking offence in s 37(1A) was introduced in 2018, and since then has typically been dealt with summarily (despite being an indictable offence). At issue is the meaning of the word ‘chokes’ in the phrase ‘intentionally chokes, suffocates or strangles another person without the other person’s consent’.

Relevantly to this appeal ground, the evidence from the complainant was that GS had jumped on top of her, grabbed her by the throat with two hands, and pushed her down into a lying position while saying ‘you’re gonna die’. His hands remained there for about a minute. She received bruising to her neck, which was sore for a couple of days, but she did not in evidence specifically say that her breathing was impeded by the assault, or that blood flow to her brain had been constricted. So the key issue was: is proof of an impediment to breathing or blood flow a necessary element of the offence in s 37(1A)?

At trial, influenced heavily by interstate authority, the trial judge had determined that there was a requirement that there be pressure that, at least, results in a restriction of the victim’s breathing. However, both parties on the appeal agreed that this was incorrect, and the parties were held to have been correct in that view (see [60]). The term ‘intentionally chokes’ should not be ascribed a narrow meaning. The relevant context strongly suggests that s 37(1A) is a broad offence intended to protect victims of domestic violence from controlling behaviours. The section was introduced in order to fill a gap in the legislation where, as a result of ‘intentional choking’, the victim was rendered unconscious, insensible, or incapable of resistance (at [61]).

However, it is not correct to say that any manual pressure, no matter how slight, and no matter where on the neck it is applied may amount to ‘intentional choking’ (at [62]). For example, the text, context, and purpose of the provision do not permit a conclusion that placing a hand, for example, on the back of the neck of another person, in a way that does not in any away affect breathing or blood flow, amounts to intentional choking (at [61]). It is consistent with the language used in its statutory context to require proof of conduct capable of affecting the breath or blood flow to or from the head whilst ‘choking’ (at [64]). A practical consequence of this construction is that it would be prudent for the Crown to call medical evidence in a case involving s 37(1A) so as to address the question of whether pressure applied to a victim’s neck was capable of affecting the breath of the person or the flow of blood to or from the head; it may be that only very slight pressure being applied to some areas of the neck of a victim may be capable of having that effect. However, to be clear, simply to place any slight pressure on the neck, in a way not capable of affecting the breath or the flow of blood to or from the head, even if accompanied by a threat to apply further pressure in the event of non-compliance, does not amount to intentional choking with the meaning of s 37(1A) (at [65]). On the other hand, it may be that in the present case, even without medical evidence, if the jury accepted the bruising on the complainant’s neck was the result of pressure applied by GS, and that the bruising was the result of a restriction of blood flow to or from her head, that may have been sufficient – but it is unnecessary to determine that issue here (at [66]).

In all the circumstances, error having been established, the CCA set aside the acquittal on the charge of intentionally choking, and declared that ‘intentionally chokes’ within the meaning of s 37(1A) means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head’. However, in the exercise of the residual discretion, for reasons not presently important the Court declined to remit the matter for retrial (at [107]).