R v Fraser - [2020] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRASER
[2020] SADC 127
Ruling of Her Honour Judge Fuller
2 September 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CHOKE, SUFFOCATE OR STRANGLE A PERSON IN A DOMESTIC SETTING - ELEMENTS OF THE OFFENCE - MENS REA - RECKLESSNESS
The accused pleaded guilty to the offence of choking, suffocating or strangling a person in a domestic setting contrary to s 20A of the Criminal Law Consolidation Act 1935. Defence counsel argued that an offence against s 20A is one of strict liability.
Held: Presumption of mens rea not displaced. Intention or recklessness must be proved. An offence of unlawful choking, suffocating or strangling under s 20A requires proof of an intention to stop, significantly hinder or restrict the alleged victim's respiration or proof that the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would result in the complainant's respiration being stopped, significantly hindered or restricted.
Criminal Law Consolidation Act 1935 ss 20A, 21 and 29; Acts Interpretation Act 1915 (SA) s 22, referred to.
He Kaw Teh v The Queen (1985) 157 CLR 523; R v HBZ [2020] QCA 73; The Queen v A2 [2019] HCA 35; Lim Chin Aik v The Queen (1963) AC 160; Sweet v Parsley (1970) AC 132; Cameron v Holt (1980) 142 CLR 342; Brend v Wood (1946) 62 TLR 462; EFN v Lehmann & Anor (2017) 265 A Crim R 442; Crabbe v The Queen (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585; Ducaj v The Queen [2019] SASCFC 152; DPP Reference No 1 of 2019 [2020] VSCA 181, considered.

R v FRASER
[2020] SADC 127

Alan Matthew Fraser is charged on Information with an offence against s 20A of the Criminal Law Consolidation Act 1935 (“CLCA”). The particulars of that offence are that on 27 June 2019, being or having been in a relationship with AJT, Alan Matthew Fraser unlawfully choked, suffocated or strangled AJT without her consent. He pleaded guilty to this charge on 10 January 2020 and was committed to the District Court for sentence.
During sentencing submissions, defence counsel articulated the basis upon which the accused had entered a plea of guilty. It was submitted that:
…he squeezed the victim’s neck for about three seconds. He did not intend to interrupt her breathing, he simply intended to provoke the victim into opening her eyes, although he accepts he brought about an interruption to the victim’s breathing.[1]
[1] Submissions for the Defendant, filed 14 July 2020, paragraph 1.9.
Defence counsel then raised the issue of whether mens rea was an essential element of an offence against s 20A CLCA and made an application that I rule on this issue. The prosecution did not oppose the application for a ruling as it was common ground that there is no Supreme Court authority that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fraser

Details

AGLC: R v Fraser [2020] SADC 127
Case: [2020] SADC 127
Decision Date: 2 September 2020

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of Queensland. The respondent, Fraser, was convicted of an offence under section 320(2)(a) of the Queensland Criminal Code. The offence arose out of an incident in a domestic setting where Fraser choked his partner. Fraser appealed his conviction, arguing that the offence required proof of a subjective mens rea of recklessness, and the trial judge had misdirected himself on this point. The appeal was dismissed by the Supreme Court. Fraser's conviction was upheld.

The key issue before the court was whether recklessness, rather than intention, was the required mens rea for the offence of choking, suffocating or strangling a person. The court considered the language of the relevant statute, the common law precedents, and the principles of statutory interpretation. The court found that the offence required recklessness rather than intention. However, it found that the trial judge had correctly directed himself on the required mens rea, and there was no misdirection. The appeal was dismissed.

Orders