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 has considered the elements of this offence, and, in particular, whether mens rea is an element of the offence.
In summary, it was defence counsel’s submission that an offence against s 20A is one of strict liability and that the prosecution need not prove that the accused intended to stop, significantly hinder or restrict the alleged victim’s breathing. The prosecution argued that an essential element of the choking offence is that the accused intended to stop, significantly hinder or restrict the alleged victim’s breathing and the prosecution must prove this beyond reasonable doubt. Defence counsel suggested that if the offence was one of strict liability then, on the accused’s instructions, the plea was properly entered. However, if the offence was one requiring proof of an intention to stop, significantly hinder or restrict the alleged victim’s breathing, the plea of guilty ought not to have been entered.
Section 20A CLCA provides:-
20A—Choking, suffocation or strangulation in a domestic setting
(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.
Maximum penalty: Imprisonment for 7 years.
(2)     However, conduct that is justified or excused by law cannot amount to an offence against this section.
(3)     Two people will be taken to be "in a relationship" for the purposes of this section if
(a)     they are married to each other; or
(b)     they are domestic partners; or
(c)they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of 1 affects the other; or
(d)1 is the child, stepchild or grandchild, or is under the guardianship, of the other (regardless of age); or
(e)1 is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship with the other under paragraph (a), (b) or (c) (regardless of age); or
(f)1 is a child and the other is a person who acts in loco parentis in relation to the child; or
(g)1 is a child who normally or regularly resides or stays with the other; or
(h)     they are brothers or sisters or brother and sister; or
(i)they are otherwise related to each other by or through blood, marriage, a domestic partnership or adoption; or
(j)they are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group; or
(k)     1 is the carer (within the meaning of the Carers Recognition Act 2005)               of the other.
(4)     If
(a)a jury is not satisfied beyond reasonable doubt that a charge of an offence against this section has been established; but
(b)the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of an offence of assault; and
(c)the jury is satisfied beyond reasonable doubt that the offence of assault has been established, the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of assault.
Defence counsel argued that an offence against s 20A is comprised of the following elements: -
·       That the accused is, or has been, in a relationship with the complainant.
·       That the accused intentionally did an act to the complainant.
·       That act choked, suffocated or strangled the complainant.[2]
·       The complainant did not consent to be choked, suffocated or strangled.
[2]    Prosecution and defence counsel both contended that to prove that the accused choked, suffocated or strangled the complainant it is necessary to prove that the accused stopped, significantly hindered or restricted the complainant’s breathing.
Defence counsel argued that an offence against s 20A is one of strict liability. By reference to the three matters set out by Gibbs CJ in He Kaw Teh v The Queen,[3] as relevant to the consideration of whether or not Parliament intended to punish a person even in the absence of some ‘blameworthy state of mind’, defence counsel relied upon the following: -
·The absence of any explicit reference to intention in s 20A. It was argued that this was a deliberate omission. In the alternative, the absence of reference to intention was a neutral factor.
·The intent behind the enactment of this offence was to eradicate domestic violence and to punish acts which are a predictive risk factor for future more severe domestic and family violence and homicide.
·The purpose of the enactment was not simply to deter a person from engaging in the prohibited conduct but to compel him to take preventative measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A person in a domestic relationship can take effective precautions to avoid the possibility of engaging in the act of choking, suffocating or strangling.[4]
[3] (1985) 157 CLR 523 at 529. The three considerations are the words of the statute, the subject matter with which the statute deals and the extent to which imposing a strict liability upon a defendant will aid in the enforcement of the legislation.
[4] It is important to note that the last of the three considerations referred to by Gibbs CJ and explained by Brennan J in He Kaw Teh relate to the classification of the offence as one of absolute or strict liability. That is, the question was whether treating the offence as one of strict or absolute liability would assist in the enforcement of the legislative scheme. It was in that context that consideration had to be given to whether any good purpose would be served by punishing a person who honestly and reasonably believed in circumstances that, if true, would mean the relevant conduct was not in breach of the relevant provision.
Prosecution initially argued that the elements of an offence under s 20A are as follows:
·The defendant has been in a relationship with the victim.
·The defendant applied force by choking, suffocating or strangling the victim with the result that the victim’s respiration was stopped, hindered or restricted.
·The defendant applied force intending to stop hinder or restrict the victim’s respiration.
·The victim did not consent to being choked, suffocated or strangled.
Consistent with the approach of the Court of Criminal Appeal in R v HBZ [2020] QCA 73 and the High Court in The Queen v A2 [2019] HCA 35, and s 22 of the Acts Interpretation Act 1915 (SA), the prosecution argued that a purposive approach should be taken when construing s 20A. It was contended that the element of mens rea is implicit in s 20A by reason of the nature of the offence itself, the absence of any requirement to prove harm and the high maximum penalty prescribed. It was further submitted that it would be a curious result if the offence of choking was one of strict liability, when the alternative verdict of the lesser offence of assault requires proof of an intentional application of force.
Mens rea
It is firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication: Lim Chin Aik v The Queen (1963) AC 160[5]; Sweet v Parsley (1970) AC 132[6]; Cameron v Holt (1980) 142 CLR 342.[7]
[5]    At 173.
[6]    At 149,152,156.
[7]    At 346,348.
In Brend v Wood (1946) 62 TLR 462 Lord Goddard CJ said:
It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.[8]
[8] At 463.
In He Kaw Teh, Brennan J said:
It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence. [9]
[9] At 567.
In He Kaw Teh, Brennan J explained what is meant by the external elements of an offence:
Criminal responsibility depends not only upon a person's act or omission but also upon the circumstances in which the act is done or the omission made, usually upon his state of mind at that time and sometimes upon the results of his act or omission. However, the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These elements - conduct, circumstances and results - are what Dixon C.J. in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56, at p 59, called "the external elements necessary to form the crime". When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind.[10] [Emphasis added]
[10] At 564-565.
The concept of intention was summarised succinctly by Brennan J in He Kaw Teh using the example of an offence of assault.
Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so - to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B. Intent, in another form, connotes knowledge. This appears more clearly if we divide an action, somewhat artificially, into a mere movement and the circumstances that are an integral part of the action and which give it its character. When A strikes B, his action can be divided into A's movement of his fist and B's presence in the path of A's movement. Although A's movement may be voluntary, he is not said to strike B intentionally unless he knows that B (or someone else) is in the path of his moving fist. If mens rea were imported into an offence defined as striking another - a definition that does not include a result - two states of mind would normally be involved: voluntariness of movement and an intention to strike another - and intention is, for all practical purposes, established by knowledge that another person is, or is likely to be, in the path of the movement. If the definition is extended to include a result - causing bodily harm - the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm.[11]
[11] At 569.
The difference between basic and specific intent was also crystallised by Brennan J in He Kaw Teh:
General intent and specific intent are also distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence.
…
Voluntariness, general intent and specific intent are three categories of mens rea that may be (but are not always) mental elements applicable to the external elements of an offence. Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied. When a specific intent is expressed to be an element, it is ordinarily expressed to apply only to results. The definition of circumstances attendant upon but not an integral part of the act involved in the offence may (but does not always) imply another mental element: knowledge or the absence of an honest and reasonable but mistaken belief as to the existence of those circumstances. The distinction between the act and the circumstances which attend its occurrence is frequently of no moment, because for all practical purposes the same mental element - knowledge - is the requisite mental element ordinarily applicable both to the act and the circumstances. But if there be a legislative intention to apply a mental element to the circumstances different from the mental element applicable to the act involved in the offence, it is necessary to decide what circumstances are defined to be an integral part of the act (to which intent and therefore knowledge will ordinarily apply) and what circumstances are defined to be merely attendant (to which no mental element may be intended to apply or to which a mental element less than knowledge may be intended to apply). One of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence is the identification of the prohibited act on the one hand and the circumstances attendant on the doing of that act on the other. [12]
[12] At 569-571.
Analysis
The defence and prosecution submissions assume that the offence in s 20A creates two separate elements that must be established to prove the actus reus, namely the physical act and the consequence of that physical act. Defence counsel contended that, although in almost every case there will be an application of force by the accused to the complainant, a complainant may be choked, suffocated or strangled without the application of any direct force. An example of this was posited by North J in EFN v Lehmann & Anor (2017) 265 A Crim R 442.[13] It was the luring of a person into an airless chamber causing suffocation.
[13] At footnote 4.
In my view, the actus reus of choking, suffocating or strangling is the stopping, or significantly hindering or restricting of the complainant’s breathing, whether by application of force or by other means.
In R v HBZ [2020] QCA 73, Mullins J focussed on the act of choking, suffocating or strangling:
There is no choking, if the perpetrator merely puts his or her hands to the neck of the victim. In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as a result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing was not a separate element of the offence, but the evidence required to prove the act of choking.[14] [Emphasis added]
[14] At [58] per Mullins JA with whom McMurdo and Boddice JJ agreed.
I agree.
Even where the actus reus does not involve the application of pressure or force, for example, the luring of the victim into an airless chamber, the placing of a plastic bag over the victim’s face, or the administration of a poison that causes an anaphylactic reaction, the resultant stopping or significantly hindering or restricting of the victim’s breathing is not a separate element of the offence but is the very evidence required to prove that the conduct (the luring, placing of the bag, the administration of the poison) was the act of choking, suffocation or strangling.

For these reasons I conclude that, if mens rea is an element of the offence, the intention accompanying the conduct must be an intention to stop or significantly hinder or restrict the victim’s breathing.
There is no express or implied exclusion of mens rea in s 20A. The offence in s 20A was created to avoid ‘relying on existing offences such as causing harm or serious harm, endangering life or attempted murder’.[15] All of those offences require proof of mens rea. In enacting s 20A as a substitute for those offences and in dispensing with any requirement to prove injury or harm and yet providing a maximum penalty of 7 years imprisonment, Parliament cannot have intended to dispense with the element of mens rea. However, the offence does not require proof of harm or injury and thus does not require proof of a specific intent with respect to the consequence of the prohibited conduct.
[15] South Australia, Hansard, House of Assembly, 24 October 2018, 3131 (The Honourable Vicki Chapman MP Deputy Premier and Attorney-General).
The very act the accused intends to perform must be to stop, significantly hinder or restrict the complainant’s breathing. The intention to choke, suffocate or strangle will generally be inferred from the conduct itself but may also be established by additional evidence.
Accordingly, I conclude that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s 20A of the CLCA. On a charge under that provision, the prosecution bears the onus of proving that the accused intended to choke, suffocate or strangle the complainant, that he, is intended to stop, significantly hinder or restrict the complainant’s breathing.
Recklessness
During the course of submissions, an issue arose as to whether the mens rea required for an offence against s 20A can include recklessness.
Recklessness is a species of intent or an alternative form of mens rea. The prosecution contends that an accused can be found guilty of an offence against s 20A where it is established that when the accused performed the actus reus, he foresaw that the stopping, significantly hindering or restricting of the alleged victims’ breath was a reasonable possibility.[16]
[16] The accused did not make any substantive submissions on this issue but simply noted that there is no Supreme Court authority on this point.
In Crabbe v The Queen (1985) 156 CLR 464 the High Court set out the test for recklessness on a charge of murder:
It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.[17]
[17] At 469-470. On the other hand, the fault element of recklessness for manslaughter is satisfied by foresight of possible consequences: Ducaj v The Queen [2019] SASCFC 152 at [15].
In R v Campbell [1997] 2 VR 585 the Court applied the test in Crabbe to the offence of recklessly causing serious injury. In their joint judgment, Hayne JA and Crockett AJA acknowledged that the decision by the High Court in Crabbe v The Queen was not directly applicable to the provisions under consideration, since Crabbe specifically concerned the elements of reckless murder. Nevertheless, their Honours considered that the ‘spirit’ of the decision in Crabbe ‘indicate[d]’ that the same definition of recklessness should be applied to the provisions in the Crimes Act then under consideration.’[18] Their Honours were influenced by the circumstance that the settled practice in Victoria was to direct juries as to foreseeability in terms of the awareness of the probability that the requisite injury would occur.[19]
[18] At 593.
[19] There has been a practice of directing juries in this way in Victoria for 25 years. In DPP Reference No 1 of 2019 [2020] VSCA 181 the Supreme Court of Victoria, constituted by a court of 5 Judges refused an application by the Director of Public Prosecutions to overrule Campbell and change the test to one of foreseeable possibility.
I do not consider that the absence of any reference to recklessness in s 20A is determinative of its application. As noted above, s 20A makes no reference to mens rea at all. Section 20A punishes conduct that is inherently dangerous, and which is an indicator of escalation to domestic homicide. It was created to avoid ‘relying on existing offences such as causing harm or serious harm, endangering life or attempted murder’.[20] All of those offences provisions provide for the alternative mens rea of recklessness, whether as the result of the application of common law or as specified in the particular offence provision.[21] In Ducaj v The Queen[22] Kourakis CJ said that the protean nature of the concept of recklessness is evident in various provisions of the CLCA in which it is employed.[23]
[20] South Australia, Hansard, House of Assembly, 24 October 2018, 3131 (The Honourable Vicki Chapman MP Deputy Premier and Attorney-General).
[21] In Dukaj v The Queen [2019] SASFC 152 at [50] Kourakis CJ, with whom Kelly J, Nicholson J and Peek agreed, held that on the fault element of reckless indifference in s 29, the jury should be directed that the prosecution must show that there was no good reason or adequate justification for the conduct.
[22] [2019] SASCFC 152 at [20]-[21].
[23] For the purposes of offences of actually causing physical or mental harm, recklessness is defined by s 21 of the CLCA as ‘causing harm or serious harm to another if the person ... is aware of a substantial risk that his or her conduct could result in harm or serious harm ... and engages in the conduct despite the risk and without adequate justification’. A similar definition is used for the purposes of the offence of shooting at police officers enacted by s 29A of the CLCA. In comparison, for a charge of rape, ‘reckless indifference’ is defined as being ‘aware of the possibility that the other person might not be consenting to the act’, but deciding to ‘proceed regardless of that possibility’.
Accordingly, I consider it unlikely that Parliament would have intended to exclude recklessness as an alternative basis for liability. However, I reject the prosecution submission that the test is one of the foresight of a reasonable possibility. The test of foresight of a reasonable possibility is a lower threshold than provided for in the statutory definition of recklessness in s 21 CLCA.
As there is no statutory definition of recklessness for the purposes of s 20A, and given the characterisation by Parliament of this offence as an indicator of escalation to domestic homicide, it is appropriate to apply the common law test for recklessness set out by the High Court in Crabbe.
I rule that the elements of the offence under s 20A are:
·At the time of the alleged offence the accused was or had been, in a relationship with the complainant.
·The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or significantly hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or significantly hinder or restrict the complainant’s respiration.
·The complainant did not consent to being choked, suffocated or strangled.
·The act of choking, suffocating or strangling the complainant was done without lawful justification.