R v Green (No 3)

Case [2019] ACTSC 96

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Green (No 3)

Citation:

[2019] ACTSC 96

Hearing Date:

4 March 2019 – 14 March 2019

DecisionDate:

14 March 2019

ReasonsDate:

11 April 2019

Before:

Loukas-Karlsson J

Decision:

See [85]-[88].

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –  application for directed verdict – whether defect in the evidence was present – absence of evidence of element of the offence – application granted

STATUTES – Interpretation – word and phrases – s 28 Crimes Act 1900 (ACT) - meaning of the words “choke”, “strangle” and “suffocate” – whether the offence requires the victim to have stopped breathing

Legislation Cited:

Crimes Act 1900 (ACT) ss 27, 28

Crimes Act 1900 (NSW) s 37

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

Criminal Code 1899 (QLD) ss 315, 315A

Criminal Code Act 1924 (TAS) s 168

Criminal Code Act 1983 (NT) s 175

Criminal Law Consolidation Act 1935 (SA) s 20A

Legislation Act 2001 (ACT) ss 137, 138, 139, 140, 141, 142

Cases Cited:

2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488

A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Aubrey v R [2017] HCA 18; 260 CLR 305

Beckwith v The Queen (1976) 135 CLR 569; 12 ALR 333

CIC Insurance Ltd v Bankstown Football Club ltd [1997] HCA 2; 187 CLR 384;

Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271

Doney v The Queen [1990] HCA 51; 171 CLR 207

Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503

House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498

Innes v R  [2018] NSWCCA 90

Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876; 270 ALR 65

Lansbury v R [1988] 2 Qd R 180; 33 A Crim R 12

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468

NSW v Slater [2018] NSWSC 274

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

R v Adams (No 6) [2016] NSWSC 1565

R v Bishop (1888) 88 4 WN (NSW) 107

R v Lavender [2005] HCA 37; 222 CLR 67

R v MCW [2018] QCA 241

R v MDB [2018] QCA 283

R v Osborne [1987] 1 Qd R 96

R v Peifeng Yu [2016] NSWDC 257

R v Simonds [2018] ACTSC 265

R v Van Duren [2017] ACTSC 132

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252

SAS Trustee Corp v Miles [2018] HCA 55; 361 ALR 206

SZTAL v Minister for Immigration and Border Protection; SZTGM v Same [2017] HCA 34;

Continue reading R v Green (No 3)

Sign in free to access the full text

Details
AGLC
R v Green (No 3) [2019] ACTSC 96
Case
[2019] ACTSC 96
Decision Date

CaseChat Overview and Summary

The case before the court involved the defendant, Green, who was facing charges under section 28 of the Crimes Act 1900 (ACT). The defendant was accused of choking, strangling, or suffocating a victim, and the dispute centred on the interpretation of these terms and whether the victim had to stop breathing for the offence to be constituted. The case was heard in the Supreme Court of the Australian Capital Territory.

The central legal issues before the court were whether there was a defect in the evidence presented, specifically whether the prosecution had failed to prove an essential element of the offence. The court also had to determine the precise meaning of the words "choke," "strangle," and "suffocate" as used in the statute. The defendant argued that the prosecution had not shown that the victim had stopped breathing, which they contended was a necessary element of the offence.

The court granted the defendant's application for a directed verdict, finding that there was a defect in the evidence. The court concluded that for the offence to be constituted, the victim must have stopped breathing. The prosecution had not provided evidence to this effect, and therefore, the court held that the jury should not consider the charge against the defendant. Consequently, the court ruled in favour of the defendant, dismissing the charge.

The final orders of the court are detailed in paragraphs [85] to [88] of the judgment. The court dismissed the charge against the defendant due to the defect in the prosecution's evidence and directed the jury to acquit the defendant on the basis of the insufficient evidence to prove that the victim had stopped breathing.

Orders

Orders of the court

See [85]-[88].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.