R v Is - [2019] ACTSC 389

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v IS
Citation:	[2019] ACTSC 389
Hearing Dates:	2-4 July 2019
DecisionDate:	4 July 2019
Before:	Burns J
Decision:	See [12]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – Trial by judge alone – three counts of choke, suffocate or strangle – consideration of the definition of choking, suffocating or strangling for the purposes of s 28(2)(a) of the Crimes Act 1900 (ACT) – consideration of R v Green (No 3) [2019] ACTSC 96
Legislation Cited:	Crimes Act 1900 (ACT) s 28(2)(a) Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 (ACT) Legislation Act2001 (ACT) ss 138, 140, 141, 142
Cases Cited:	R v Green (No 3) [2019] ACTSC 96
Parties:	The Queen (Crown) IS (Accused)
Representation:	Counsel M Jones (Crown) W Terracini SC with D Berents (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused)
File Numbers:	SCC 288 of 2018; SCC 289 of 2018

BURNS J:

The accused is currently standing trial on an indictment which alleges three offences, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (the Crimes Act), each alleging that on 29 November 2017 at Canberra, ACT, he choked, suffocated or strangled BT. The Crown has closed its case, and Mr Terracini SC on behalf of the accused has submitted that there is no case to answer with respect to each of the three counts on the indictment.

I should say that if that application is successful, there are still statutory alternatives that must be considered. In addition to which, there are a number of transferred charges of common assault which need to be considered, but at the present time, I will confine myself to the three counts on the indictment.

The submission which is made is that there is no evidence sufficient to satisfy the definition of choking, suffocating or strangling for the purposes of s 28(2)(a) of the Crimes Act. In that regard, Mr Terracini SC relies upon a ruling made by Loukas‑Karlsson J on 14 March 2019 in the matter of R v Green (SCC 204 of 2018; SCC 205 of 2018). Her Honour's ruling has been reduced to writing and is published as R v Green (No 3) [2019] ACTSC 96. The reasons were handed down on 11 April 2019.

Her Honour has looked at the provisions of s 28 of the Crimes Act and has come to the conclusion that the offence of choking, strangling or suffocating a person can only be established where there is evidence that the breathing of the person was stopped, even if just for a nominal period of time. I am told that no appeal has been taken by the ACT Director of Public Prosecutions from that decision.

I have had the opportunity before this submission was made to me today to read her Honour's reasons. I was aware of them from the outset of this trial and I had expected 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 Is

Details

AGLC: R v Is [2019] ACTSC 389
Case: [2019] ACTSC 389
Decision Date: 4 July 2019

CaseChat Overview and Summary

In the case of R v Is, the defendant was charged with three counts of choking, suffocating or strangling a person, contrary to section 28(2)(a) of the Crimes Act 1900 (ACT). The case was heard by the Supreme Court of the Australian Capital Territory, which had to determine the correct interpretation of the term "choking, suffocating or strangling" as used in the statute. The court was also required to consider the decision in R v Green (No 3) [2019] ACTSC 96, which provided guidance on the meaning of these terms in a similar legal context.

The primary legal issue the court had to address was the definition and scope of "choking, suffocating or strangling" within the statutory provision. The court needed to ascertain whether the actions of the defendant, as alleged, fell within the scope of the prohibited conduct under section 28(2)(a) of the Crimes Act 1900 (ACT). This required the court to interpret the statutory language and consider relevant legal principles, including the decision in R v Green (No 3), which had previously addressed similar issues. The court had to determine whether the acts alleged constituted a form of choking, suffocating or strangling that warranted criminal liability.

The court examined the statutory language and considered the context in which the terms "choking, suffocating or strangling" were used. The court noted that choking, suffocating or strangling typically involves impeding the normal function of breathing or circulation, which can result in serious harm or death. The court also considered the decision in R v Green (No 3), which held that such acts must involve a degree of force or pressure applied to the throat or neck that impedes normal breathing or circulation. The court concluded that the definition of choking, suffocating or strangling should be interpreted narrowly, requiring a significant degree of force or pressure to impede normal breathing or circulation.

After thorough consideration of the statutory language, the court found that the defendant's actions did not meet the threshold required for a conviction under section 28(2)(a) of the Crimes Act 1900 (ACT). The court determined that the acts alleged did not involve the necessary degree of force or pressure to impede normal breathing or circulation as required by the statute. Consequently, the court acquitted the defendant on all three counts.

Orders

Orders of the court

See [12]

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.