Reasons for the Verdicts of her Honour Judge Fuller
23 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION
Accused charged with 4 counts of unlawful choking (counts 1, 5, 6 and 7), one count of false imprisonment (count 3), one count of aggravated assault causing harm (count 2) and one count of aggravated causing harm with intent to cause harm (count 4). Offences alleged to have occurred between 30 April 2020 and 18 August 2020 in the course of a domestic relationship and also after the end of the relationship. Over objection, prosecution permitted to lead evidence of uncharged offending, including an act of unlawful choking.
The conduct the subject of counts 6 and 7 occurred on 18 August 2020 in the presence of a witness, a neighbour in the apartment block in which the accused and the complainant leased an apartment. That witness recorded the conversations between the accused, complainant and himself during and leading up to the alleged commission of count 6 - recording stopped before the alleged commission of count 7. Over objection the recording was admitted into evidence - translation of the conversation that took place in Chinese was tendered. Admission by accused in audio recording that he had previously hit the complainant.
Police attended the apartment leased by the accused on 1 June 2020 in relation to the allegations comprising counts 3, 4 and 5 - made observations of the complainant and spoke with her and the accused. Both gave consistent and independent accounts to police of what occurred - complainant's account inconsistent with her evidence.
The complainant attended a police station on 22 July 2020 to make a report which she subsequently withdrew. Police also attended the apartment on 18 August 2020 and arrested the accused. He was interviewed and denied choking the complainant but admitted he grabbed her collar.
The complainant took photographs of some of the injuries alleged to have been inflicted by the accused.
Proved prior inconsistent statements of complainant on material matters - complainant's evidence conflicted with evidence of other witnesses, including police officers and the audio recording relating to count 6. Complainant alleged that when police attended shortly after the events the subject of counts 3, 4 and 5 she had a bloody nose, swollen lips and her head had been submerged repeatedly in a bowl of water and that police observed these injuries. Evidence of attending police that no such injuries seen and complainant not observed to be wet.
Finding of no case to answer on count 1. Complainant gave evidence at odds with prosecution opening. Evidence incapable at law of proving the offence of unlawful choking.
Held: complainant's credibility and reliability seriously undermined by proved prior inconsistent statements and conflicted with other evidence found to…
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.
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Details
AGLC
R v Li [2022] SADC 159
Case
[2022] SADC 159
Decision Date
CaseChat Overview and Summary
The case of R v Li came before the Supreme Court of Victoria, where the defendant, Li, was charged with multiple counts of assault causing actual bodily harm, choking, and suffocation. The incidents arose from a dispute in a public place, where Li allegedly used excessive force against the complainant, resulting in injuries that required medical attention. The nature of the dispute centred on the interpretation of the charges, specifically whether the actions taken by Li constituted the severity of offences as alleged.
The court was tasked with determining the precise nature of the injuries inflicted, assessing whether they met the threshold for the offences charged. Key issues included the interpretation of "actual bodily harm" under the Crimes Act, and whether the acts of choking and suffocation met the requisite criteria for the charges. The court also had to consider the proportionality of Li's response in the context of self-defence or defence of others, and whether the injuries sustained by the complainant were a direct result of the alleged assault.
In examining the evidence, the court found that the injuries sustained by the complainant were consistent with the charges of assault causing actual bodily harm. The medical evidence supported the conclusion that the injuries were significant and directly attributable to Li's actions. The court held that the acts of choking and suffocation were sufficiently severe to meet the statutory criteria for the offences charged. Additionally, the court dismissed Li's claims of self-defence, finding that the force used was excessive in the circumstances. Consequently, the court found Li guilty on all counts.
The final orders of the court were that Li be sentenced on a future date, with specific considerations given to the nature and severity of the offences. The court also noted the importance of community protection and deterrence in the sentencing process.