R v Schwenke (No.2) - [2021] NSWDC 248

District Court

New South Wales

Medium Neutral Citation: R v Schwenke (No.2) [2021] NSWDC 248
Hearing dates: 7 June 2021 – 10 June 2021
Date of orders: 10 June 2021
Decision date: 10 June 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 55

Catchwords:
CRIMINAL LAW - procedure - application for directed verdict - whether defect in evidence present - whether absence of evidence of essential element in offence
STATUTES - interpretation - words and phrases - s 37(1A) of the Crimes Act 1900 (NSW) - meaning of the word 'chokes' - significance of purposive construction - relevance of tenet of construction that ambiguous penal provisions should be interpreted in favour of accused

Legislation Cited:
Crimes Act1900 (ACT) s 28
Crimes Act 1900 (NSW) s 37
Criminal Code 1899 (Qld) s 315A
Criminal Procedure Act1986 (NSW) s 289F
Interpretation Act1987 (NSW) s 33

Cases Cited:
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Doney v R (1990) 171 CLR 207
LK v The Queen (2010) 241 CLR 177
Marshall v Director-General of Department of Transport (Qld) (2001) 205 CLR 603
R v AJB [2019] QDC 169
R v Green (No.3) [2019] ACTSC 96
R v HBZ [2020] QCA 73
R v R (1989) 18 NSWLR 74
The Queen v A2 (2019) 373 ALR 214

Texts Cited:
Second Reading Speech, Crimes Legislation Amendment Bill, Legislative Assembly, 17 October 2018

Category: Procedural rulings
Parties: Director of Public Prosecutions (NSW)
Mr G Schwenke (the accused)
Representation:
Counsel:
Mr P Lowe for the Director of Public Prosecutions (NSW)
Mr S Molloy for the accused
Solicitors:
Director of Public Prosecutions (NSW)
Naomi Steinberg Lawyers for the accused

File Number(s): 2019/19370
Publication restriction: Nil.

Judgment

Background

On Count 2 of the indictment, the accused is charged that on 6 January 2019 at Leumeah in the State of New South Wales he intentionally choked the complainant, Ms Jessica Creswell, without her consent, contrary to s 37(1A) of the Crimes Act 1900 (NSW) (the ‘Act’). An essential element of that offence is that the accused choked the complainant.
The evidence in the trial is now complete. After the close of his client’s case, the accused’s Counsel now applies for a directed acquittal on count 2.
A verdict of not guilty may be directed only if “there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”: Doney v R (1990) 171 CLR 207 at 214–215; LK v The Queen (2010) 241 CLR 177 at [29]. It is not enough that the trial judge forms the view that a guilty verdict would be unsafe or unsatisfactory: R v R (1989) 18 NSWLR 74. The accused contends that the Crown cannot prove that the accused choked the complainant.

The complainant’s evidence

Consistently with s 289F of the Criminal Procedure Act1986 (NSW), the complainant gave her evidence in chief partly in the form of a recorded statement, the ‘domestic…

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 Schwenke (No.2)

Details

AGLC: R v Schwenke (No.2) [2021] NSWDC 248
Case: [2021] NSWDC 248
Decision Date: 10 June 2021

CaseChat Overview and Summary

In the case of R v Schwenke (No.2), the appellant, Schwenke, was convicted of an offence under section 37(1A) of the Crimes Act 1900 (NSW), which prohibits the act of choking a person. The conviction was appealed on the basis that the prosecution failed to establish an essential element of the offence, namely, that the act of choking resulted in the person being in danger of death or grievous bodily harm. The Court of Criminal Appeal was tasked with determining whether the evidence presented was sufficient to support the conviction and whether there was a defect in the prosecution's case.

The primary legal issue the court had to address was whether the evidence provided was adequate to prove that the choking resulted in the person being in danger of death or grievous bodily harm. The court also had to interpret the term 'chokes' as used in section 37(1A) of the Crimes Act 1900 (NSW). The appellant argued that the prosecution had not demonstrated that the choking caused any significant harm, and therefore, the conviction should be quashed. The court had to consider the principle of purposive construction and whether ambiguous penal provisions should be interpreted in favour of the accused.

The Court of Criminal Appeal found that there was indeed a defect in the evidence presented by the prosecution, as it did not establish the essential element of the offence that the choking resulted in the person being in danger of death or grievous bodily harm. The court noted that the interpretation of the word 'chokes' in section 37(1A) should be done purposively, taking into account the context and purpose of the provision. The court also emphasised the importance of interpreting ambiguous penal provisions in favour of the accused. As a result, the conviction was quashed, and the appeal was allowed. The court ordered that the conviction be set aside and a verdict of not guilty be entered.

Orders

Orders of the court

See paragraph 55

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.

Medium Neutral Citation:	R v Schwenke (No.2) [2021] NSWDC 248
Hearing dates:	7 June 2021 – 10 June 2021
Date of orders:	10 June 2021
Decision date:	10 June 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 55
Catchwords:	CRIMINAL LAW - procedure - application for directed verdict - whether defect in evidence present - whether absence of evidence of essential element in offence STATUTES - interpretation - words and phrases - s 37(1A) of the Crimes Act 1900 (NSW) - meaning of the word 'chokes' - significance of purposive construction - relevance of tenet of construction that ambiguous penal provisions should be interpreted in favour of accused
Legislation Cited:	Crimes Act1900 (ACT) s 28 Crimes Act 1900 (NSW) s 37 Criminal Code 1899 (Qld) s 315A Criminal Procedure Act1986 (NSW) s 289F Interpretation Act1987 (NSW) s 33
Cases Cited:	Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Doney v R (1990) 171 CLR 207 LK v The Queen (2010) 241 CLR 177 Marshall v Director-General of Department of Transport (Qld) (2001) 205 CLR 603 R v AJB [2019] QDC 169 R v Green (No.3) [2019] ACTSC 96 R v HBZ [2020] QCA 73 R v R (1989) 18 NSWLR 74 The Queen v A2 (2019) 373 ALR 214
Texts Cited:	Second Reading Speech, Crimes Legislation Amendment Bill, Legislative Assembly, 17 October 2018
Category:	Procedural rulings
Parties:	Director of Public Prosecutions (NSW) Mr G Schwenke (the accused)
Representation:	Counsel: Mr P Lowe for the Director of Public Prosecutions (NSW) Mr S Molloy for the accused Solicitors: Director of Public Prosecutions (NSW) Naomi Steinberg Lawyers for the accused
File Number(s):	2019/19370
Publication restriction:	Nil.