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District Court 10 June 2021

R v Schwenke (No.2)

[2021] NSWDC 248

Assault & violence
CRIMINAL LAW PROCEDURE APPLICATION FOR DIRECTED VERDICT WHETHER DEFECT IN EVIDENCE PRESENT INTERPRETATION WORDS AND PHRASES

Citation: R v Schwenke (No.2) [2021] NSWDC 248
Court: District Court of New South Wales
Date: 10 June 2021
Judge: Abadee DCJ

Background

The accused stood trial on an indictment that included a charge of intentionally choking the complainant without her consent, contrary to s 37(1A) of the Crimes Act 1900 (NSW). The alleged offence occurred on 6 January 2019 at Leumeah. The complainant gave evidence that during a violent altercation the accused placed both hands around her throat, told her she was going to die, and later wrapped his arms around her head when she tried to slip free.

After the close of the accused's case, defence counsel applied for a directed acquittal on the choking count. The application turned on whether the Crown's evidence, taken at its highest, was capable of establishing the essential element that the accused had in fact "choked" the complainant within the meaning of s 37(1A).

  • What is the threshold test for directing a verdict of acquittal in a criminal trial?
  • What does the word "chokes" mean in s 37(1A) of the Crimes Act 1900 (NSW)?
  • Does placing hands around a person's throat, without evidence of restricted or hindered breathing, satisfy the element of choking?
  • Was there a defect in the Crown's evidence such that it could not sustain a guilty verdict on the choking count?

Decision

The directed acquittal test. A trial judge may direct a verdict of not guilty only where there is a defect in the evidence such that, taken at its highest, it cannot sustain a guilty verdict. It is not sufficient that the judge considers a guilty verdict would be unsafe or unsatisfactory. Abadee DCJ applied the standard set out in Doney v R (1990) 171 CLR 207 and LK v The Queen (2010) 241 CLR 177.

The meaning of "chokes". Section 37(1A), inserted in 2018, creates a standalone offence of intentionally choking, suffocating, or strangling another person without consent. The provision contains no express definition of "chokes." Drawing on purposive construction principles under s 33 of the Interpretation Act 1987 (NSW), the Second Reading Speech, and decisions from Queensland and the ACT, Abadee DCJ concluded that "chokes" requires more than merely placing hands on a person's throat. There must be pressure that at least results in a restriction or hindrance of the victim's breathing. The court agreed with the Queensland Court of Appeal's reasoning in R v HBZ [2020] QCA 73 that a sore neck alone, without evidence of restricted breathing, does not suffice.

Application to the evidence. The complainant gave evidence that the accused grabbed her around the throat with both hands, pushed her down, and later wrapped his arms around her head. She did not lose consciousness and described no difficulty breathing. The only physical effect she reported was a sore neck. The complainant's evidence, taken at its highest, was not materially different from the accused forcefully and aggressively touching her throat in a menacing context. The Crown's case could not establish that the accused's acts hindered or restricted the complainant's breathing, which is the minimum required to prove choking.

Outcome. Abadee DCJ upheld the application and directed the jury to acquit the accused on count 2.

Orders Made

  • The accused's application for a directed verdict of acquittal on count 2 was upheld.
  • The jury was directed to return a verdict of not guilty on count 2.

Key Takeaways

  • A directed acquittal is available only where a defect in the evidence means it cannot, even at its highest, sustain a guilty verdict; a judge's view that a verdict would be unsafe or unsatisfactory is insufficient.
  • Under s 37(1A) of the Crimes Act 1900 (NSW), the word "chokes" requires pressure that at least restricts or hinders the victim's breathing; the provision is not satisfied merely by placing hands on a person's throat.
  • A sore neck, without evidence of any impediment to breathing, does not establish the element of choking, even where the complainant found the conduct terrifying.
  • The District Court applied purposive construction principles and drew on interstate authority, particularly the Queensland Court of Appeal's analysis in R v HBZ, to reach its interpretation of the undefined statutory term.
  • Where the complainant denies losing consciousness and gives no evidence of breathing difficulty, the Crown's choking case may carry a fundamental evidentiary gap as to an essential element of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 37 (including s 37(1A))
- Criminal Procedure Act 1986 (NSW), s 289F
- Interpretation Act 1987 (NSW), s 33
- Crimes Act 1900 (ACT), s 28
- Criminal Code 1899 (Qld), s 315A

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