Citation: GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 1 April 2022
Judge(s): Payne JA (principal judgment); Rothman J and Harrison J (agreeing)
Background
The accused (identified as GS) faced trial in the District Court at Penrith over conduct alleged to have occurred on 6 January 2019 against his former intimate partner (identified as JC). The charges included unlawful detention, intentional choking without consent under s 37(1A) of the Crimes Act 1900 (NSW), and four related or back-up charges arising from the same course of events.
The trial judge directed the jury to acquit GS on the choking count (count 2), taking the view that the prosecution had not adduced sufficient evidence of actual impediment to breathing or blood flow as a consequence of the assault. The jury later acquitted GS of the detention charge (count 1) and of three of the four related charges (sequences 1, 2 and 3). The trial judge, sitting alone on the related charges, convicted GS of assault occasioning actual bodily harm (sequence 4).
GS was sentenced to 20 months' imprisonment with a 15-month non-parole period, both of which had already expired by the time of sentencing. He had been released in June 2021, having served approximately two years and five months in custody on remand, a period exceeding the head sentence subsequently imposed. Two separate appeals came before the Court of Criminal Appeal: the Director's appeal against the directed acquittal on the choking count, and GS's appeals against his conviction and sentence on sequence 4.
Legal Issues
- What is the correct statutory meaning of "intentionally chokes" in s 37(1A) of the Crimes Act 1900 (NSW): does proof of actual impediment to breathing or blood flow form a necessary element, or is it sufficient that the accused intentionally applied pressure to the neck capable of affecting breath or blood flow?
- Was the directed acquittal on the choking count lawfully made, given that construction?
- Was GS's conviction on sequence 4 (assault occasioning actual bodily harm) inconsistent with the acquittals on counts 1 and 2 and sequences 1, 2 and 3?
- Was the sentence imposed on GS manifestly excessive?
- Should the Court exercise its residual discretion to decline remitting the choking charge for retrial?
Decision
Meaning of "intentionally chokes" (Director's appeal)
The Court of Criminal Appeal held that the trial judge had applied an erroneously narrow construction of s 37(1A). The correct meaning of "intentionally chokes" is to intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head. The prosecution does not need to prove that breathing was actually impeded or that blood flow was actually restricted as a consequence of the conduct. The legislative purpose of the provision, examined in context, was to deter controlling behaviours associated with domestic and family violence by prohibiting conduct capable of restricting breathing and/or blood flow, not conduct that demonstrably produced that result.
On the evidence available at trial, including JC's account of GS grabbing her throat with both hands for approximately a minute and the evidence of bruising to her neck, it was open to a jury, properly directed, to find the element of choking established. The directed acquittal was therefore made in error.
Residual discretion not to remit for retrial
Despite setting aside the directed acquittal, the Court declined to remit GS for retrial. The principal reason was that GS had already served more than two years and five months on remand, a period significantly exceeding the head sentence that had ultimately been imposed upon him for the related assault charge. In those circumstances, ordering a retrial was not appropriate.
Conviction appeal (sequence 4) and sentence appeal
The Court dismissed GS's appeal against conviction. It found no relevant inconsistency between the guilty verdict on sequence 4 and the acquittals on other counts. The evidence supporting the sequence 4 conviction, including JC's account of multiple assaults and corroborating photographic evidence of bruising, was distinct from the evidentiary basis of the other charges. The Court also dismissed the sentence appeal, finding no demonstrated error of principle and no manifest excess.
Orders Made
In the Director's appeal (DPP v GS):
- The acquittal of GS on the charge of intentionally choking contrary to s 37(1A) of the Crimes Act 1900 (NSW) was set aside.
- A declaration was made that "intentionally chokes" within s 37(1A) means "intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head."
- In the exercise of residual discretion, the Court declined to remit GS to the District Court for retrial.
In GS's appeal (GS v R):
- The appeals against conviction and sentence were dismissed.
Key Takeaways
- Under s 37(1A) of the Crimes Act 1900 (NSW), a prosecution for intentional choking without consent does not require proof that breathing was actually impeded or blood flow was actually restricted. It is sufficient that the accused intentionally applied pressure to the neck in a manner capable of affecting the breath or blood flow to or from the head.
- The Court of Criminal Appeal issued a formal declaration of the correct statutory construction, providing authoritative guidance on the scope of the offence for future prosecutions.
- A directed acquittal based on a misreading of a statutory element is amenable to appeal by the Director of Public Prosecutions, and the Court retains the power to set it aside even where the accused has since been released.
- Notwithstanding that a directed acquittal was wrongly made and sufficient evidence existed for the matter to have gone to the jury, the Court exercised its residual discretion to refuse a retrial where the accused had already served custody exceeding the head sentence subsequently imposed on related charges.
- Inconsistency in verdicts requires a genuine logical incompatibility between findings. Where different charges rest on distinct evidentiary foundations, acquittals on some charges do not necessarily render a conviction on another charge inconsistent.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37, 37(1A), 59(1), 86(2)(b), 144(1)(a), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), ss 165(1), 166(1)(b), 168(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 107, 111(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5AD
- Crimes Act 1900 (ACT), ss 27(1), 28(2)(a)
- Crimes Legislation Amendment Act 2019 (ACT)
- Criminal Code (Qld), ss 315, 315A
- Domestic Abuse Act 2021 (UK)
- Offences against the Person Act 1861 (UK)
Key Cases:
- Doney v The Queen (1990) 171 CLR 207
- House v The King (1936) 55 CLR 499
- Lowndes v The Queen (1999) 195 CLR 665
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378
- Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147
- Koloamatangi v R [2020] NSWCCA 52
- Dadley v R [2021] NSWCCA 267
- Gilham v R [2012] NSWCCA 131
- Hili v The Queen (2010) 242 CLR 520