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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v AJB  QDC 169
District Court at Townsville
30 August 2019
23 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for directed verdict – whether defect in the evidence was present – absence of evidence of element of the offence – application granted
STATUTES – Interpretation – word and phrases – s 315A(1)(a) and (b) Criminal Code (Qld) - meaning of the words “choke”, “strangle” and “suffocate” – whether the offence requires the victim to have stopped breathing
Criminal Code (Qld) – s 315A(1)(a) and (b)
Domestic and Family Violence Protection Act 2012
Legislation Act 2001 (ACT)
A2 v R  NSWCCA 174 – considered
Aubrey v The Queen  HCA 18 – considered
ACAT  ACTCA 14 – considered
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  HCA 41 – considered
CIC Insurance Ltd v Bankstown Football Club ltd  HCA 2 – considered
Commissioner for ACT Revenue v Dataflex Pty Ltd and Beckwith v R (1976) 135 CLR 569 – considered
Doney v The Queen  171 CLR 207 – considered
Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943  NSWCA 409 – considered
Federal Commissioner of Taxation v Consolidated Media Holdings Limited  HCA 55 – considered
House of Pearce Pty Ltd v Bankstown City Council  NSWSCA 44 – considered
Innes v The Queen  NSWCCA 90 – cited
Kuzmanovski v NSW Lotteries Corporation  FCA 876 – considered
Lansbury v R  2 Qd R 180 – cited
Military Rehabilitation and Compensation Commission v May  HCA 19 – considered
Project Blue Sky v Australian Broadcasting Authority  HCA 28 – considered
R v Green (No. 3)  ACTSC 96 – cited
R v Lavender  HCA 37 – considered
R v MCW  QCA 241- cited
R v MDB  QCA 283- cited
R v Osborne  1 Qd R 96 – considered
R v R (1989) 18 NSWLR 74 at 85 – considered
Saeed v Minister for Immigration and Citizenship  HCA 23 – considered
SAS Trustee Corporation v Miles  HCA 55 – considered
TAL Life Ltd v Shuetrim  NSWCA 68 – considered
The Queen v LK (2010) 241 CLR 177 – considered
M Sheppard for the Crown
H Walters for the defendant
Office of the Director of Public Prosecutions (Queensland) for the Crown
Strategic Lawyers for the Defendant
- AJB was charged with two counts contained within an indictment dated the 8th of March 2019. Count 1 was a count of assault occasioning bodily harm (domestic violence offence) and count 2 was a count of choking in a domestic setting (domestic violence offence).
- The offending was said to have arisen out of a series of events on the 11th of July 2018. The complainant was JFN. The complainant was the defendant’s daughter.
- It was the Crown’s case that an argument occurred between the defendant and her daughter which also, at least peripherally, involved the daughter’s partner and that, as a result of that incident, the defendant had:
- knocked the complainant to the ground and had, on multiple occasions, taken her hair and banged the back of her head into the ground and;
- that the defendant had placed an arm around the complainant’s throat and thereby had unlawfully choked her, until she was removed by the intervention of the complainant’s partner and two friends.
- The Crown case relied initially upon the account of the complainant, which was supported by statements made by her partner and two friends, present at the time of the incident. The information provided to the Crown was contained in the initial complaint made shortly after the incident on the 11th of July 2018 and was also supported by the statements by others, as well as evidence provided by both police and medical staff.
- The evidence of the complainant, and it was supported, to some extent, by various statements of others, was that she had been choked on the 11th of July 2018 and that she had not, at least at some stage during the incident, been able to breathe. However, when evidence was given during the trial, the complainant, though not recanting that evidence, certainly modified it to such as extent that a real question arose as to whether an element of choking, as required pursuant to the provisions of section 315A(1)(a) and (b)(i) of the Queensland Criminal Code, had occurred.
- On the second day of the trial following the closing of the Crown case, counsel for the defendant made a no-case submission in respect of count 2. I upheld that submission and, accordingly, concluded that a verdict of not guilty must be directed to be given by the jury, as I found that there was a defect in the evidence such that, even taken at its highest, the evidence would not sustain a verdict of guilty.
- Accordingly, it is necessary for me to provide reasons as to my determination that there was not sufficient evidence to enable the case to be put to the jury.
- The offence is detailed in section 315A(1)(a) and (b) of the Criminal Code. The section is in these terms:
315A Choking, suffocation or strangulation in a domestic setting
- A person commits a crime if—
- the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and
- the person is in a domestic relationship with the other person; or
- the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.
Maximum penalty—7 years imprisonment.
- The terms used in the section refer to unlawfully choking, suffocating or strangling another person without that other person’s consent. As is clear from the section itself, there is no definition of the words “choke”, “suffocate” or “strangle” and those words are not otherwise defined within the provisions of the Criminal Code.
- The inclusion of the section specifically relates to the requirement that the person charged is in a domestic relationship with the other person or that the choking, suffocation or strangulation is associated domestic violence under the Domestic Violence Protection Act 2012. It is important that that be recognised here because the previous offence of a similar nature was contained within section 315 of the Criminal Code and it relates to choking, suffocating or strangling with an intent, that being an intent to:
…commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, renders or attempts to render any person incapable of resistance, is guilty of a crime, and is liable to imprisonment for life.
- Very clearly, the inclusion of section 315A of the Act was to deal with a very different set of circumstances.
- Insofar as construction is concerned, I have been enormously assisted by the judgment of Justice Loukas-Karlsson of the Supreme Court of the Australian Capital Territory in R v Green (No. 3)  ACTSC 96. There her Honour, considering similar matters to this, and detailed the relevant principles of construction. At paragraphs 9 through 18 she said the following:
Relevant principles of construction
- It is uncontroversial that a question of statutory construction must be “determined by reference to text, context and purpose” of the Act in question (Military Rehabilitation and Compensation Commission v May  HCA 19; 257 CLR 468 at ). Nevertheless, in approaching the task of construing s 28(2)(a), it is appropriate to elaborate on this process by reference to a number of further principles.
- First, regard must be had to the appropriate starting point for the task of construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  HCA 41; 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ observed as follows at : This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
- This process was considered more recently in SZTAL v Minister for Immigration and Border Protection; SZTGM v Same  HCA 34; 347 ALR 405 (SZTAL) by Kiefel CJ, Nettle and Gordon JJ at : The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
- Thus, while it is appropriate in the first instance to consider the natural and ordinary meaning of words of the statute, at this initial stage context and purpose may nevertheless ultimately displace an otherwise ordinary meaning. As was observed by Kiefel CJ, Bell and Nettle JJ in SAS Trustee Corporation v Miles  HCA 55; 361 ALR 206 (SAS Trustee) at : Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.
- Second, when considering the text of the Act, it must be read with regard to, and consistently with, the provisions of the Act as a whole (Legislation Act 2001 (ACT) (Legislation Act) s 140; Project Blue Sky v Australian Broadcasting Authority  HCA 28; 194 CLR 355 at ).
- Third, when construing a particular word, a court may take judicial notice of the fact of an ‘ordinary meaning’ of a word, and can do so with the assistance of an authoritative dictionary (Kuzmanovski v NSW Lotteries Corporation  FCA 876; 270 ALR 65 at  - ). In Australia, the “most authoritative” dictionary is said to be the Macquarie Dictionary (see House of Pearce Pty Ltd v Bankstown City Council  NSWSCA 44; 48 NSWLR 498 at ). I note, however, the concerns expressed by Leeming JA regarding the reliance on dictionaries in discerning meaning within a particular context (see 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943  NSWCA 409; 88 NSWLR 488 at ). The use of a dictionary is considered no substitute for the interpretative process (TAL Life Ltd v Shuetrim  NSWCA 68; 91 NSWLR 439 at ).
- Fourth, consistent with the approach described in SZTAL, context and purpose should not be considered at some later stage, including legislative history and extrinsic materials (Federal Commissioner of Taxation v Consolidated Media Holdings Limited  HCA 55; 250 CLR 503 at ). Some uncertainty exists as to the requirement for the statutory text to present an ambiguity before referral can be made to extrinsic materials (see CIC Insurance Ltd v Bankstown Football Club ltd  HCA 2; 187 CLR 384 at 408; A2 v R  NSWCCA 174 at ; cf Saeed v Minister for Immigration and Citizenship  HCA 23; 241 CLR 252 at ). However, there is authority in this jurisdiction at least that such an ambiguity is not required (Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT  ACTCA 14; 5 ACTLR 271).
- In any event, the Legislation Act, though not an exhaustive codification of the law of interpretation in this jurisdiction (s 137(2)), provides that extrinsic materials may be referred to for the purposes of, amongst others, resolving an ambiguous or obscure provision of an Act or confirming or displacing the apparent meaning of an Act (ss 138, 141). The categories of materials that a court may have regard to are listed nonexhaustively in s 142 of the Legislation Act.
- Fifth, in this jurisdiction, where multiple possible interpretations of an Act are open, the interpretation which “best achieves” the purpose of the Act is to be preferred to any other interpretation (Legislation Act, s 139).
- Finally an additional presumption is applicable in the context of penal statutes in particular. That is, although ordinary rules of construction are to be applied, where doubt exists in the construction of penal statute, courts should interpret the statue so as not to extend a category of criminal offences (Beckwith v R (1976) 135 CLR 569 (Beckwith) at ). However, this presumption is one to be applied as a “last resort” (Beckwith at ; Aubrey v The Queen  HCA 18; 260 CLR 305 at ) or when “an ambiguity seems intractable” (R v Lavender  HCA 37; 222 CLR 67 at ).
- I agree entirely with her Honour’s consideration of the principles of construction and, in particular, note the comments with regard to the possibility of multiple interpretations of an Act and, in such circumstances, the interpretation which should be adopted is that which “best achieves” the purpose of the Act. It is an important consideration in relation to this matter, particularly when considered in conjunction with the obvious requirement that a Court should interpret the statute so as not to extend the category of criminal offence. I shall come to that particular aspect of the matter shortly.
- Before turning, however, to determination in relation to this matter, I note again the research that was conducted by her Honour Justice Loukas-Karlsson in relation to the need to obtain some definition which can be relied upon in respect of “strangle”, “suffocation” and “choke”. There her Honour referred to the Macquarie Dictionary and to the definitions provided in relation to each of those terms. At paragraphs 21, 23 and 25 of the decision, her Honour said:
- The definition of the verb ‘strangle’ as it appears in the Macquarie Dictionary Online is as follows: Strangle –verb (t) 1. To kill by compression of the windpipe, as by a cord around the neck; 2. To kill by stopping the breath in any manner; choke; stifle; suffocate; 3. To prevent the continuance, growth, rise, or action of; suppress; –verb (i) 4. To be choked, stifled, or suffocated; –noun 5. (plural construed as singular) an infectious febrile disease of equine animals, characterised by catarrh of the upper air passages and suppuration of the submaxillary and other lymphatic glands; distemper.
- The definition of ‘suffocate’ as it appears in the Macquarie Dictionary Online is as follows: Suffocate –verb (t) 1. To kill by preventing the access of air to the blood through the lungs or analogous organs, as gills; 2. To impede the respiration of; 3. To cause discomfort to through lack of cool or fresh air; 4. To overcome or extinguish; suppress; –verb (i) 5. To become suffocated; stifle; smother; 6. To feel discomfort through lack of cool or fresh air; 7. To feel oppressed by one’s circumstances or situation, as if suffocating: to suffocate in a marriage.
- The Crown did concede that ‘choke’ was defined in the Macquarie Dictionary Online as being to ‘stop the breath’. The full definition is as follows: Choke verb (t) 1. To stop the breath of, by squeezing or obstructing the windpipe; strangle; stifle; suffocate; 2. To stop, as the breath or utterance, by or as by strangling or stifling; 3. To check or stop the growth, progress, or action of: to choke off discussion. 4. To stop by filling; obstruct; clog; congest; 5. To suppress, as a feeling or emotion; 6. To fill chock-full; 7. To enrich the fuel mixture of (an internal-combustion engine) by diminishing the air supply to the carburettor; 8. To stop the forward movement of (a load) by strapping it down tightly: to choke the load; –verb (i) 9. To suffer strangling or suffocation; 10. To be obstructed or clogged; 11. Sport to lose one’s confidence when close to victory; –noun 12. The act or sound of choking; 13. (in internal-combustion engines) the mechanism by which the air supply to a carburettor is diminished or stopped. 14. Machinery any such mechanism which, by blocking a passage, regulates the flow of air, etc; 15. A narrowed part, as in a chokebore; 16. A narrowed part of a river where the banks are closer to each other; 17. The filamentous, inedible centre of the head of an artichoke; 18. Electricity a coil or inductor which allows direct currents to pass freely through but impedes the passage of alternating currents by an amount which increases with the frequency of the alternating current; –phrase 19. Choke back, to suppress: *The electricians, solid, practical chaps, choked back slightly indulgent smiles when I discussed some of the problems with them…20. Choke down: a. to suppress, b. to bring down (a wild horse, steer, etc.) by roping it around the neck, c. to swallow with difficulty: they choked down the unpalatable mess, 21. Choke up: a. to be temporarily overcome, as with emotion: he choked up as soon as the music started, b. to overcome, as with emotion: his words choked me up; …
- Most relevant, of course, in relation to this matter is the definition in relation to the word “choke”, it being the case that count 2 contained within the indictment specifically referred to choking and not strangulation or suffocation. The wording of the indictment was as follows:
That on the 11th day of July 2018 at Townsville in the State of Queensland, (AJB) unlawfully choked (JFN) without her consent and (AJB) and (JFN) were in a domestic relationship at the time.
- The importance of that wording cannot be overemphasised because, as is clear from the definition previously referred to, the word “choke” is defined as meaning:
To stop the breath of, by squeezing or obstructing the windpipe; strangle; stifle; or suffocate.
- Justice Loukas-Karlsson, in R v Green (No. 3), then provided, most helpfully, a consideration of “choke”, “strangle” or “suffocate” offences across Australia, providing a table of existing offences with regard to those words in the ACT, New South Wales, Queensland, Tasmania and the Northern Territory and, perhaps more relevantly still, referred to the “new offences”, relating to such offending which generally involves offending with a domestic partner or a person with whom there is a domestic relationship.
- Her Honour, in paragraph 36 of her judgment, referred to these new offences in the ACT, Queensland, New South Wales and South Australia. It was noted there that the terms “choke”, “strangle”, and “suffocate” are not defined terms in any of those four jurisdictions. And her Honour also noted that there had been little consideration of the terms in the absence of additional elements of conduct that are present in the existing offences. Justice Loukas-Karlsson then considered a number of the cases that have arisen in each of those various jurisdictions, but perhaps most relevantly, noted, in paragraphs 42 through 44, the situation in Queensland where her Honour said the following:
- In Queensland, before the introduction of s 315A, the elements of s 315 were considered by the Court of Appeal in R v Osborne  1 Qd R 96. Here, ‘incapable of resistance’ was interpreted as being wide enough to include crying out for assistance. Accordingly, choking the victim so that they could not cry out was held to be sufficient to make out the complete offence. As to the ‘choke’ element, the direction given to the jury was summarised by Connolly J (at 97): The learned trial judge directed the jury that the third element of the offence was that the choking, the squeezing of the throat to stop the breathing, was done in an attempt to render the complainant incapable of resisting an indecent assault.
- The ‘choke’ component of the offence was subsequently considered in Lansbury v R  2 Qd R 180 where it was observed by Macrossan J (at 181): [T]he learned trial judge…told the jury that the word “choke”, contained in the charge, carried the meaning of stopping the aperture of the girl’s throat and preventing her from breathing. No objection was made to this direction.
- The above two cases appear to consider the ‘choke’ element independently of the ‘additional element’ and with a requirement for stopping breathing. However, given the context of that offence, the conduct (including preventing the victim crying out) might be considered to be more serious than the ordinary meaning of the term ‘choking’. Cases considering the new section 315A, such as R v MCW  QCA 241 (MCW) and R v MDB  QCA 283, have not considered the elements themselves but have, in the context of sentencing, observed it is not useful to have regard to comparable cases on actual bodily harm, as the legislature has expressly indicated a unique domestic violence offence with the introduction of s 315A for conduct which is “inherently dangerous” (MCW at ). In both those cases the victim was unable to breathe as a result of the offending conduct.
- In particular, the earlier cases that were referred to in paragraphs 42 and 43 noted that in section 315 of the Criminal Code, as it was detailed prior to the introduction of section 315A, reference was made to what a jury should consider, specifically in relation to the word “choke”. It was noted that in R v Osbourne, Justice Connolly noted that the choking, the squeezing of the throat to stop the breathing, was done in an attempt to render the complainant incapable of resisting. It was clear that the explanation there related to a cessation of an ability to draw breath.
- Similarly, in Lansbury v The Queen, Justice Macrossan observed that the trial judge had indicated to the jury that the word “choke” contained in the charge, carried the meaning of stopping the aperture of the girl’s throat and preventing her from breathing.
- Both of those definitions, which were unchallenged, clearly indicated a cessation of an ability to draw breath in any way, not simply a restriction in the ability to draw breath.
- The more recent decisions that were referred to in paragraph 44, including R v MCW and R v MDB, arose in situations where it was acknowledged that the complainant was unable to breathe as a result of the offending conduct. Ultimately, therefore, the conclusion drawn by Justice Loukas-Karlsson was that the relevant element contained within section 28(2) of the Crimes Act (ACT), but in my assessment, similarly arising in section 315A of the Criminal Code, was constituted by the stopping of breath. The consistent theme in the terms “choke”, “suffocate” and “strangle” involve a stopping of breath, not a restriction in the ability to breathe.
- It is clear, in my assessment, that that is the specific intent of the legislation in this instance as, otherwise, the application of force would be similar to that which gives rise to various charges such as assault, assault occasioning bodily harm and assault occasioning grievous bodily harm.
- Having formed that view in relation to the matter, it is obviously necessary to explain the evidentiary basis upon which it was argued that there was no case to answer. Turning firstly then to the evidence of the complainant, it was noted that at page 33 of the first day’s evidence, commencing at line 10, the following exchange occurred as between the Prosecutor and the complainant:
Now, when you’ve described your mum having – applying some pressure to your throat, how was she doing that?‑‑‑She just had her hand around my throat.
Okay. How long did that go on for?‑‑‑That was only a few seconds.
Were you saying anything when you mum was doing this?‑‑‑I was telling her to stop.
Could you breath?‑‑‑I thought I couldn’t breathe. But now, looking back, I think I could because I could see because I was yelling and telling her to stop.
- A little later on, at line 30 on the same page, the following exchange occurred:
How was your mum holding you when you came – when they came over to you?‑‑‑Mum had me in a chokehold and she had her arm around my neck.
So you just made a gesture there. She – you had the arm over your throat with the elbow pointing outwards; is that right?‑‑‑Yeah.
When your mum had her arm in that position, what did you feel?‑‑‑I don’t know. I have – I was trying to get up off the ground.
Did it hurt anywhere?‑‑‑I can’t remember.
- Later, at page 38, toward the very end of the evidence-in-chief, the following exchange occurred between the prosecutor and the complainant. The following was said. Ms Sheppard:
Yes, if I might clarify, Ms (JFN). When your mother had your – had her arm around your neck, did you have any difficulty breathing?‑‑‑No.
- And then in cross-examination at page 41, when questioned about this matter, the following exchange occurred at line 30 and onward:
But as you said, you were able to breathe; is that correct?‑‑‑Yeah, I could talk.
Yes, and your breathing was not restricted, was it?‑‑‑No.
- It is argued on the part of the Defence, therefore, that such evidence is clearly to the effect that there was no impeding of the ability to breathe. It may be that there was some discomfort or difficulty with breathing or simply physical distress as a result of the altercation. But the suggestion that breathing was impeded for any period at all is unable to be drawn from that evidence. Accordingly, the defence says that the vital element of choking is unable to be proven.
- The Crown’s position in relation to the matter was to oppose a finding of no case to answer. It was, in fact, argued that whilst there may be some difficulty in relation to satisfying a jury on the evidence of the complainant, there was other evidence which could be relied upon. And it was submitted that in line with the test, as articulated in Doney v The Queen  171 CLR 207, that:
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.
- In support of what the Crown said was a basis upon which the jury could find that choking had occurred, reliance was placed upon the evidence of a number of the other witnesses who were present and who gave evidence. In particular, reference was made to the evidence of Courtney Walsh at page 10 on day 1. At line 20 onward, the following occurred:
Okay. And how was Ms (AJB) holding (JFN) when that was happening?‑‑‑She had her – yeah, left arm wrapped around (JFN)’s throat. And, yeah, the hand in her hair.
How did (JFN) appear when this was happening?‑‑‑Crying her eyes out.
Was she saying anything?‑‑‑Yeah. “Please, get her off me. Get her off me.” But then after a while, she’d stop talking. Obviously, she was getting choked so she ‑ ‑ ‑
- And, thereafter, there was an objection as to that being a statement of opinion and was not further pressed. But at line 38 on the same page, perhaps from a different perspective, the question was then asked:
So you – I was asking you about whether or not (JFN) was saying anything and she was saying some things. Did that – did she stop talking at any point?‑‑‑Yes.
Okay. Now, what have you done seeing this?‑‑‑I tried to get (AJB) off of (JFN), tried to pull (JFN) free. I stopped doing that because I knew that it was making it worse. (JFN) was starting to breathe funny. She wasn’t being able to breathe properly, so I had stood back and then – and then, after that, (AJB) started punching the back of (JFN)’s head. And that’s when – well, after – and then –
- Additionally, reliance was placed upon the evidence of the two other witnesses who were called on behalf of the Prosecution. That included Aden Thompson, where, at page 24, from line 11, the following exchange occurred:
All right. What happened in that second occasion?‑‑‑Just on top of (JFN) again, like, with her arm around her throat then.
How was her arm on that occasion?‑‑‑I – I can’t really remember, to be honest. I think it was, like – I don’t know – like, wrap – wrapped around her throat. I’m pretty sure some ‑ ‑ ‑
Sorry. You’re gesturing with your arm ‑ ‑ ‑?‑‑‑Yeah, it was like – going over – wrap – yeah, just, like, wrapped around her throat, like – yeah, I don’t know. It’s hard to explain, really. Yeah.
- And then a little later on, the following exchange on the same page:
All right. How long has that gone on for?‑‑‑Not long at all. No – oh, a couple of seconds.
All right. What was (JFN) doing when this was happening?‑‑‑Screaming. Saying get off me. You could tell she was being choked by the – like, the way of her screaming and stuff like that.
Well, how can you test that?‑‑‑Well, like, it was – well, I don’t know. As you could say, like, you know, like, when, like, there’s not really much – like, it’s being, like, blocked, sort of thing, by choking. Like, you could hear her – what’s the word – struggling, sort of thing. I could – yeah, I don’t know. You could tell that she was struggling to try and talk and scream and stuff.
- And also, in a similar vein, there was the evidence of the complainant’s partner. At page 55 of the transcript of his evidence, commencing from line 11, and following was:
You say “choking her”. Describe what you actually saw (AJB) do to (JFN)?‑‑‑All I’ve seen is her arm around her neck. Pretty much about it.
How long was the arm around the neck for?‑‑‑I wouldn’t have a clue.
Okay. And I should just say, for the record, can you just describe that motion that you did in terms of the arm around the neck? Can you just demonstrate that to the members of the jury?‑‑‑She was holding her tightly.
All right. So just for the benefit of the record, the arm around the neck with the elbow pointing outwards; is that right?‑‑‑Yes.
- And then again on the same page:
Now, you describe this – you’re not sure how long it went on for. Was (JFN) saying anything while her mum had the arm around her neck?‑‑‑“Get off me”.
- And still later:
Was (JFN) talking through the whole of that?‑‑‑Not the whole of it, no.
- The Crown argues, therefore, that there certainly was evidence that the defendant could not breathe and that that was evidence that could properly be relied upon by the jury, to satisfy them that choking had occurred. Similarly, it was argued that the evidence of two of the police officers, Constable Potter and Detective Sergeant Faint, provided evidence as to what they had been told which, if relied upon, would satisfy the jury as to the complainant actually having been choked in that regard.
- It was also argued that choking should bear a meaning different to that to which I have already made reference, suggesting that it is more than a complete obstruction of the airway, but rather that it could and should be considered as hindering or partially obstructing the taking of breath. Accordingly, it was argued on the part of the Crown that there was ample evidence which could and should then be left to the jury to consider.
- Insofar as that particular issue is concerned, I was directed by counsel for the defendant and also for the Crown to the High Court decision in Doney v The Queen and the statement of law there with regard to a directed verdict of guilty. At pages 214 and 215 of the decision, the full paragraph is in these terms:
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, 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.
- As is obvious from the direction that I gave, I was satisfied that there was a defect in the evidence when one considers choking in its proper sense, such that even at its highest, it would not be able to sustain a verdict of guilty. The law relating to a directed verdict of acquittal is well settled. And as was noted by Justice Loukas-Karlsson, is usefully summarised in Innes v The Queen  NSWCCA 90 where, at paragraph 61 through 64 Justice Johnson said:
 The directed verdict of acquittal is a mechanism for taking a case away from the jury because, as a matter of law, a conviction is not open: The Queen v LK (2010) 241 CLR 177;  HCA 17 at 196  (French CJ). This ground alleged error of law. Accordingly, the appellant may appear as of right on this ground: s .5(1)(a) Criminal Appeal Act 1912.
 The question whether there is a case to answer or a prima facie case is a question of law. The power and duty of a trial Judge to direct a verdict of not guilty where there is no case to answer is an expression of the Judge’s power and duty to decide questions of law: The Queen v LK at 195 .
 The test to be applied by a trial judge on an application for verdict by direction in a criminal jury trial is not in doubt. It is the duty of a trial judge to direct a verdict of not guilty if the evidence cannot sustain a guilty verdict or if there is no evidence upon which a jury could convict: Doney v The Queen  171 CLR 207;  HCA 51 at 212; The Queen v LK at 195 . If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. 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 The Queen at 214-215.
 A trial Judge has no power to direct a verdict of acquittal merely because the Judge had formed a view that a guilty verdict would be unreasonable or, using the terminology previously adopted, unsafe and unsatisfactory: R v R (1989) 18 NSWLR 74 at 85; Doney v The Queen at 214-215.
- As is clear, the exercise of a Judge’s jurisdiction in relation to an application for no case is a clear power that is open to a Judge. But it must be exercised, obviously, in a reserved way, and only in circumstances where the Judge is satisfied that one of the elements of the case has fundamentally been omitted.
- In this case, it is clear that the best evidence available, notwithstanding peripheral comments which might have possibly been considered by the jury, was that of the complainant. And her evidence was clearly to the effect that she was able to breathe and whilst she may have had a belief that there were difficulties in relation to that, it was clearly a case of her being in a distressed state at the time, and perhaps unable, until given the clear light of day, to consider, exactly, her circumstance.
- Having reviewed the evidence and, in particular, the very clear evidence of the person most directly able to comment upon whether or not she was choked, in the sense of having her breathing wholly restricted was the complainant, I concluded that a verdict of not guilty must be directed, as there was a defect in the evidence such that, even taken at its highest it would not sustain a verdict of guilty.
- In respect of count 2, the evidence at its highest did not involve evidence of a stopping of breath. Similarly therefore to the decision in R v Green (No. 3)  ACTSC 96, it was evidence which did not indicate such an impediment, even at a minimum, for one breath or for one second. As a consequence, the jury was directed, as a matter of law, in relation to count 2 on the 23rd of July 2018 to return a verdict of not guilty, and that occurred.
- Published Case Name:
R v AJB
- Shortened Case Name:
R v AJB
 QDC 169
30 Aug 2019