The appellant was tried for the offence of choking in a domestic setting under s 315A Criminal Code 1899. The question on appeal was whether the trial judge had correctly directed the jury as to the meaning of the word “choked”. When summing up, the trial judge directed the jury that “choked” meant to stop or hinder the breathing of a person. In the result, the Court concluded that the judge had appropriately directed the jury as to the meaning of the word “choked” and dismissed the appeal (McMurdo JA and Boddice J agreeing with Mullins JA).
McMurdo and Mullins JJA and Boddice J
17 April 2020
The appellant was tried for the offence of choking in a domestic setting under s 315A Criminal Code 1899 after he reportedly placed his hand around his partner’s throat, and without squeezing, pinned her to a bed, and used his body weight to stop her from speaking. , –. When summing up, the trial judge described the offence as it was alleged by the Crown as being constituted by the appellant having “stopped or hindered” his partner’s breathing. . A handout provided to the jury similarly explained the term “choked” as “an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’”. .
The appellant was convicted of the offence, and subsequently appealed against his conviction on grounds including that the trial judge erred in directing the jury as to the definition of the term “choking”. –. Relevantly, the appellant contended that “choking”, in the context of s 315A Criminal Code 1899, means “stopping the breath by internal pressure”. . In support of that contention, he argued that the word must bear a different meaning to the words “strangles” and “suffocates”, which also appear in s 315A(1)(a) Criminal Code 1899. . He also submitted that the term should be narrowly construed, by reason of it appearing in a penal provision. .
Whether the term “choking” required a stoppage of breath
Mullins JA observed that there is no definition of “chokes” for the purpose of the offence in s 315A Criminal Code 1899. . Her Honour noted that as such, the purposive approach to interpretation necessitated by s 14A(1) Acts Interpretation Act 1954 (“AI Act”), applied to the proper construction of that term. , . Although s 14A(1) AI Act is qualified by s 14A(2) AI Act, which provides that s 14A(1) does not create or extend criminal liability, her Honour clarified that s 14A(2) does not otherwise preclude the purposive interpretation of a penal provision. , .
Contrary to the appellant’s arguments regarding a narrow construction of the provision, Mullins JA reasoned, by reference to A2 v The Queen (2019) 93 ALJR 1106, that penal provisions are subject to the ordinary rules of statutory construction. –, . Consistently with the observations of Kiefel CJ and Keane J in A2 v The Queen (at ), her Honour highlighted that the effect of s 14A(2) AI Act, is that any ambiguity which remains in the proper interpretation of a penal provision after the ordinary rules of construction are applied, is resolved in favour of an accused. .
Mullins JA identified that, having regard to extrinsic materials, s 315A Criminal Code 1899 seeks to deter one domestic partner from choking, strangling or suffocating the other, “because it is inherently dangerous, and experience shows that if repeated, death or serious injury may eventually result”. –, –. Her Honour considered that there was no remaining ambiguity for the purpose of s 14A(2) AI Act. . In order to achieve the purpose of the provision, her Honour explained that “chokes” in the context of s 315A Criminal Code 1899 is to be construed as being “the act … that hinders or restricts the breathing of [a] victim”. .
In the result, the Court dismissed the appeal against conviction (McMurdo JA and Boddice J agreeing with Mullins JA). , –.