District Court
R v Fraser [2020] SADC 127 (2 September 2020) – South Australian District Court
‘Actus reus’ – ‘Mens rea’ – ‘Recklessness’ – ‘Strangulation’
Charges: Choking, suffocating or strangling a person in a domestic setting x 1.
Proceedings: Application for ruling whether mens rea is an element of the offence.
Decision and reasoning: Mens rea is an element of the offence.
There is no Supreme Court authority that has considered the elements of this offence, and, in particular, whether mens rea is an element of the offence. The judge in this case agreed with the reasoning of the QCA in R v HBZ (2020) with respect to actus reas:
[17] In my view, the actus reus of choking, suffocating or strangling is the stopping, or significantly hindering or restricting of the complainant’s breathing, whether by application of force or by other means.
…
[20] Even where the actus reus does not involve the application of pressure or force, for example, the luring of the victim into an airless chamber, the placing of a plastic bag over the victim’s face, or the administration of a poison that causes an anaphylactic reaction, the resultant stopping or significantly hindering or restricting of the victim’s breathing is not a separate element of the offence but is the very evidence required to prove that the conduct (the luring, placing of the bag, the administration of the poison) was the act of choking, suffocation or strangling.
[21] For these reasons I conclude that, if mens rea is an element of the offence, the intention accompanying the conduct must be an intention to stop or significantly hinder or restrict the victim’s breathing.
[22] There is no express or implied exclusion of mens rea in s 20A. The offence in s 20A was created to avoid ‘relying on existing offences such as causing harm or serious harm, endangering life or attempted murder’. All of those offences require proof of mens rea. In enacting s 20A as a substitute for those offences and in dispensing with any requirement to prove injury or harm and yet providing a maximum penalty of 7 years imprisonment, Parliament cannot have intended to dispense with the element of mens rea. However, the offence does not require proof of harm or injury and thus does not require proof of a specific intent with respect to the consequence of the prohibited conduct.
[23] The very act the accused intends to perform must be to stop, significantly hinder or restrict the complainant’s breathing. The intention to choke, suffocate or strangle will generally be inferred from the conduct itself but may also be established by additional evidence.
[24] Accordingly, I conclude that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s 20A of the CLCA. On a charge under that provision, the prosecution bears the onus of proving that the accused intended to choke, suffocate or strangle the complainant, that he, is intended to stop, significantly hinder or restrict the complainant’s breathing.
…
[30] Accordingly, I consider it unlikely that Parliament would have intended to exclude recklessness as an alternative basis for liability …
[31] As there is no statutory definition of recklessness for the purposes of s 20A, and given the characterisation by Parliament of this offence as an indicator of escalation to domestic homicide, it is appropriate to apply the common law test for recklessness set out by the High Court in Crabbe.
[32] I rule that the elements of the offence under s 20A are:
•
At the time of the alleged offence the accused was or had been, in a relationship with the complainant.
•
The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or significantly hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or significantly hinder or restrict the complainant’s respiration.
•
The complainant did not consent to being choked, suffocated or strangled.
•
The act of choking, suffocating or strangling the complainant was done without lawful justification.
R v Rogers [2020] SADC 72 (16 June 2020) – South Australian District Court
‘Coercive control’ – ‘Controlling behaviour’ – ‘Credibility of complainant’ – ‘Evidence’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Step-children’ – ‘Victims as (alleged) perpetrators’
Charges: Causing harm with intent to cause harm x 1; damaging property x 1; assault x 1; rape x 2; assault causing harm x 1.
Case type: Judge only trial.
Facts: The accused man was charged with 6 offences alleged to have been committed against the complainant woman between 2016 and 2018 when they were in a ‘romantic relationship’ and were living together for periods of time. The offences included causing harm with intent to cause harm, damaging property, assault, rape, and assault causing harm. The alleged offences were committed in a domestic setting, at different addresses where the complainant resided with her 3 children, apart from periods on weekends or school holidays when they stayed with their respective fathers. The prosecution alleged that the relationship was characterised by the accused’s violence and aggression, and that the complainant was trapped in a destructive cycle of physical violence, abuse, threats and controlling behaviour, which usually occurred in the presence of her young children. According to the prosecution, the charges are specific examples of a general pattern of behaviour demonstrated by the accused in the course of the relationship.
In relation to Count 1, the accused was alleged to have choked the complainant. He also punched and slapped her in the face (Count 3). Further, the complainant allegedly woke to the sensation of her vagina being penetrated (Count 4), and the accused further penetrated her with his fingers (Count 5). The accused also allegedly threw the complainant and stood on her ankle with his body weight, causing extreme pain (Count 6).
Held: Tracey J held that the prosecution failed to exclude the defence case as a reasonable possibility on any of the charges, and found the accused not guilty on each count ([281]-[282]). Much of the complainant’s evidence was inconsistent and unreliable. Her Honour was troubled by the delay the complainant made in reporting Count 1 to police and the delay in providing the letter relied on by the prosecution as the accused’s acknowledgment of the violent acts that had occurred the previous night ([234]). Whilst the letter could be interpreted as referring to the event where he strangled the complainant as she alleged, it could also be viewed as an apology for calling her a bad mother, threatening suicide, punching the wall and grabbing her arms as the defence alleged ([236]).
Much of the defence case was focused on blaming the complainant for issues in the relationship, consistent with the threatening and intimidating abuse she allegedly experienced. Her Honour rejected the defence argument that she was often the perpetrator of violence. The evidence in relation to the complainant’s previous relationships did not demonstrate a propensity for violence or false reporting to police. It was clear that on some occasions, she had not been the instigator and/or was the victim. Tracey J also formed the impression that the accused exhibited manipulative behaviour ([272]). Moreover, behaviours, such as the complainant’s contacting police, making statements on some occasions and not others, withdrawing complaints, denying incidents occurred, allowing the accused back into her life and seeking variation to intervention orders, are common features in serious domestic violence cases. Abusive and violent relationships give rise to behaviours that may appear too odd or counterintuitive to be believed ([273]).
Tracey J did not doubt that some aspects of the complainant’s evidence were true or that she loved the accused. However, she did have difficulty assessing the complainant’s evidence overall. Whilst she sometimes appeared to be focused and doing her best to describe the events, she also appeared distant, non-committal and prone to exaggeration. She was open about her methamphetamine use and the fact that she had used drugs in her home, albeit not in front of her children ([274]). At times, the complainant’s manner seemed perplexing and her Honour had difficulty accepting her version of events as credible. The differences between her evidence and what she told police were troubling. Such inconsistencies could not be excused, even allowing for the passage of time, the frequent and repetitive nature of alleged abuse blurring a memory of an event, or the chaotic lifestyle that often accompanies drug use ([275]). It appeared much of her angst stemmed from the accused’s relationship with another woman. The complainant’s credibility was undermined by her initial refusal to accept the accuracy of texts she had sent to this woman and her denial that the relationship with the accused did not affect her, despite text messages to the contrary ([276]). Further, her Honour noted that although domestic violence victims may not seek attention for the injuries they sustain and may take extraordinary steps to conceal evidence of abuse, the complainant’s graphic descriptions of her injuries and episodes of violence were not borne out by other evidence. There was no evidence from the complainant’s consultations with doctors of any bruising or injury consistent with the allegations. Her daughter’s distress, apparently in response to questions about drugs, raised the question of whether there had been some discussion between her and the complainant before giving evidence ([279]). Tracey J observed that the police officers who gave evidence appeared to be careful and impressive witnesses who would have assessed and recorded any sign of injury ([280]).
R v Hanks [2019] SADC 139 (16 September 2019) – South Australian District Court
‘Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Propensity reasoning’ – ‘Sexual and reproductive abuse’ – ‘Uncharged acts’
Charges: 4 x assault causing harm (Counts 1-4), 1 x rape (Count 5), 2 x aggravated assault causing harm (Counts 6-7), 1 x aggravated assault (Count 8), 1 x aggravated creating likelihood of harm (Count 9)
Case type: Criminal trial by judge alone
Facts: The accused was charged with 4 counts of assault causing harm, 1 count of rape, 2 counts of aggravated assault causing harm, 1 count of aggravated assault and 1 count of aggravated creating likelihood of harm. The complainant was his former de facto partner ([1]). The prosecution argued that the charged acts were committed during their de facto relationship ([3]). The defence case, however, was that the relationship was not a violent one and that the charged acts of violence and rape did not take place ([5]).
Held: The accused was found guilty of Counts 1-5 and 7-9. Judge Chapman did not find him guilty of Count 6, but guilty of the alternative offence of aggravated assault ([188]-[221]). The complainant gave evidence that the accused suffered from alcohol and drug abuse, and would get emotional about his past, resulting in rage ([19]-[20]). Judge Chapman emphasised that she avoided using the evidence in any prejudicial way against the accused, such as to reason that he was generally violent and therefore must have committed the charged acts ([187]). Her Honour noted that the fact the accused used drugs did not mean that he was a bad person or had the propensity to commit the charged offences. Rather, her Honour stated that the evidence of his alcohol and/or drug use may only partly explain his aggressive behaviour towards the complainant and his inability to control outbursts of rage ([21]). Evidence of various uncharged acts was further discussed at [23]-[52]. Judge Chapman was satisfied that all the uncharged acts occurred as described by the complainant and showed that the charged acts did not "come out of the blue" ([185]).
R v Schmidt [2017] SADC 98 (30 August 2017) – South Australian District Court
‘Admissibility’ – ‘Evidence not accepted’ – ‘Jealousy’ – ‘Judge-only trial’ – ‘Strangulation’ – ‘Tendency evidence’ – ‘Uncharged acts of violence’
Charges: Aggravated serious criminal trespass in a place of residence x 1; Indecent assault x 1; Assault x 1; Theft x 1.
Case type: Trial by a single judge.
Facts: The complainant alleged that the accused entered her house, strangled her, grabbed her in the vagina, punched her in the face and stole her mobile phone ([23]-[[26]). The accused denied all the allegations ([6]).
Issues: Whether the accused should be convicted.
Decision and Reasoning: Judge Rice convicted the accused on counts 1, 2 and 4 ([56]). In relation to Count 3 (assault), Rice J found that it was not proved beyond reasonable doubt that the accused punched the complainant ([54]).
Evidence of uncharged acts of violence occurring earlier in the relationship was also admitted. The prosecution said that it showed that ‘the accused had a tendency to act in a violent and controlling manner’ towards the complainant ([12]). However, Judge Rice ignored the evidence on the basis that some of the complainant’s evidence was inconsistent, and was not supported by independent evidence ([20]).
District Court
R v Fraser [2020] SADC 127 (2 September 2020) – South Australian District Court
‘Actus reus’ – ‘Mens rea’ – ‘Recklessness’ – ‘Strangulation’
Charges: Choking, suffocating or strangling a person in a domestic setting x 1.
Proceedings: Application for ruling whether mens rea is an element of the offence.
Decision and reasoning: Mens rea is an element of the offence.
There is no Supreme Court authority that has considered the elements of this offence, and, in particular, whether mens rea is an element of the offence. The judge in this case agreed with the reasoning of the QCA in R v HBZ (2020) with respect to actus reas:
[17] In my view, the actus reus of choking, suffocating or strangling is the stopping, or significantly hindering or restricting of the complainant’s breathing, whether by application of force or by other means.
…
[20] Even where the actus reus does not involve the application of pressure or force, for example, the luring of the victim into an airless chamber, the placing of a plastic bag over the victim’s face, or the administration of a poison that causes an anaphylactic reaction, the resultant stopping or significantly hindering or restricting of the victim’s breathing is not a separate element of the offence but is the very evidence required to prove that the conduct (the luring, placing of the bag, the administration of the poison) was the act of choking, suffocation or strangling.
[21] For these reasons I conclude that, if mens rea is an element of the offence, the intention accompanying the conduct must be an intention to stop or significantly hinder or restrict the victim’s breathing.
[22] There is no express or implied exclusion of mens rea in s 20A. The offence in s 20A was created to avoid ‘relying on existing offences such as causing harm or serious harm, endangering life or attempted murder’. All of those offences require proof of mens rea. In enacting s 20A as a substitute for those offences and in dispensing with any requirement to prove injury or harm and yet providing a maximum penalty of 7 years imprisonment, Parliament cannot have intended to dispense with the element of mens rea. However, the offence does not require proof of harm or injury and thus does not require proof of a specific intent with respect to the consequence of the prohibited conduct.
[23] The very act the accused intends to perform must be to stop, significantly hinder or restrict the complainant’s breathing. The intention to choke, suffocate or strangle will generally be inferred from the conduct itself but may also be established by additional evidence.
[24] Accordingly, I conclude that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s 20A of the CLCA. On a charge under that provision, the prosecution bears the onus of proving that the accused intended to choke, suffocate or strangle the complainant, that he, is intended to stop, significantly hinder or restrict the complainant’s breathing.
…
[30] Accordingly, I consider it unlikely that Parliament would have intended to exclude recklessness as an alternative basis for liability …
[31] As there is no statutory definition of recklessness for the purposes of s 20A, and given the characterisation by Parliament of this offence as an indicator of escalation to domestic homicide, it is appropriate to apply the common law test for recklessness set out by the High Court in Crabbe.
[32] I rule that the elements of the offence under s 20A are:
•
At the time of the alleged offence the accused was or had been, in a relationship with the complainant.
•
The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or significantly hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or significantly hinder or restrict the complainant’s respiration.
•
The complainant did not consent to being choked, suffocated or strangled.
•
The act of choking, suffocating or strangling the complainant was done without lawful justification.
R v Rogers [2020] SADC 72 (16 June 2020) – South Australian District Court
‘Coercive control’ – ‘Controlling behaviour’ – ‘Credibility of complainant’ – ‘Evidence’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Step-children’ – ‘Victims as (alleged) perpetrators’
Charges: Causing harm with intent to cause harm x 1; damaging property x 1; assault x 1; rape x 2; assault causing harm x 1.
Case type: Judge only trial.
Facts: The accused man was charged with 6 offences alleged to have been committed against the complainant woman between 2016 and 2018 when they were in a ‘romantic relationship’ and were living together for periods of time. The offences included causing harm with intent to cause harm, damaging property, assault, rape, and assault causing harm. The alleged offences were committed in a domestic setting, at different addresses where the complainant resided with her 3 children, apart from periods on weekends or school holidays when they stayed with their respective fathers. The prosecution alleged that the relationship was characterised by the accused’s violence and aggression, and that the complainant was trapped in a destructive cycle of physical violence, abuse, threats and controlling behaviour, which usually occurred in the presence of her young children. According to the prosecution, the charges are specific examples of a general pattern of behaviour demonstrated by the accused in the course of the relationship.
In relation to Count 1, the accused was alleged to have choked the complainant. He also punched and slapped her in the face (Count 3). Further, the complainant allegedly woke to the sensation of her vagina being penetrated (Count 4), and the accused further penetrated her with his fingers (Count 5). The accused also allegedly threw the complainant and stood on her ankle with his body weight, causing extreme pain (Count 6).
Held: Tracey J held that the prosecution failed to exclude the defence case as a reasonable possibility on any of the charges, and found the accused not guilty on each count ([281]-[282]). Much of the complainant’s evidence was inconsistent and unreliable. Her Honour was troubled by the delay the complainant made in reporting Count 1 to police and the delay in providing the letter relied on by the prosecution as the accused’s acknowledgment of the violent acts that had occurred the previous night ([234]). Whilst the letter could be interpreted as referring to the event where he strangled the complainant as she alleged, it could also be viewed as an apology for calling her a bad mother, threatening suicide, punching the wall and grabbing her arms as the defence alleged ([236]).
Much of the defence case was focused on blaming the complainant for issues in the relationship, consistent with the threatening and intimidating abuse she allegedly experienced. Her Honour rejected the defence argument that she was often the perpetrator of violence. The evidence in relation to the complainant’s previous relationships did not demonstrate a propensity for violence or false reporting to police. It was clear that on some occasions, she had not been the instigator and/or was the victim. Tracey J also formed the impression that the accused exhibited manipulative behaviour ([272]). Moreover, behaviours, such as the complainant’s contacting police, making statements on some occasions and not others, withdrawing complaints, denying incidents occurred, allowing the accused back into her life and seeking variation to intervention orders, are common features in serious domestic violence cases. Abusive and violent relationships give rise to behaviours that may appear too odd or counterintuitive to be believed ([273]).
Tracey J did not doubt that some aspects of the complainant’s evidence were true or that she loved the accused. However, she did have difficulty assessing the complainant’s evidence overall. Whilst she sometimes appeared to be focused and doing her best to describe the events, she also appeared distant, non-committal and prone to exaggeration. She was open about her methamphetamine use and the fact that she had used drugs in her home, albeit not in front of her children ([274]). At times, the complainant’s manner seemed perplexing and her Honour had difficulty accepting her version of events as credible. The differences between her evidence and what she told police were troubling. Such inconsistencies could not be excused, even allowing for the passage of time, the frequent and repetitive nature of alleged abuse blurring a memory of an event, or the chaotic lifestyle that often accompanies drug use ([275]). It appeared much of her angst stemmed from the accused’s relationship with another woman. The complainant’s credibility was undermined by her initial refusal to accept the accuracy of texts she had sent to this woman and her denial that the relationship with the accused did not affect her, despite text messages to the contrary ([276]). Further, her Honour noted that although domestic violence victims may not seek attention for the injuries they sustain and may take extraordinary steps to conceal evidence of abuse, the complainant’s graphic descriptions of her injuries and episodes of violence were not borne out by other evidence. There was no evidence from the complainant’s consultations with doctors of any bruising or injury consistent with the allegations. Her daughter’s distress, apparently in response to questions about drugs, raised the question of whether there had been some discussion between her and the complainant before giving evidence ([279]). Tracey J observed that the police officers who gave evidence appeared to be careful and impressive witnesses who would have assessed and recorded any sign of injury ([280]).
R v Hanks [2019] SADC 139 (16 September 2019) – South Australian District Court
‘Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Propensity reasoning’ – ‘Sexual and reproductive abuse’ – ‘Uncharged acts’
Charges: 4 x assault causing harm (Counts 1-4), 1 x rape (Count 5), 2 x aggravated assault causing harm (Counts 6-7), 1 x aggravated assault (Count 8), 1 x aggravated creating likelihood of harm (Count 9)
Case type: Criminal trial by judge alone
Facts: The accused was charged with 4 counts of assault causing harm, 1 count of rape, 2 counts of aggravated assault causing harm, 1 count of aggravated assault and 1 count of aggravated creating likelihood of harm. The complainant was his former de facto partner ([1]). The prosecution argued that the charged acts were committed during their de facto relationship ([3]). The defence case, however, was that the relationship was not a violent one and that the charged acts of violence and rape did not take place ([5]).
Held: The accused was found guilty of Counts 1-5 and 7-9. Judge Chapman did not find him guilty of Count 6, but guilty of the alternative offence of aggravated assault ([188]-[221]). The complainant gave evidence that the accused suffered from alcohol and drug abuse, and would get emotional about his past, resulting in rage ([19]-[20]). Judge Chapman emphasised that she avoided using the evidence in any prejudicial way against the accused, such as to reason that he was generally violent and therefore must have committed the charged acts ([187]). Her Honour noted that the fact the accused used drugs did not mean that he was a bad person or had the propensity to commit the charged offences. Rather, her Honour stated that the evidence of his alcohol and/or drug use may only partly explain his aggressive behaviour towards the complainant and his inability to control outbursts of rage ([21]). Evidence of various uncharged acts was further discussed at [23]-[52]. Judge Chapman was satisfied that all the uncharged acts occurred as described by the complainant and showed that the charged acts did not "come out of the blue" ([185]).
R v Schmidt [2017] SADC 98 (30 August 2017) – South Australian District Court
‘Admissibility’ – ‘Evidence not accepted’ – ‘Jealousy’ – ‘Judge-only trial’ – ‘Strangulation’ – ‘Tendency evidence’ – ‘Uncharged acts of violence’
Charges: Aggravated serious criminal trespass in a place of residence x 1; Indecent assault x 1; Assault x 1; Theft x 1.
Case type: Trial by a single judge.
Facts: The complainant alleged that the accused entered her house, strangled her, grabbed her in the vagina, punched her in the face and stole her mobile phone ([23]-[[26]). The accused denied all the allegations ([6]).
Issues: Whether the accused should be convicted.
Decision and Reasoning: Judge Rice convicted the accused on counts 1, 2 and 4 ([56]). In relation to Count 3 (assault), Rice J found that it was not proved beyond reasonable doubt that the accused punched the complainant ([54]).
Evidence of uncharged acts of violence occurring earlier in the relationship was also admitted. The prosecution said that it showed that ‘the accused had a tendency to act in a violent and controlling manner’ towards the complainant ([12]). However, Judge Rice ignored the evidence on the basis that some of the complainant’s evidence was inconsistent, and was not supported by independent evidence ([20]).