Case Law Update – What does “choking” mean under the Queensland Criminal Code?

R v AJB [2019] QDC 169 - August 2019

The recent District Court of Queensland decision of R v AJB [2019] QDC 169 discusses the legal meaning of the words “choke”, “strangle” and “suffocate” under section 315A of the Queensland Criminal Code.

Background

Section 315A of the Criminal Code makes it a criminal offence to “choke”, “strangle”, or “suffocate” a person in a domestic setting.  It carries a maximum penalty of 7 years’ imprisonment.

The offence was introduced by the Palaszczuk Government on 5 May 2016 following a recommendation made by the Special Taskforce on Domestic and Family Violence in Queensland.

The Criminal Code does not provide a definition of ‘chokes, suffocates or strangles’ and there has been uncertainty about what level of conduct is required to fall within the provision.  For instance, is external compression on the throat or windpipe sufficient, or does the complainant’s breathing need to be affected?

Brief Summary of R v AJB [2019] QDC 169

In late 2018, the defendant (AJB) was charged with assault occasioning bodily harm (domestic violence offence) and choking in a domestic setting (domestic violence offence). The complainant was AJB’s daughter.

The prosecution evidence was that there was an argument between AJB and her daughter. AJB punched the complainant and choked by placing an arm around her daughter’s throat.

In her statement to police, the complainant said that during the incident she was unable to breath.  During her evidence at trial, however, she said instead that she was able to breathe during the incident and whilst she may have had difficulties it was largely due to her distressed state.

As a result of her new evidence, there was a legal question as to whether all elements of the offence of choking had been satisfied.

Judge Coker directed that the jury return a verdict of not guilty on the basis that the prosecution could not prove that the complainant had stopped breathing whilst being choked.

Concluding Comments

R v AJB is the first decision to deal with the legal meaning of “choking”.  Although it is at the District Court level, it will nonetheless provide some guidance to practitioners in this area.  The ruling supports a narrow definition whereby the offence of choking should only be charged where there is evidence that the complainant was unable to breathe.