The Choke, Strangle, Suffocate Offence: A Stranglehold on Common Sense? (ACT)
When someone says “you’re choking me”, the first thing that springs to mind is that they must not be able to breathe. The Macquarie Dictionary, often used as a reference by the courts, supports this assumption, defining ‘choke’ as
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; …verb (i) 9. To suffer strangling or suffocation…
However, the definition of choke in the ACT Crimes Act 1900 is very different. At section 27, ‘choke a person’ is defined as ‘apply pressure to any extent to the person’s neck”. Choke is defined so broadly in the Act that it can include pushing someone in the neck.
A brief history
In the ACT, a person can be charged with the offence of intentionally and unlawfully choking, suffocating or strangling another person in contravention of section 28(2)(a) of the Crimes Act. If a court finds them guilty, they are liable to a maximum penalty of imprisonment for 5 years.
Prior to 2015, this offence did not exist. A similar offence contained in section 27 of the Crimes Act involved a situation where the victim was rendered insensible or unconscious. In 2015, a sweep of reforms in the domestic violence context led to the introduction of the offence at section 28(2)(a), which eliminated the additional requirement that a victim be rendered insensible or unconscious. Up until this point, the words ‘choke’, ‘strangle’ and ‘suffocate’ were not defined.
In 2019, the ACT Parliament legislated definitions of ‘choke’, ‘strangle’ and ‘suffocate’. These provided that the offence was made out if any pressure was applied to the neck, to any extent. The Attorney-General’s Explanatory Statement justified the definitions as follows:
“The amendments to the Crimes Act amend provisions relating to the impact of strangulation, choking or suffocation on victims to align current practice to the original policy intent of the provisions.
The original policy intent was to recognise the serious impacts on long-term health and the increased risk of mortality when any pressure is applied to the neck. This is especially the case in domestic and family violence matters. The policy intent was designed to ensure that the prosecution is not required to prove that there was a significant restriction to the airways, however in the recent case of R v Green (No 3)  ACTSC 96, it was held that the offence under section 28 required proof that the victim’s breathing was stopped, not merely impeded or restricted. This was not the original policy intent and these amendments make that clear in legislation.”
What is the case of Green (No 3)?
The Attorney-General introduced these statutory definitions to remedy other definitions reached by the ACT Supreme Court in the 2019 case of R v Green (No 3)  ACTSC 96 (Green (No 3)).
Prior to Green (No 3), the legislation did not define choke, strangle or suffocate, and the courts had given little consideration to their definition. In Green No 3, Timothy James Green was charged with two counts of choking, suffocating or strangling his mother in contravention of section 28(2)(a) of the Crimes Act. The Crown alleged that he had placed his hands around his mother’s neck and squeezed, causing her to feel dizzy (Count 1) and placed a pillow over his mother’s head, smothering her (Count 2). However, at some point, Mr Green’s mother took back the allegations, stating that she made it all up in a moment of anger toward her son.
Counsel for Mr Green made a submission on the seventh day of the trial that there was no case to answer, which Her Honour, Judge Loukas-Karlsson, ultimately accepted. In accepting the no-case submission, Her Honour was required to answer two questions, at :
- How the elements of “chokes” “suffocates” and “strangles” for the purposes of s 28(2)(a) should be interpreted with respect to their respective effects on the breathing of a victim; and
- As a consequence of the interpretation of these elements of the offence, whether the state of the evidence was such that the accused’s no-case submission should be upheld.
The first question is concerned with how a person’s act affects the breathing of the victim, rather than the act itself (e.g., to strangle is to externally compress the neck; to choke is to block the airway etc.).
The Crown submitted that the person’s act need only impede or restrict the breath of the victim. Counsel for Mr Green submitted that the act needed to actually stop the victim’s breath.
Her Honour agreed with Counsel for Mr Green; the Crown must prove that the victim’s breath stopped and was not merely impeded or restricted. In coming to this conclusion, Her Honour considered how to interpret the law, including but not limited to the following:
- That to ‘impede or restrict breath’ was ambiguous, and invited questions about the extent to which the breath needed to be impeded or restricted before the offence was made out;
- That because the Crimes Act is a penal statute, calling for a penalty not merely a remedy or compensation, it should interpreted narrowly;
- That the common theme of choke, strangle and suffocate in the Macquarie Dictionary was that breath was stopped;
- That stopping breath was consistent with the other offences listed at section 28(2) such as setting a trap, administering poison and causing an explosion.
Her Honour ultimately decided that Mr Green had no case to answer because, on the evidence available, and taken at its highest, he had not ‘stopped’ his mother’s breath.
As set out above, Parliament responded and drafted new definitions of choke, strangle and suffocate.
Current definitions of choke, strangle and suffocate
‘Choke’, ‘strangle’ and ‘suffocate’ are defined at section 27(1) of the Crimes Act. ‘Strangle’ is the same as choke, “strangle, a person, includes apply pressure, to any extent, to the person’s neck”.
Therefore, if the Crown alleges that a person choked or strangled another person, the courts are not required to contemplate whether breath is stopped, or even the extent of restriction of breath, but rather, whether, pressure was applied to any extent to the person’s neck.
On the other hand, ‘suffocate’ contemplates the restriction of a person’s breath. It is newly defined as obstructing or interfering with, to any extent, a person’s respiratory system or accessory systems of respiration, as well as impeding to any extent the person’s respiration.
The more serious offence of rendering a person insensible or unconscious remains at section 27(3) of the Crimes Act, attracting a term of imprisonment of 10 years.
What the prosecution must prove
If a person is charged with the choke, strangle, suffocate offence at section 28(2)(a) of the Crimes Act, they should consider the Explanatory Statement to the Crimes Act, where the Attorney-General stated:
“Irrespective of the change in definition, the elements of each offence are still required to be proved beyond reasonable doubt. So, as an example, for section 28 the prosecution would still be required to prove that the conduct was both intentional and unlawful. While the definition has been broadened in legislation, the element of the conduct being ‘unlawful’ addresses the issue of benign pressure to the neck. This is similar to the way that benign contact could constitute an assault if not for the term ‘unlawfully’.”
The prosecution is required to prove, beyond a reasonable doubt, that:
- The accused intentionally
- And unlawfully
- Applied pressure to the victim’s neck
If a person throws a punch aiming for the arm, and the victim ducks to avoid the punch resulting in the person making contact with their neck, the person may not have the requisite intention for a choke offence. They may, however, be guilty of the less serious offence of assault for which, on a finding of guilt, and if there is no actual bodily harm, they will be liable to a lesser term of imprisonment of 2 years.
In assessing whether the contact was unlawful, consider that there may have been a lawful excuse for applying pressure to the other’s neck. For example:
- Did they consent to the pressure – for example, during a massage;
- Did it occur during the course of an ordinary social activity – for example, a rugby tackle;
- Was the person lawfully disciplining a child; or
- Were they acting in self-defence?
A Final Say
The question of what choke means came before the High Court of Australia in 2020, although the High Court was concerned with the proper meaning of the section in the Queensland legislation, not in the ACT. For our purposes, the effect of the High Court’s decision is that, in Queensland, to choke is to restrict and/or impede breath, not stop breath.
The ACT has taken, what may be construed as a more extreme approach, where legislators have simply done away with the question of whether a person’s ability to breath was affected.
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