How To Understand the Criminal Law: Consent and Liability

[Legislation: Criminal Law Consolidation Act 1935 (South Australia)]

I INTRODUCTION

A criminal offence typically consists of two components: physical elements and fault elements. However, s 20A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) regarding ‘’choking, suffocation or strangulation” (‘’CSS’’), particularly par. (1) of s 20A, appears to be completely silent on the fault elements, such as intention, recklessness, knowledge, or negligence. This omission might lead us to think that s 20A constitutes an absolute liability offence. Nevertheless, a He Kaw Teh analysis in the recent South Australian case R v Fraser might reveal the contrary.

II LEGAL ANALYSIS

**(I) Application of He Kaw Teh Analysis**

A) Is the common law presumption displaced under s 20A?

The fundamental principle established in the He Kaw Teh case refers to the classic common law presumption that mens rea in criminal law should be ‘’an essential ingredient in every (criminal) offence”, ^[1]and is only displaced “either by the words of the statute or by the subject-matter”.^[2] In modern society, the third factor to displace the presumption is how helpful the liability offence is to regulatory enforcement.^[3] Though it is difficult to determine Parliament’s actual intention regarding the ‘’missing piece’’, we can use these three methods to examine one position in R v. Fraser. In this case, the prosecution argues that the mental ingredient is implied in s 20A due to ‘’the nature of the offence itself, the absence of any requirement to prove harm and the high maximum penalty’’.^[4]

The Words of the Statute

First, since the legal meaning should be “the ordinary meaning’’, ^[5] we can rely on the dictionary to interpret some keywords in the statute. “Choking’’ means “to check or block normal breathing by compressing or obstructing the trachea’’. ^[6]To ‘’strangle’’ is ‘’to choke to death by compressing the throat with something (such as a hand or a rope) (Throttle), or to obstruct seriously or fatally normal breathing. “ ^[7]

Breaking down the meaning of ‘’CSS’’, we can see that these words (or actions) illustrate a complete journey of a crime. The starting point is the offender compressing (or applying force around) the throat, and the endpoint is the victim being unable to breathe normally, stopping breathing, or becoming unconscious.

Intention Implied

Brennan J summarized that voluntariness and intention are implied element of every statutory offence. ^[8] The defence counsel in R v Fraser avoided acknowledging that Mr. Fraser ‘’applied force’’, but ‘’CSS’’ requires applying force, ^[9] which must be an element of such physical conduct. When the offender ‘’applied force’’, he most likely ‘’voluntarily applied force’’ as long as he is a rational adult ‘’not subject to force or duress and so has the opportunity to exercise true choice’’. ^[10] Therefore, the implied ‘’voluntary choice’’ precludes the choice by accident, which is the opposite of the choice by design. This also means he intends to do so. The meaning of ‘’voluntary’’ also includes ‘’something done by design or intention’’. ^[11]

Vanstone J supports this view in Police v Harrison, although she refers to s 20(1)(c ). She argues that “the use of the verb ‘to apply’ connotes a deliberation about the conduct. It would be a misuse of both verbs to allow that a threat to apply force could consist of, for example, an extravagant hand movement made by one without any thought of the impact it might have on the other.’’ ^[12]

The Second Reading Speech

The second reading speech of s 20A stresses that ‘’the conscious and voluntary act of “CSS” proves the offence’’ and ‘’no requirement for harm to be intended or caused’’, ^[13] This likely refers to the ‘’specific intent to cause harm” identified by Brennan J., who classifies intent into ‘’general intent and specific intent’’, the former attached to the “act’’ and the latter links to the “result” (bodily harm). ^[14] However, due to the uniqueness of these words (or actions) of ‘’CSS’’, it is absurd to divide the intent in this way since the harmful result is the indispensable part of this physical element when we interpret it. In other words, these physical elements naturally consist of the act and the results. Hence, in s 20A, the general intent and specific intent must be united as one intention implied as mens rea of this offence.

Knowledge Implied

On the other hand, the intention alone does not necessarily render an act a crime. ‘’The definition of a criminal offence ordinarily comprehends only the prohibited act or….the circumstance in which the act is done…’’. ^[15] It depends on what the law prohibits. Brennan J. stated that the first presumption is to determine whether the offender, at the time of committing the conduct, “knows the circumstances which make the doing of that act an offence’’. ^[16] More specifically, if the legislation is silent to the mental state, then classic view of criminal culpability is that “knowledge is the state of mind.’’ ^[17]

In s 20A, the legislative intention emphasizes the circumstances that make the act an offence. The phrase ‘’without that other person’s consent’’ is an objective statement. Does the law say or imply that the offender must personally know this circumstance, particularly ‘’at the time’’ of committing the offence?

Consent?

s 20A does not mention mens rea, but it sits between divs 7 and divs 7A, which share elements such as circumstance, intention and knowledge. s 20 (1) (b) stipulates that ‘’…knowing that the victim might reasonably object to the contact in the circumstance…’’. This means the law requires the offender to knowingly apply force to the victim without consent, because ‘’objection to the contact’’ means ‘’without the consent’’. s 29 under division 7A also requires the offender’s subjective knowledge when intentionally or recklessly doing an act that “endangers life or creates a risk of serious harm’’,^[18]although the knowledge in s 29 relates to the act itself, not the circumstance.^[19]

The fact that s 20A is created out of these offences indicates that Parliament likely intended to inherit the “spirit’’ of the shared elements or tests in both divs 7 and divs 7A.

Recklessness

In R v Fraser, the court found implied recklessness in s 20A based on the test of recklessness set out in Crabbe v The Queen, that ‘’a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.’’^[20]

If the offender can foresee the high probability of resulting death (in our discussion, stopping respiration), he may also foresee the high probability of objection/resistance, which signals a lack of consent. These physical elements have an inherently dangerous nature that might quickly lead to death. Even if a person may consent to harm or serious harm, they will rarely consent to death (or near death). ^[21]

Causing Harm

In this situation, the Prosecution must prove that the offender continued to ‘’apply force’’ after the victim resisted or objected to the ‘’CSS’’ (assuming resistance is possible during a very short time). This will prove the specific intent that the offender is determined to cause serious harm (to bring about the results), and the knowledge that the offender personally knows he does not have consent to do so. Similar to the definition of recklessness in R v Dransfield, the recklessness here needs ‘’proof of an active thought process’’. ^[22] Here, the ‘’active thought process’’ can be understood as an interactive process between the offender and the victim.

Penalty Structure

Secondly, for an assault in s 20 (3) or (4), a basic offence attracts a maximum two- or three-year jail term. Strangulation offences in s 20A attract a maximum seven-year imprisonment term. According to the principle of retributive punishment, “the penalty structure should reflect a relationship between crime seriousness and punishment seriousness’’, and ‘’a punishment (penalty or sanction) should reflect the degree of blameworthiness’’. ^[23]

Hence, a penalty must be proportionally justified by the seriousness of a crime. s 20 is a full fault liability for which the prosecution must prove intention and knowledge. It’s unlikely that s 20A, attracting an equal or greater penalty, does not require a guilty mind. The prosecution in R v Fraser pointed out the absurdity that the lesser offence of assault requires proof of mens rea, but the more severe offence under s 20A is a strict liability offence.^[24]

The Subject Matter

To determine whether s 20A displaces the presumption, we must consider the subject matter along with the presumption against bail.

Hansard reveals the government’s concern that ‘’there should be a presumption against bail for such offences to ensure the continued safety of the victim.’’ ^[25]This indicates the severe threat to the wider community if the accused person re-offends.^[26]The prevalence of strangulation in an abusive relationship, its potential to lead to future homicide, and its significant bodily harmful consequences, whether immediate or ongoing, suggests that Parliament might have intended to make this offence an absolute liability.

On the other hand, as Lord Scarman stated, “the presumption is particularly strong where the offence is ‘truly criminal’ in character’’. ^[27]The nature of “CSS’’ is truly criminal based on its serious and dangerous nature. Additionally, the fact that Parliament intentionally increased the penalty for this conduct further indicates that this crime is considered ‘’truly criminal’’.

The Assistance to the Utility

The legislative purpose specified in Hansard includes increasing the penalty, which is usually intended as a deterrent. In another Hansard regarding the criminalization of coercive controlling and abusive behaviours in the domestic setting, the Attorney General pointed out that “it is the criminalisation of these acts of abuse which is such a significant step forward in the deterrence of this form of domestic violence’’. ^[28] Since choking or strangulation is also a form of coercive behavior, it’s reasonable to believe Parliament’s response to deter domestic violence is through criminalization. However, the general principle of criminal responsibility is that ‘’a person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present.’’ ^[29]

Therefore, it’s likely that Parliament intends to make this offence a full fault liability.

(II) Actual Elements of s 20A

Section 20A consists of the following elements:

The offender caused immediate and significant harm to another person in a relationship;
The offender acted voluntarily;
The offender intended to cause, or was reckless in causing, immediate and significant harm by stopping or significantly obstructing the victim’s normal breathing;
The offender acted unlawfully.

III CONCLUSION

Based on the above discussion, an amendment of s 20A necessary is unlikely necessary. Section 20A reveals Parliament’s struggle to balance the State’s power and personal will by making consent a bar to liability. The acknowledgement of consent shows respect for an individual’s rights or personal will in private life, which is necessary when an intimate relationship might go out of control. It’s open to the judge to decide the outcome on a case-by-case basis.

(END)

Footnote 1

[1] He Kaw Teh v The Queen (1985) 157 CLR 523, 566; Sherras v De Rutzen (27).

[2] He Kaw Teh v The Queen (1985) 157 CLR 523; Sherras v De Rutzen (33).

[3] Ibid, 530.

[4] R v Fraser [2020] SADC 127, para 9.

[5] Michelle Sanson, Statutory Interpretation (Oxford University Press, 2^nd ed, 2016) 141.

[6] Merriam Webster, ‘’Choke’’, https://www.merriam-webster.com/dictionary/choke.

[7] Merriam Webster, ‘’Strangle’’, https://www.merriam-webster.com/dictionary/strangle.

[8] He Kaw Teh v The Queen (1985) 157 CLR 523, 582.

[9] R v HBZ [2020] QCA 73; R v Fraser [2020] SADC 127, para 18.

[10] David Caruso et al, South Australian Criminal Law and Procedure (LexisNexis Butterworths, 2^nd ed, 2016) 20.

[11] Merriam Webster, ‘’Voluntary’’, https://www.merriam-webster.com/dictionary/voluntary.

[12]Police v Harrison (2017) 127 SASR 315, 13.

[13] South Australia, Hansard, House of Assembly, 24 October 2018, 3131 (The Honourable Vicki

Chapman MP Deputy Premier and Attorney-General) https://hansardsearch.parliament.sa.gov.au/daily/lh/2018-10-24/70.

[14] He Kaw Teh v The Queen (1985) 157 CLR 523, 568-569.

[15] He Kaw Teh v The Queen (1985) 157 CLR 523, 565.

[16] He Kaw Teh v The Queen (1985) 157 CLR 523; David Caruso et al, South Australian Criminal Law and Procedure (LexisNexis Butterworths, 2^nd ed, 2016) 66.

[17] He Kaw Teh v The Queen (1985) 157 CLR 523, ???; David Caruso et al, South Australian Criminal Law and Procedure (LexisNexis Butterworths, 2^nd ed, 2016) 67.

[18] Criminal Law Consolidation Act SA 1935, s 29.

[19] Ibid.

Footnote 2

[20] R v Fraser [2020] SADC 127, para 27.

[21] German case of Arwin Meiwes from 2007.

[22] R v Dransfield [2016] SASCFC 68, [21]; Criminal Trials Bench Book, chapter 8, ‘’Intentionally or recklessly causing serious harm’’.

[23] Dalton, de Lint & Palmer. Crime and Justice: A Guide to Criminology 6^th Edition, Thomson Reuters (Professional) Australia Pty Ltd, 2020, 396.

[24] R v Fraser [2020] SADC 127, para 9.

[25] South Australia, Hansard, House of Assembly, 24 October 2018, 3131 (The Honourable Vicki