[Legislation: Criminal Law Consolidation Act 1935 (South Australia)]
I INTRODUCTION
Criminal offence typically consists of two components: physical elements and fault elements. But s 20A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) regarding ‘’choking, suffocation or strangulation” (‘’CSS’’), particularly par. (1) of s 20A, seems to be completely silent on the fault elements, such as intention, recklessness, knowledge, or negligence. This might lead us to think that s 20A is an absolute liability offence. However, if we conduct a He Kaw Teh analysis in the recent South Australian case R v Fraser, we might discover 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 adopted in HKT case refers to the classic common law presumption as to criminal responsibility that mens rea 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 hard to affirm the Parliament’s actual intention regarding the ‘’missing piece’’, based on the three methods, we may take one position in R v. Fraser to examine. In R v. Fraser, the prosecution argues that the mental ingredient is implied in s 20A owing 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, as 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]
If we break down the meaning of ‘’CSS’’, we can see these words (or conducts) illustrate a complete journey of a crime. The start point is that the offender compresses (or applies force around) the throat, and the endpoint is the victim cannot breathe normally, stops breathing or is unconscious.
Intention Implied – Brennan J summarized that voluntariness and intention are implied as an 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’’, most likely he ‘’voluntarily applied force’’ so long as he is a rational adult ‘’not subjectto force or duress and so has the opportunity to exercise true choice’’. [10] So the implied ‘’voluntary choice’’ precludes the choice by accident which is the opposite of the choice by design. That 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 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] I doubt what it means refers to the ‘’specific intent to cause harm” identified by Brennan J. whose ideal is to classify the 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 conducts) of ‘’CSS’’, it is absurd to divide the intent in this way as the harmful result is the indispensable part of this physical element when we give effect to the interpretation. 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 itself attached to an act doesn’t necessarily render doing the 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. addressed the first presumption is to determine at the time when the offender commits the conduct whether the offender “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 the classic view to criminal culpability is “knowledge is the state of mind.’’ [17]
In s 20A, the legislative intention puts an emphasis on the circumstance that makes the act an offence. The words ‘’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’’ committing the offence?
s 20A doesn’t say anything about mens rea, but it sits between divs 7 and divs 7A which have some shared 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 knowingly applies force to the victim without consent because ‘’objection to the contact’’ means ‘’without the consent’’. s 29 under division 7A also requires the subjective knowledge of the offender when intentionally or recklessly doing an act to ‘’endangering life or creating risk of serious harm’’, [18] although the knowledge in s 29 is in relation to the act itself, not to the circumstance. [19]
The fact that s 20A is to be created out of these offences indicates that Parliament is likely to inherit the ‘’spirit’’ of the shared elements or tests in both divs 7 and divs 7A.
In R v Fraser, the court found the 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]
In fact, 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. Because these physical elements have an inherently dangerous nature which might lead to death quickly, even if a person may consent to harm or serious harm, he will rarely consent to death (or nearly death). [21]
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 doesn’t have consent to do so. And 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.
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 doesn’t require a guilty mind. The prosecution in R v Fraser pointed out such ridiculousness 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 the presumption is displaced by s 20A, the subject matter is considered 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 fact that strangulation in an abusive relationship is so common it might lead up to future homicide, and its bodily harmful consequences are so significant, either immediate or ongoing, suggests that the Parliament might have intended to make this offence an absolute liability.
On the other hand, as per the propositions delivered by Lord Scarman, ‘’the presumption is particularly strong where the offence is ‘truly criminal’ in character’’. [27] The ‘’CSS’’ is truly criminal based on its serious and dangerous nature, besides, the fact that Parliament intentionally increases the penalty for this conduct, also means such crime is considered ‘’truly criminal’’.
The assistance to the utility
The legislative purpose specified in Hansard includes increasing the penalty. Usually, this can be seen as a deterrence. In another Hansard regarding criminalising coercive controlling and abusive behaviours in the domestic setting, AG 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] As choking or strangulation is also a form of coercive behavior, it’s reasonable to believe Parliament’s response to deter domestic violence is through criminalisation. But the general principle of criminal responsibility is ‘’A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present.’’ [29]
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, or was reckless, to cause 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, it’s unlikely an amendment of s 20A necessary. Section 20A reveals Parliament struggles to find a balance between 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, this is necessary when the intimate relationship might go out of control. It’s open to the judge to decide the outcome case by case.
(END)
[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, 2nd 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, 2nd 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, 2nd 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, 2nd ed, 2016) 67.
[18] Criminal Law Consolidation Act SA 1935, s 29.
[19] Ibid.
[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 6th 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
Chapman MP Deputy Premier and Attorney-General) https://hansardsearch.parliament.sa.gov.au/daily/lh/2018-10-24/70.
[26] David Caruso et al, South Australian Criminal Law and Procedure (LexisNexis Butterworths, 2nd ed, 2016) 537.
[27] He Kaw Teh v The Queen (1985) 157 CLR 523, 566-567; Gammon Ltd. v Attorney – General (Hong Kong) (37).
[28] South Australia, Hansard, House of Assembly, 02 December 2020 (The Honourable Vicki
Chapman MP Deputy Premier and Attorney-General) https://hansardsearch.parliament.sa.gov.au/daily/lh/2020-12-02/2 .
[29] He Kaw Teh v The Queen (1985) 157 CLR 523, 565.