CHEY JOSHUA BURNETT v THE KING [2025] SASCA 126

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE ALEXANDRIDES) DCCRM-22-893 Appellant: CHEY JOSHUA BURNETT Counsel: MR M MEAD - Solicitor: ANDREW HILL & CO Respondent: THE KING Counsel: MR M HINTON WITH MR R BAKUTIS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/10/2024 File No/s: SCCRM-24-004269 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BURNETT v THE KING [2025] SASCA 126 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice David) 6 November 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION This is an appeal against conviction. Following a trial by jury, the appellant was convicted of multiple offences of violence against the complainant, his former domestic partner, including the offence of unlawful choking, suffocation or strangulation in a domestic setting, contrary to s 20A of the CLCA (Count 10). The appellant appeals his conviction on Count 10 on the ground that the trial Judge erred in his directions to the jury regarding the elements of s 20A offence of unlawful choking, suffocation or strangulation in a domestic setting. Contrary to the trial Judge’s directions, the appellant contends that: i. the prosecution must prove that an act of choking, suffocating or strangling is constituted by the significant hinderance or restriction of the victim’s breathing; ii. the requisite fault element for s 20A requires proof that the appellant had an actual intent to hinder or restrict the breathing of the complainant, and recklessness will not suffice; and -- 1 of 47 -- iii. if recklessness does suffice, and is invoked, the prosecution is required to prove that the appellant foresaw the significant hinderance or restriction of the victim’s breathing as the probable (as opposed to possible) consequence of their conduct and proceeded to act, nonetheless. Held, per Lovell and David JJA, granting permission to appeal but dismissing the appeal: 1. As to the physical elements of s 20A, there is no textual or contextual basis to construe the words ‘choke’, ‘strangle’ or ‘suffocate’ as requiring a significant restriction of the victim’s breathing. Any restriction or hinderance of breath is sufficient. 2. As to the requisite fault element for s 20A, the prosecution must establish that the appellant deliberately engaged in conduct intending to restrict or hinder the complainant’s breath or was reckless as to whether his or her conduct would restrict or hinder the complainant’s breath. Where recklessness is invoked as the fault element, the prosecution is required to prove that the appellant engaged in conduct foreseeing that it was possible (as opposed to probable) that his or her act would result in hindering or restricting the complainant’s breath but continued, nonetheless. 3. There was no error by the trial Judge in his directions to the jury as to the elements of s 20A offence. Discussion as to the elements of the offence of choking, suffocating or strangling in a domestic setting contrary to s 20A of the CLCA. Held, per Kourakis CJ: 1. Section 20A of the CLCA defines the proscribed conduct by words which encompass both the conduct and the result. These verbs denote both actions (the conduct which is capable of restricting breath or interfering with the respiratory system) and a result (the restriction of breath). It is not permissible to judicially deconstruct the words selected by the legislature into their component parts, of both act and result, for the purpose of differentially applying a different fault element to each part. To do so necessarily requires a court to choose between attaching no fault element at all, or attaching foresight of probability, or alternatively, possibility, of the result as the requisite fault element. The making of choices of that kind is the exercise of legislative, not judicial, power. 2. A fault element applies to the result of choking, suffocating or strangling and is satisfied by advertence to the likelihood that the intended conduct would restrict the breath of the victim. The requisite intention for the purpose of s 20A of the CLCA may be proved by foresight of the probability of the restriction of breath, even if that result is not desired. 3. The proper construction of s 20A of the CLCA is: a. The presumption that conduct proscribed by statute is not an offence unless it is accompanied by an intention to engage in that conduct, often described as a basic or general intention, applies to the conduct which results in the restriction of breath. Recklessly making contact which does produce the result is not enough to satisfy the presumption; and b. Foresight of probability (being the equivalent of intention) applies to the result element, namely a restriction of breath. 4. The direction of the trial Judge on the element of s 20A of the CLCA was wrong in law. Acts Interpretation Act 1954 (Qld) s 14A; Crimes Act 1900 (ACT) s 28(2)(a); Crimes Act 1900 (NSW) ss 5, 35, 36, 45(1); Crimes Act 1958 (Vic) s 17; Criminal Coder Act 1899 (Qld) s 315A; Criminal Law Consolidation Act 1935 (SA) ss 19(2), 20(3), 20(4), 20A, 20AA, 21, 23, 24, 29(3), 29A, 32AA, 170(1), 170A(1); Criminal Law Consolidation (Section 20A) Amendment Bill (2024) (SA); Statutes Amendment (Domestic Violence) Bill 2018 (SA), referred to. -- 2 of 47 -- He Kaw Teh v The Queen (1985) 157 CLR 523; Vallance v The Queen (1961) 108 CLR 56, applied. Aubrey v The Queen (2017) 260 CLR 305; Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; Ducaj v The Queen (2019) 135 SASR 127; Gillan v Police (SA) (2004) 149 A Crim R 354; He Kaw Teh v The Queen (1985) 157 CLR 523; Kural v The Queen (1987) 162 CLR 502; Laurie v Nixon (1991) 55 SASR 46; Leonard v Morris (1975) 10 SASR 528; Lim Chin Aik v The Queen (1963) AC 160; MDP v The King [2025] HCA 24; Police v Pfeifer (1997) 68 SASR 285; Re Director of Public Prosecutions (Vic) Reference (No 1 of 2019) (2020) 284 A Crim R 19; R v A2 (2019) 269 CLR 507; R v Brown (1975) 10 SASR 139; R v Campbell [1997] 2 VR 585; R v Coleman (1990) 19 NSWLR 467; R v Crabbe (1985) 156 CLR 464; R v Cunningham [1957] 2 QB 396; R v Green (No 3) [2019] ACTSC 96; R v O’Connor (1980) 146 CLR 64; R v HBZ [2020] QCA 73; R v Hoskin (1974) 9 SASR 531; R v Nuri [1990] VR 641; R v Reynhoudt (1962) 107 CLR 381; Selig v Hayes (1989) 52 SASR 169; Sherras v De Rutzen (1895) 1 Q.B. 918; Sweet v Parsley (1970) AC 132; The Queen v Pembliton [1874] LR 2 CCR 119; Vallance v The Queen (1961) 108 CLR 56, considered. -- 3 of 47 -- -- 4 of 47 -- BURNETT v THE KING [2025] SASCA 126 Court of Appeal – Criminal: Kourakis CJ, Lovell and David JJA KOURAKIS CJ: Introduction 1 The issue to be resolved on this appeal is the identification of the fault element of the statutory offence of choking, suffocating or strangling enacted by s 20A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). I gratefully adopt the facts as outlined by David JA and Lovell JJA in paragraphs [90] – [105] below. 2 It is a common law presumption that conduct proscribed by statute is not an offence unless it is accompanied by an intention to engage in that conduct, often described as a basic or general intention.1 Hereafter I will refer to that presumption as the ‘intent presumption’. 3 Where there is a statutory omission to specify the fault element of an offence, the common law applies the intent presumption in the absence of a statutory indication to the contrary. A court is not at liberty to fill the ellipses by judicially legislating the fault element it finds preferable. 4 In Police v Pfeifer,2 Doyle CJ explained the application of the intent presumption to legislation creating criminal offences:3 … The presumption which the court applied reflects a long standing common law principle. Parliament is presumed to legislate in the context of those principles, because they are part of the fabric of our criminal law. Legislation creating criminal offences takes its place within the fabric of our criminal law. Such legislation can be fully and properly understood only if one assumes that Parliament intends legislation to operate within and affected by relevant common law principles. 5 The application of the intent presumption is sometimes problematic because the elements of an offence can extend to the extant circumstances in which a person engages in the conduct. The decision of the High Court in He Kaw Teh v The Queen4 established that if conduct is proscribed only when it is accompanied by specified attendant circumstances, the presumption that that conduct must be intentional extends, subject to a statutory indication to the contrary, to knowledge or foresight of the probable existence of those attendant circumstances. 6 Legislation may also proscribe an offence according to conduct which achieves a specific result. When the legislature so provides, it may manifest an 1 R v O’Connor (1980) 146 CLR 64, 77-78, 81-84 (Barwick CJ), 111 (Mason J). 2 Police v Pfeifer (1997) 68 SASR 285. 3 Police v Pfeifer (1997) 68 SASR 285, 291. 4 (1985) 157 CLR 523 (‘He Kaw Teh’). -- 5 of 47 -- [2025] SASCA 126 Kourakis CJ 2 intention that no fault element attaches to the result, in effect providing that it is sufficient if the result is a matter of happenstance (e.g. assault occasioning bodily harm).5 7 Fortunately, statutes often expressly specify the result fault element—for example, threatening to cause harm to a person and being recklessly indifferent as to whether such a fear is aroused in another. Statutes may also provide that the result must be intended—for example, wounding with intent to cause serious harm. A fault element of that kind is commonly referred to as a specific intent. Alternatively, a provision may provide that the conduct must be malicious, a term which has on occasion been statutorily defined to mean wantonness or recklessness, in the sense of engaging in conduct irrespective of the risk that the prescribed result ensues, not caring whether it does or not, and acting without any lawful excuse. Whether or not the text manifests an intention to exclude, or require, a result fault element is a question of statutory construction. 8 By and large, the current provisions of the CLCA which proscribe conduct that causes bodily harm prescribe either specific intent or recklessness as the fault element attached to the causation of harm. Recklessness is most commonly defined to mean acting with foresight of the possibility of a specific result. It is difficult to imagine how a result offence, which is expressed in terms of distinct conduct and result elements, might be structured other than by either expressly providing that there is no fault element, or by expressly prescribing the fault element which attaches to the result. It is not surprising therefore that there is no judicial authority on the default mental state which is presumed to attach to a result when no express provision is made. 9 However, offences which proscribe conduct by reference to its result do not always differentiate the conduct from the result. 10 An offence provision may proscribe conduct with a single word that encompasses both the bodily movements of the actor and the result effected by that conduct. There is authority that in respect of offences so structured, the intent presumption applies to both the conduct which produces the result and to the achievement of the result. Examples of offences which are so framed include 5 Section 20(4) of the CLCA, which replaces section 40 (assault occasioning actual bodily harm) now provides: “A person who commits an assault that causes harm to another is guilty of an offence. Maximum penalty: (a) for a basic offence—imprisonment for 3 years; (b) for an aggravated offence (except one to which paragraph (c) or (d) applies)—imprisonment for 4 years; (c) for an offence aggravated by the use of, or a threat to use, an offensive weapon— imprisonment for 5 years; (d) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 7 years.” Note: The conjunction that serves the same purpose as the word ‘occasioning’, and consistently with the legislative history of the provision, no fault element attaches to the result. -- 6 of 47 -- [2025] SASCA 126 Kourakis CJ 3 unlawful wounding, resisting or hindering a person and, as in this case, choking, suffocating or strangling. 11 In respect of the offence of unlawful wounding, the decision of the High Court in Vallance v The Queen6 supports the proposition that the intent presumption (in that case, codified in the Tasmanian Criminal Code) applies to both the conduct of the actor and the result. In Leonard v Morris,7 this Court applied the common law intent presumption to construe a provision which was silent on the fault elements, the statutory offence of hindering a police officer, to require both a basic intent to perform the acts which have that effect, including an intention to bring about that effect, or a foresight of the probability of the result. 12 It is accepted by the Director of Public Prosecutions (‘the Director’) that though s 20A of the CLCA is silent as to the fault element which must accompany the act of choking, suffocating or strangling, the conduct which has the effect of restricting breath must be proven to be intentional.8 This concession is rightly made; it is required by the application of the intent presumption. However, it means that an offence against s 20A cannot be committed by recklessly engaging in a struggle in the course of which there is unintentional contact which restricts a person’s breathing, even though the possibility of that occurring was foreseeable. 13 The controversy on this appeal is: (a) whether or not any fault element applies to the result of choking, suffocating or strangling (the restriction of breath); and (b) if a fault element applies, whether it is satisfied by advertence to the likelihood, or alternatively, the possibility, that the intended conduct would restrict the breath of the victim. 14 I would answer those questions as follows: (a) Yes. (b) Intention for the purpose of s 20A of the CLCA may be proved by foresight of the probability of the restriction of breath, even if that result is not desired. 15 I observe that since judgment was reserved, Parliament enacted that Criminal Law Consolidation (Section 20A) Amendment Bill 2024 (SA) providing for, inter alia, a definition of the words ‘choking’, ‘strangling’ and ‘suffocating’. The clarification prescribed does not provide guidance or direction on the question currently before the Court. 6 (1961) 108 CLR 56 (‘Vallance’). 7 (1975) 10 SASR 528 (‘Leonard’). 8 Transcript of Proceedings, Burnett v The King (Court of Appeal, SCCRM-24-004269, Kourakis CJ, Lovell and David JJA), 21 October 2024) 15.10-28. -- 7 of 47 -- [2025] SASCA 126 Kourakis CJ 4 16 Section 20A of the CLCA defines the proscribed conduct by words which encompass both the conduct and the result—choking, suffocating or strangling. These verbs denote both actions (the conduct which is capable of restricting breath or interfering with the respiratory system) and a result (the restriction of breath). It is not permissible to judicially deconstruct the words selected by the legislature into their component parts, of both act and result, for the purpose of differentially applying a different fault element to each part. To do so necessarily requires a court to adopt one of the alternative offence structures described in paragraph [7] above and to choose between attaching no fault element at all, as the Director contends, or attaching foresight of probability, or alternatively, possibility, of the result as the requisite fault element. The making of choices of that kind is the exercise of legislative, not judicial, power. The intent presumption can be applied but once to the indivisible conduct described by the words chosen by the legislature: choking, suffocating or strangling. The proper construction of s 20A of the CLCA is: 1. The intent presumption applies to the conduct which results in the restriction of breath. Recklessly making contact which does produce the result is not enough to satisfy the presumption; and 2. Foresight of probability (being the equivalent of intention) applies to the result element, namely a restriction of breath. 17 I explicate my reasons further below. Putting Aside Distractions 18 It is best first to put to one side some issues which do not arise in this case. Issues not arising 19 This case does not concern identification of the elements of a common law offence. The identification of the elements of common law offences requires the application of precedent; it is not a question of statutory construction, and no occasion arises to resort to a presumption. The discussion in R v Brown,9 which considered the mental element of the common law offence of rape, is therefore of no assistance in this case. For the same reason, the fault element of the common law offence of murder is of no assistance. 20 Malice aforethought, which is the fault element peculiar to murder, means an intention, or foresight of the probability, of causing death or grievous bodily harm. Accordingly, the reasoning in R v Crabbe10 has no application here. 9 (1975) 10 SASR 139. 10 (1985) 156 CLR 464 (‘Crabbe’). -- 8 of 47 -- [2025] SASCA 126 Kourakis CJ 5 Statutory malice 21 Malice aforethought has always been distinguished from the common law concept of simple malice, which was often pleaded in the indictments for common law offences simply to mean ‘wickedness’. 22 The term has also been used as an element of statutory offences. It is sometimes expressly defined by those provisions. But in the absence of such definition the term is typically judicially construed to include foresight of a possibility of a risk, but not of probability. Resort to the intent presumption is therefore unnecessary. However, because malice is not an express element of s 20A of the CLCA, those cases shed no light on the questions before the Court. 23 Nonetheless, because of the Director’s heavy, and in my view misplaced, reliance on the decision of the High Court in Aubrey v The Queen,11 it is necessary to consider those authorities in some detail. 24 I mentioned earlier that when used in indictments for common law felonies, malice meant ‘wickedness’ in the sense of a desire to cause harm. However, almost seven decades ago in England in the matter of R v Cunningham,12 it was held that the word ‘maliciously’, when expressly prescribed as the fault element of a statutory offence, meant a person’s foresight of the consequences of his or her conduct. 25 In Cunningham, the Court of Appeal considered s 23 of the Offences Against the Person Act 1861 (UK),13 which relevantly provided:14 Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony… 26 The Court of Appeal cited with approval as an ‘accurate statement of the law’ the principle propounded by Professor C.S. Kenny in the first edition of Outlines of Criminal Law:15 In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured. 11 (2017) 260 CLR 305 (‘Aubrey’). 12 [1957] 2 QB 396 (‘Cunningham’). 13 24 & 25 Vict, c 100 (‘Offences Against the Person Act’). 14 Cunningham 399 (Byrne J). 15 Cunningham 399-400 (Byrne J). -- 9 of 47 -- [2025] SASCA 126 Kourakis CJ 6 We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge CJ and Blackburn J in Pembliton’s case. In our opinion the word ‘maliciously’ in a statutory crime postulates foresight of consequence. 27 In The Queen v Pembliton,16 the defendant threw a stone at a group of men, with whom he had been fighting in a street, intending to hit one of them, but he missed and broke a window in a building behind them. He was charged with unlawfully and maliciously injuring the property by causing damage to the window. In a special verdict, the jury found that he did not intend to break the window but made no finding on whether he foresaw the likelihood that he would break the window.17 The Court of Crown Cases Reserved held that the fault element (i.e. a malicious intention) was not established by those limited findings. Lord Coleridge CJ delivered the following opinion:18 In both these sections it seems to me that what is intended by the statute is a wilful doing of an intentional act. Without saying that if the case had been left to them in a different way the conviction could not have been supported, if, on these facts, the jury had come to a conclusion that the prisoner was reckless of the consequence of his act, and might reasonably have expected that it would result in breaking the window, it is sufficient to say that the jury have expressly found the contrary. I do not say anything to throw doubt on the rule under the common law in cases of murder which has been referred to, but the principles laid down in such case have no application to the statutable offence we have to consider. 28 Blackburn J agreed:19 We have not now to consider what would be malice aforethought to bring a given case within the common law definition of murder; here the statute says that the act must be unlawful and malicious, and malice may be defined to be ‘where any person wilfully does an act injurious to another without lawful excuse.” Can this man be considered, on the case submitted to us, as having wilfully broken a pane of glass? The jury might perhaps have found on this evidence that the act was malicious, because they might have found that the prisoner knew that the natural consequence of his act would be to break the glass, and although that was not his wish, yet that he was reckless whether he did it or not; but the jury have not so found, and I think it is impossible to say in this case that the prisoner has maliciously done an act which he did not intend to do. 29 Contrary to the view expressed in Cunningham above, I observe that it might be doubted that the decision in Pembliton supports a construction of the word malice that makes possibility the requisite standard of foresight, rather than probability (i.e. “natural consequence”),20 that the resultant harm might be caused. 30 In R v Hoskin,21 The Full Court of this State considered the meaning of the word ‘maliciously’. Section 23 of the CLCA, as it then was, read: 16 [1874] LR 2 CCR 119 (‘Pembliton’). 17 Pembliton, 120. 18 Pembliton, 122. 19 Pembliton, 122. 20 Pembliton, 122 (Blackburn J). 21 (1974) 9 SASR 531 (‘Hoskin’). -- 10 of 47 -- [2025] SASCA 126 Kourakis CJ 7 Any person who unlawfully and maliciously wounds or inflicts any grievous bodily harm on any other person, either with or without a weapon or instrument, shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding five years… 31 The word ‘maliciously’ was not statutorily defined. 32 The Court in Hoskin held that it was an element of the offence that the perpetrator of the conduct foresaw that it would probably result in a wound. 33 The different constructions of the word ‘maliciously’ in Hoskin and Cunningham may be reconciled around an important difference in the framing of the respective provisions. The text of s 23 of the Offences Against the Person Act proscribed the act of administering a noxious substance and, as a separate element following the conjunctional expression ‘so as thereby to’, endanger the life of, or inflict grievous bodily harm on a person. The conjunctional expression suggests that the result must be something more than a mere happenstance of the conduct. 34 On the other hand, s 23 of the CLCA proscribed ‘wounding’ as the act which, in a single word, encompassed both the act of the perpetrator and the result of the conduct. In other words, the legislature’s semantic choice in Cunningham was to define the proscribed conduct by reference to the result, irrespective of the particular acts by which that result might have been achieved, whereas in Hoskin, the construction of the word ‘maliciously’ is a product of the coherent application of the concept of malice to both aspects of the word ‘wound’. 35 In modern times, the word ‘reckless’ has generally replaced ‘malice’ as the expressly prescribed fault element of statutory offences. 36 In R v Shah,22 it was explained that:23 The background to statutory references to recklessness is the common law. The mental element of nearly all common law offences was either intention or recklessness. The subject matter of the intention or recklessness depended on the specific offence. Recklessness always included awareness of a risk of the relevant matter, whether it be causation of a consequence such as grievous bodily harm, a fact such as lack of consent by the complainant or some other matter. However the level of risk of which the defendant had to be aware differed according to the offence. For example, at one extreme in the case of rape it was sufficient that the defendant was aware of the possibility that the complainant was not consenting. At the other extreme, in the case of murder it was necessary that the defendant was aware of the probability (ie more likely than not) that the defendant’s conduct would cause grievous bodily harm.24 (citations included) 37 For some time, there was conflicting authority as to whether recklessness required awareness of ‘the probability or likelihood’ to satisfy the result element 22 R v Shah (2018) 131 SASR 491. 23 R v Shah (2018) 131 SASR 491, 502-503 [34] (Kourakis CJ, Blue and Doyle JJ). 24 R v Crabbe (1985) 156 CLR 464, 468-470; Royall v The Queen (1991) 172 CLR 378, 394-395, 400, 412, 416-417, 424. -- 11 of 47 -- [2025] SASCA 126 Kourakis CJ 8 of a statutory offence, or whether awareness of the ‘possibility’ of the result was sufficient. The decision of the High Court in Aubrey concerned the proper construction of s 5 of the Crimes Act 1900 (NSW), which defined malice to include acting recklessly or wantonly, and indifference as to the result. In Aubrey, the majority in their joint judgment (comprising Kiefel CJ, Keane, Nettle and Edelman JJ) held that foresight of possibility is generally the appropriate standard of recklessness to establish malice for statutory offences other than murder. 25 The Court was, of course, focused on the Crimes Act 1900 (NSW), but there is good reason to construe the word recklessly consistently when used in the criminal statutes of Australian jurisdictions. Nonetheless, the High Court recognised that, “[t]he requirements in States other than New South Wales may vary according to the terms of each State’s legislation.”26 38 In Re Director of Public Prosecutions (Vic) Reference (No 1 of 2019),27 the Victorian Court of Appeal affirmed the construction of the word ‘recklessly’ in s 17 of the Crimes Act 1958 (Vic), as articulated by the decision of R v Campbell,28 means acting with foresight of the probability that the conduct engaged in would cause serious injury.29 The reason for this construction was partly attributable to the legislative history of the Crimes Act 1958 (Vic), which included legislative amendments that manifested an intention that recklessness in s 17 of that Act meant acting with foresight of the probability of harm.30 By special leave, a majority of the High Court, in Director of Public Prosecutions Reference No 1 of 2019,31 found that the Victorian Court of Appeal in Campbell had correctly construed the meaning of “recklessly” in the offence as requiring the foresight of probability, not possibility.32 As Edelman J described, the “intention of the Victorian Parliament in enacting s 17 must have been to leave the development of the meaning of recklessness in that section to the courts from 1986 when the section commenced.”33 Subsequently, amendments were made to the Crimes Act 1958 (Vic) which appear to be premised on that construction.34 The Intent Presumption 39 The common law presumption of a mental element in statutory offences was comprehensively considered in He Kaw Teh. Those principles of statutory construction have not been doubted and remain sound to this day. It is those principles which are determinative and to which I now turn. 25 Aubrey, 328-329 [46]-[47]. 26 Aubrey, 329 [47]. 27 (2020) 284 A Crim R 19. 28 (1997) 2 VR 585 (‘Campbell’). 29 Campbell, 592 (Hayne JA and Crockett AJA). 30 (2020) 284 A Crim R 19, 27 [29], 32 [51] (Maxwell P, McLeish and Emerton JJA); See R v Nuri [1990] VR 641, 643. 31 (2021) 274 CLR 177 (‘DPP Reference No 1’). 32 DPP Reference No 1, 201-203 [35] (Gageler, Gordon and Steward JJ, Edelman J agreeing) 33 DPP Reference No 1, 210 [79]. 34 DPP Reference No 1, 200-202 [53]-[59] (Gageler, Gordon and Steward JJ); 214-216 [89]-[95] (Edelman J). -- 12 of 47 -- [2025] SASCA 126 Kourakis CJ 9 40 In He Kaw Teh, the High Court considered the fault element attaching to s 233B(1) of the Customs Act 1901 (Cth), which relevantly provided that any person who ‘imports … into Australia any prohibited imports … or without reasonable excuse has in his possession or attempts to obtain possession of any prohibited imports… shall be guilty of an offence’. The majority (comprising of Gibbs CJ, Mason, Brennan and Dawson JJ) held that the presumption that mens rea is required before a person can be held to be guilty of a grave criminal offence is not displaced in relation to that provision. Accordingly, mens rea was an element of the offence which the prosecution bore the onus of proving that the accused knew of the existence of the prohibited import which was in his exclusive physical control. 41 The majority further held that in respect of statutes that proscribe possession offences, in the absence of an indication to the contrary, knowledge of the possession is an element of the offence, because the word ‘possession’ in itself necessarily imports a mental element as an ingredient of the offence. 42 The leading judgment of the Court was delivered by Brennan J. 43 Brennan J explained that a criminal offence ordinarily comprises of three elements – the ‘prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission,’35 and that ‘these elements – conduct, circumstances and results – are what Dixon CJ in Vallance labelled “the external elements necessary to form the crime”.’36 44 His Honour recognised that the mental element implied by the intent presumption applies if the statute creates and defines an offence only by reference to its external elements.37 Brennan J continued:38 It is one thing to say that mens rea is an element of an offence; it is another thing to say precisely what is the state of mind that is required…Indeed, it may connote different states of mind in respect of the several external elements of the same crime. If A strikes B and causes him bodily harm, A’s moral blameworthiness may depend on whether A moved accidentally, or whether he was unaware that B or anybody else was there, or whether he did not mean to cause bodily harm and could not and did not foresee that he would cause bodily harm. The particular mental states that apply to the several external elements of an offence must be distinguished, not only as a matter of legal analysis, but in order to maintain tolerable harmony between the criminal law and human experience. Moral excuses find counterparts in the categories of mental states that are indifferently described as mens rea and that apply to the several external elements of an offence. Thus, voluntariness and intent are the mental states ordinarily applicable to an act involved in an offence, knowledge or the absence of an honest and reasonable but mistaken belief is the mental state ordinarily applicable to the circumstances in which a relevant act is done or 35 He Kaw Teh, 565. 36 He Kaw Teh, 565. 37 He Kaw Teh, 565-566; See also Sherras v De Rutzen (1895) 1 Q.B. 918, 921 (R.S Wright J). 38 He Kaw Teh, 568. -- 13 of 47 -- [2025] SASCA 126 Kourakis CJ 10 omission is made and, where a mental state is applicable to results, it may be either foresight of the possibility of their occurrence (if recklessness is an element) or knowledge of the probability (or likelihood) of their occurrence or an intention to cause them (if a specific intent is an element)… 45 In that passage, Brennan J was surveying the range of fault elements found in statutory and common law offences. His Honour was not providing a menu of fault elements from which a quasi-legislative selection could be made in applying the intent presumption. 46 Brennan J explained that the fault element can extend to the attendant circumstances in which a person engages in action:39 If an ‘act’ is described so as to include the circumstances in which the muscles are contracted, a different state of mind is applicable, ordinarily called ‘intent’. Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so — to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B. Intent, in another form, connotes knowledge. This appears more clearly if we divide an action, somewhat artificially, into a mere movement and the circumstances that are an integral part of the action and which give it its character. When A strikes B, his action can be divided into A's movement of his fist and B's presence in the path of A's movement. Although A's movement may be voluntary, he is not said to strike B intentionally unless he knows that B (or someone else) is in the path of his moving fist. If mens rea were imported into an offence defined as striking another — a definition that does not include a result — two states of mind would normally be involved: voluntariness of movement and an intention to strike another — and intention is, for all practical purposes, established by knowledge that another person is, or is likely to be, in the path of the movement. If the definition is extended to include a result — causing bodily harm — the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm. 47 In the example illustrated by his Honour, the close presence of the victim, within the path of a moving fist, is more aptly conceptualised as an attendant circumstance. However, with respect to the analysis of Brennan J, one can also conceptualise the act of striking as the intentional (or voluntary) movement of a person’s arm which has the result of impacting the body of another person. 48 So analysed, to ensure consistent outcomes, just as intentional conduct includes awareness of an attendant circumstance, so too must intentional conduct extend to awareness of the likelihood of the result. 49 Brennan J explained the relationship between awareness of attendant circumstances and awareness of foresight of result, on the one hand, and intention on the other, in the following way:40 39 He Kaw Teh, 569. 40 He Kaw Teh, 569-570. -- 14 of 47 -- [2025] SASCA 126 Kourakis CJ 11 … [V]oluntariness and general intent are distinct mental states. General intent and specific intent are also distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. Of course, proof of an actual desire or wish to do an act of the prescribed character is proof of a general intent (cf. Reg. v. Reynhoudt41; Morgan42), but for practical purposes knowledge of the circumstances which give the act its character when an act is voluntarily done is the ordinary form of an intent to do it. A specific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely to) occur: Reg. v. Crabbe.43 Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that the circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character. That is not to say that some state of mind less than knowledge is sufficient to establish intent. Actual knowledge is required (Giorgianni v. The Queen)44 but what is generally required to be known is at least the likelihood that the prescribed result of an act will occur (specific intent) or at least the likelihood that the existing circumstances are such as to give an act the character of the act involved in the commission of the offence in question (general intent). (underlining added and citations included) 50 Brennan J then adumbrated the approach to the proper construction of criminal provisions for the purpose of identifying the fault element:45 Voluntariness, general intent and specific intent are three categories of mens rea that may be (but are not always) mental elements applicable to the external elements of an offence. Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied. When a specific intent is expressed to be an element, it is ordinarily expressed to apply only to results. The definition of circumstances attendant upon but not an integral part of the act involved in the offence may (but does not always) imply another mental element: knowledge or the absence of an honest and reasonable but mistaken belief as to the existence of those circumstances. The distinction between the act and the circumstances which attend its occurrence is frequently of no moment, because for all practical purposes the same mental element – knowledge – is the requisite mental element ordinarily applicable both to the act and the circumstances. But if there be a legislative intention to apply a mental element to the circumstances different from the mental element applicable to the act involved in the offence, it is necessary to decide what circumstances are defined to be an integral part of the act (to which intent and therefore knowledge will ordinarily apply) and what circumstances are defined to be merely attendant (to which no mental 41 (1962) 10 CLR 381, 398-399. 42 [1976] A.C 210. 43 (1985) 156 CLR 464. 44 (1985) 156 CLR 473, 504-507. 45 He Kaw Teh, 570-571. -- 15 of 47 -- [2025] SASCA 126 Kourakis CJ 12 element may be intended to apply or to which a mental element less than knowledge may be intended to apply). One of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence is the identification of the prohibited act on the one hand and the circumstances attendant on the doing of that act on the other. 51 Brennan J stated the rules governing the application of the intention presumption as follows:46 1. There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind. 2. There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either — (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent. 3. The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind. 4. The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides. 52 The statutory purpose which may alter the default position stated in the third rule must appear from the text and context of the statutory provision. The latter includes the nature of the conduct the provision regulates. Statutory Abrogation of the Intent Presumption 53 The intent presumption is a common law rule of statutory construction which must give way to any contrary legislative intention, whether expressed or necessarily implied; such an intention may be manifest in the state of mind required for the element of intent in a particular offence, more than other external elements such as the nature, subject matter, or attendant circumstances of the offending. Regulatory offences are calculated to achieve their deterrent effect by excluding any fault element. The legislature is more likely to have excluded the intent presumption where the statute deals with matters of economic or social regulation,47 or when the provision enacts a status offence. 54 It is in this context that the following passage from the judgment of Nettle J in Clubb v Edwards48 should be understood:49 46 He Kaw Teh, 582. 47 He Kaw Teh, 595. 48 (2019) 267 CLR 171. 49 (2019) 267 CLR 171, 255 [246]. -- 16 of 47 -- [2025] SASCA 126 Kourakis CJ 13 By contrast to the requirement for proof of a general intent to commit the act charged, there is no presumption in relation to regulatory statutory offences that intent to cause specified consequences is an element of the offence charged; and, in the case of a contravention of s 185D comprised of prohibited behaviour of the kind described in para (b) of the definition, there is no reason to discern a statutory intention that an accused must intend that a charged communication be reasonably likely to cause distress or anxiety. To the contrary, the objectivity of the expression ‘reasonably likely to cause’ and the difficulty which Parliament noticed the Crown would face in proving a specific intent to communicate in the stipulated manner bespeak a conclusion that Parliament intended it to be enough for the Crown to establish that the conduct would be reasonably likely to cause distress or anxiety to a person accessing, attempting to access or leaving the premises whether or not the accused intended it to have that effect. Once again, however, it would be open to an accused to raise the possibility that he or she had an honest and reasonable belief that the communication would not be reasonably likely to cause distress or anxiety; in which event the Crown would be left with the persuasive if not evidential burden of excluding that possibility beyond reasonable doubt. Identifying the fault element of conduct defined by its result 55 In Leonard v Morris,50 this Court considered the fault element of the offence of hindering a police officer in the execution of his duty. This Court, applying the decision of the High Court in R v Reynhoudt,51 accepted that the knowledge that the person hindered was in fact a police officer in the execution of his duty was not an element of the offence, but that a genuine and reasonable belief that the person was not might found a defence. 56 It was agreed in Leonard that ‘hindering’ required a conscious and voluntary act. 52 The issue was the fault element which applied to the conduct described as ‘hindering’. Chief Justice Bray held that the fault element was an intention (understood as a desire or purpose) to substantially impede a person who happens, whether known or unknown to him, to be a police officer, or recklessness (defined as an awareness that what he is doing is likely to impede that person and deciding nonetheless to do so).53 His Honour stated:54 With regard to the actus reus which constitutes hindering I accept it that, while some overt act is required and mere inaction cannot amount to hindering (O’Hair v Killian,55 per Hogarth J, at p 9, per Mitchell J at 14), any act of interference or obstruction which makes the duty of the police officer substantially more difficult of performance is a hindering within the meaning of the section (Plunkett v Kroemer).56 But the mere performance of a conscious and voluntary act which makes the duty of the police officer substantially more difficult of performance cannot be enough to constitute the offence, otherwise a lame man crossing the road, without adverting to the consequences of his action and without any knowledge of the circumstances, who causes a police car in pursuit of a fleeing criminal, also in a car, to slow down or stop so that the fugitive car gets away would be guilty of the 50 (1975) 10 SASR 528 (‘Leonard’). 51 (1962) 107 CLR 381. 52 Leonard, 533. 53 Leonard, 531. 54 Leonard, 530-531. 55 (1971) 1 SASR 1. 56 [1934] SASR 124. -- 17 of 47 -- [2025] SASCA 126 Kourakis CJ 14 offence and that would be absurd. Some further mental element is necessary; in addition there may be possible justifications. (Citations included) 57 Wells J construed ‘hindering’ as follows:57 What must be proved against an alleged offender is conduct that, as a whole, is correctly characterized as a hindering. ‘Hindering’ is a complex fact comprising, in my opinion, acts by the alleged offender—movements or sounds or both; knowledge or appreciation that something is apparently being done or attempted by another; a realization that the probable consequence of what he, the offender, is doing will be to impede or obstruct the other person's acts or attempted acts; and an actual impeding or obstruction of the other person's acts or attempted acts in consequence of what the alleged offender did. 58 Leonard is therefore authority for the proposition that the intent presumption, which applies to performance of the physical actions of the offence, carries over to the effect (i.e. the result) of those actions, both of which in Leonard are encompassed by the word ‘hinder’. 59 In Vallance v The Queen,58 the High Court considered the fault element of the offence of wounding contrary to s 172 of the Criminal Code Act 1924 (Tas) (‘Criminal Code’),59 which provided that any person who unlawfully wounds or causes grievous bodily harm to any person is guilty of an offence. 60 The fault element was enacted by s 13(1) of the Criminal Code, which applied generally to all code offences, and provided that ‘no person shall be criminally responsible for an act unless it is voluntary and intentional, nor, except as hereafter expressly provided, for an event which occurs by chance.’ Section 13(1) of the Criminal Code was, in effect, the statutory equivalent of the intent presumption. 61 The circumstances of the offence in Vallance were as follows:60 The conviction was of unlawfully wounding one Pauline Ann Latham, a girl seven years of age. …. The applicant, a youth of seventeen years, picked up an air-gun which he knew to be loaded, aimed it in the general direction of the girl, and pulled the trigger with the intention of discharging the gun. A pellet from the gun struck the girl and pierced her flesh. But the applicant, who gave evidence, denied that he fired at the girl, and denied that he had any intention of causing her to be hit. His story was that he aimed at the ground close to her, intending only to frighten her. 62 The High Court unanimously held that the Full Court of the Supreme Court of Tasmania was correct to allow the prosecution appeal against Mr Vallance’s acquittal, because the trial judge directed the jury that the prosecution must prove that Mr Vallance must have intended to wound or foresaw that possibility and 57 Leonard, 542. 58 (1961) 108 CLR 56 (‘Vallance’). 59 Criminal Code Act 1924 (Tas). 60 Vallance, 62 (Kitto J). -- 18 of 47 -- [2025] SASCA 126 Kourakis CJ 15 desired it. Dixon CJ and Windeyer J held that the proper direction was that it was sufficient that the prosecution prove that Mr Vallance voluntarily and intentionally intended the girl to be wounded.61 Kitto, Taylor and Menzies JJ held that it was sufficient that Mr Vallance foresaw the possibility that the victim might possibly be wounded.62 63 The difference between the majority and the minority turned exclusively on the proper construction of s 13 of the Criminal Code, and not any question of legal principle. In particular, the difference turned on the meaning of the words ‘by chance’ in s 13 and the broader contextual implications for other offences in the Criminal Code, culpable homicide in particular. 64 For present purposes, what is material is the approach of Dixon CJ and Windeyer J to the application of s 13(1) of the Criminal Code to an offence of ‘wounding’, and the equivalence they drew between intention and acting with the foresight of the probability of the result, both of which are important for present purposes. 65 Dixon CJ explained:63 In the case of unlawful wounding the punishable act is the wounding. In s. 172 the words ‘by any means’ occur: they have an historical explanation but little present significance. However, they will serve to make the point. It is not enough to say the “means” used, or perhaps one should say the use of the means, under s. 13 (1) must be voluntary and intentional and that the wounding need not. The wounding is the crime, the punishable act, and it is the wounding which must be voluntary and intentional. I regret that I find myself unable to avoid this this reading of the words of s. 13 (1) because I find that there is such a weight of judicial opinion to the contrary. In its application to s. 172 it means that the wounding must be intentional. But in s. 13 (1) I do not read the word “intentional” as bearing a meaning which requires that the end must be positively desired. I take it in the sense explained by Sir Courtney Kenny, an explanation he gave when he published his book in 1902. He contrasts it with the more ordinary use of the word which excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret. 66 Windeyer J adopted the same approach to the application of s 13(1) of the Criminal Code to the conduct element of wounding:64 The general provisions of s. 13(1) have always to be read in relation to any particular crime charged, and as qualified or affected by any specific intent that in that crime must accompany the doing of the criminal act or of any act that is a specific ingredient of the crime. In this case no difficulty arises. The act is unlawfully wounding. There are no other ingredients in the crime charged. The question is: was this act intentional? It would, I consider, be inconsistent with the scheme of s. 13(1) to regard the ‘act’ there referred to as something less than the act of wounding; for it, and nothing less, is what would, if done intentionally, give rise to criminal responsibility. It is the corpus delicti, or the actus reus if one likes that inelegant phrase. I am unable to accept the argument that on a charge of 61 Vallance, 60-61 (Dixon CJ); 79-82 (Windeyer J). 62 Vallance, 63-64 (Kitto J); 68-69 (Taylor J); 73-74 (Menzies J). 63 Vallance, 60-61 (Dixon CJ). 64 Vallance v The Queen (1961) 108 CLR 56 (79-80). -- 19 of 47 -- [2025] SASCA 126 Kourakis CJ 16 unlawfully wounding the act to which s. 13(1) refers is some action, not of itself criminal, forming part, as it were, an act of wounding—some conduct short of wounding, such as pressing the trigger of a firearm. To wound a person by discharging a firearm, is, of course, a complex act, involving loading the piece, cocking it, presenting it, pressing the trigger. The act, that if done voluntarily and intentionally would constitute the crime, is the whole deed whereby the bullet was caused to strike and wound. If the wounding were done by stabbing, the act referred to in s. 13(1) could scarcely be said to be grasping the handle of the knife, raising the arm to strike, or anything less than the stabbing that produced a wound. The relevant question would not be, did the accused intent to grasp the handle or raise his arm, but did he intend to wound. Whether the wounding was done by a weapon wielded or a missile projected seems to me immaterial for the application of s. 13(1) to s. 172. The word ‘act’ is used in different sense in different parts of the Code. But in more than one place it is used, as one would expect it to be used, to describe conduct that, when the required intent be present, constitutes a crime’ see e.g., s 3(1), s. 7 and cf. c 2. In s. 13(3) it appears in the context ‘any person who with intent to commit any offence does any act’. But the word ‘act’ is there used in a difference sense from that which it has in the earlier sub-section. It is used for a different purpose. Sub-section (1) exonerates a man from responsibility for an unintentional act that, if it had been done intentionally, would itself be an offence. Sub-section (3) makes doing an act that is not itself an offence, an offence if it be done with intent to commit an offence and if it brings about an unforeseen result. That is how I read the two provisions. The argument that the ‘act’ in s. 13(1) means, in relation to s. 172, some action or conduct short of wounding would mean, it seems, that a person could be criminally liable if his intentional act resulted in an unintended wounding—as, for example, leaving broken glass where someone later walked and was wounded. 67 On the equivalence between acting intentionally and acting with a foresight of possibility, Windeyer J explained: The circumstances and probable consequences of a man’s act are no more than evidence of his intention. For this reason this Court has often said that it is misleading to speak of a man being presumed always to intend the natural and probable consequences of his acts. And this, I do not doubt, is so. Because intent is a state of mind, it becomes necessary to ask what is that state of mind; what for the purposes of the criminal law is comprehended in the idea of an intentional act. Under the law apart from the Code, an accused would be guilty of unlawfully wounding if his actual purpose was to inflict a wound he would also be guilty if, without any actual purpose to wound anyone, but foreseeing that what he was about to do was likely to cause a wound to someone, he yet went on to do it. The common law treats what was done recklessly, in that way, as if it had been done with actual intent. It says that a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word ‘intentional’ in the Code carries, I think, these concepts of the common law. I therefore do not read s.13 as altering these principles. It is, I may add, in my view undesirable to insist upon desire of consequence as an element in intention. There is a risk of introducing an emotional ingredient into an intellectual concept. A man may seek to produce a result while regretting the need to do so. 68 Accordingly, the only question is what fault element does the common law attach to the conduct of choking, suffocating or strangling. To apply the reasoning of Dixon CJ in Vallance to the circumstances of this case, it is the act of choking, suffocating or strangling to which the intent presumption must apply. -- 20 of 47 -- [2025] SASCA 126 Kourakis CJ 17 Discussion 69 The construction of s 20A of the CLCA must commence with the question whether the intention presumption applies to each of the words ‘choke’, ‘suffocate, and ‘strangle’. Plainly it does. The offence is a serious criminal offence and is not a regulatory or status offence. In any event, the Director does not contend otherwise. 70 On acceptance of that proposition the answers to the questions posed by this appeal follow inexorably. Each of the words encompasses both the physical movements of the person and their effect of restricting the victim’s breath and the presumption therefore applies to both. The legislature has not disaggregated the conduct from the result. The legislature has not enacted an offence ‘restricting a person’s breath by any means whatsoever’, or ‘engaging in conduct which occasions a restriction of breath’, either of which would enable the application of the presumption to the physical acts alone. If the legislature had so structured the provision, no fault element would attach to the result. Nor has the legislature enacted the offence of engaging in conduct recklessly indifferent to the risk that it may restrict a person’s breath. Framing the provision in that way would allow the intent presumption to apply to the conduct and the fault element of foresight of possibility to apply to the result. 71 The primary contention of the Director that no fault element attaches to the resultant restriction of breath requires a rewriting of s 20A of the CLCA so that it reads: A person who intentionally applies pressure to another’s neck;65 or places any physical or chemical barrier on or close to the nose or mouth of another,66 such that the person’s capacity to breathe is affected is guilty of an offence. 72 The rewrite of s 20A of the CLCA in that way adopts the structure of s 20(4) of the CLCA. But the legislature chose not to adopt that template in enacting s 20A of the CLCA. 73 I would not construe s 20A of the CLCA in a way which accords with a template which the legislature eschewed. 74 The alternative contention of the Director that the result fault element is foresight of the possibility that the victim’s capacity to breathe will be affected also requires s 20A of the CLCA to be re-written to read: A person who intentionally applies pressure to another’s neck, or places any physical or chemical barrier on or close to the nose or mouth of another, reckless as to whether the person’s capacity to breathe may be restricted is guilty of an offence. 65 Conduct which may result in choking or strangling. 66 Conduct which may result in suffocating. -- 21 of 47 -- [2025] SASCA 126 Kourakis CJ 18 75 Reframing s 20A of the CLCA in that way adopts the form s 20AA(2) of the CLCA,67 save that the latter provision requires the conduct which creates the risk of harm to be intentional, but it is sufficient that the very act by which the harm is caused is foreseeable even if unintended. 76 The provision so construed also bears some resemblance to ss 29 and 29A of the CLCA. 77 However, in drafting the offence of choking, strangling or suffocating, the legislature chose not to adopt those templates. 78 The very contentions of the Director that it is open to the Court to construe s 20A of the CLCA either in a way which imposes strict liability for the result, or liability founded on recklessness exposes the quasi-legislative power the Court is being asked to exercise. I might add that if strict liability or recklessness are available so must foresight of probability. The nature of the offence and statutory context are incapable of supporting a judicial choice between the available mental states. This Court has neither the expertise nor information, whether by way of evidence or judicial notice, to be able to confidently say whether one construction or another would make a material difference to the protection of persons vulnerable to domestic or other violence. Nor does it appear that the legislature had material before it which may have informed its legislative choice. 79 On the other hand, this Court is bound by the decision of the High Court in He Kaw Teh which establishes the default presumption that, in the absence of a statutory indication to the contrary, criminal provisions will be construed to include intention or foresight of probability as the fault element attached to the proscribed conduct. 80 Accordingly, I hold that the direction of the Judge on the fault element of s 20A of the CLCA was wrong in law. Conclusion 81 The Director did not contend that the proviso should be applied if the direction was erroneous. I would allow the appeal, set aside the conviction and order a new trial. 67 See ss 20AA(2), 23(3) and 24(2) of the CLCA. -- 22 of 47 -- [2025] SASCA 126 Lovell and David JJA 19 82 LOVELL AND DAVID JJA: The appellant was charged with the following offences of violence against the complainant, his former domestic partner: 1. aggravated assault (Counts 1, 4, 8 and 11), contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’); 2. aggravated assault causing harm (Counts 2 and 3), contrary to s 20(4) of the CLCA; 3. unlawful choking, suffocation or strangulation (Counts 5 and 10), contrary to s 20A of the CLCA; 4. aggravated threatening to cause harm (Count 6), contrary to s 19(2) of the CLCA; 5. aggravated criminal trespass in a place of residence (Count 7), contrary to s 170A(1) of the CLCA; and 6. aggravated serious criminal trespass in a place of residence (Count 9), contrary to s 170(1) of the CLCA. 83 The appellant allegedly committed the offences between 6 and 28 December 2021. Following a trial by jury, the appellant was convicted of Counts 6, 7, 9, 10 and 11, and an alternative offence to Count 2 (aggravated assault). The appellant now appeals his conviction on Count 10 on the sole ground that the trial Judge erred in his directions to the jury regarding the elements of the offence of unlawful choking, suffocation or strangulation in a domestic setting contrary to s 20A. 84 Under the (amended) appeal notice, the appellant complains that the trial Judge made errors of law in the directions he gave the jury as to the elements of the s 20A offence. Contrary to the trial Judge’s directions, the appellant contends that the prosecution must prove that the act of choking is constituted by the significant hinderance or restriction of the victim’s breathing; and where recklessness is invoked as the fault element for s 20A, the prosecution is required to prove that the accused foresaw the significant hinderance or restriction of the victim’s breathing as the probable (as opposed to possible) consequence of his or her act and proceeded to act, nonetheless. 85 At the request of the Court, the parties provided further submissions as to the requisite fault element for s 20A. In the appellant’s written submissions, he now contends that the fault element for an offence contrary to s 20A is an actual intent to commit the act of choking, suffocating or strangling and recklessness will not suffice. 86 This appeal ground requires a consideration of the elements of the s 20A offence. -- 23 of 47 -- [2025] SASCA 126 Lovell and David JJA 20 87 For the reasons which follow, we grant permission to appeal but dismiss the appeal. The evidence at trial 88 The prosecution case relied primarily on the complainant’s evidence. In addition, there was evidence adduced of implied admissions made by the appellant during a telephone conversation on 7 May 2023. 89 The appellant did not give or call any evidence. Defence counsel, in his closing address, suggested that the complainant was evasive, inconsistent, unreliable and inaccurate; that the jury should have no confidence in relying on her evidence; and accordingly, the prosecution had not proved the offence beyond reasonable doubt. The prosecution case 90 The complainant gave evidence that she first met the appellant when she was 13 years old. The appellant was aged between 16 and 18 years at the time. When she was around 21 or 22 years old, she met the appellant again. From mid-2020 to July 2021, the complainant was in a relationship with the appellant, although their relationship was on and off until the end of December 2021. Their relationship ended when the complainant discovered that she was pregnant with their child, [K], born on 24 October 2021. The complainant has two other children from a previous relationship. 91 The complainant gave evidence that the appellant was violent towards her. She said that he would pull her hair, strangle her, slap her repeatedly, put his hands over her mouth and kick her. When he strangled her, he had two ways of doing it: he would put his forearm across her neck; or he would use his two hands to squeeze her neck. She gave evidence that he strangled her with his hands to her throat around three or four times, and he used his forearm on her throat around four times. 92 The first charged incident, the subject of Counts 1–6, occurred on 6 December 2021 when the complainant and her three children stayed overnight at the appellant’s home. When the appellant picked up their child, he said that the child smelt like another man. The pair began arguing and the argument escalated into physical violence. 93 The second charged incident, the subject of Counts 7–8, occurred on 26 December 2021 when the appellant attended the complainant’s home and verbally abused her about her whereabouts on Christmas day. The complainant asked the appellant to leave multiple times, but he refused. 94 The third charged incident, the subject of Counts 9–11, took place on 28 December 2021 when the complainant woke to find the appellant in her bedroom ripping the blanket off her bed. She said that he grabbed the complainant and pressed his right forearm across her throat with enough force to prevent her from breathing. He then hit her to the head with an open hand several times. -- 24 of 47 -- [2025] SASCA 126 Lovell and David JJA 21 95 The appellant was arrested and charged with all offences on an Information dated 23 September 2022. 96 Relevantly to this appeal, in relation to the incident of alleged choking on 28 December 2021 (the subject of Count 10), the complainant said: A: So this was the last time I had seen him. It was about 3:30, 3 o’clock in the morning and he broke into the house, like busted the screen door, kicked the wooden door in and I woke up to him ripping the blankets off me. I remember him pushing my face into the pillows, all the pillows into my face. I can’t quite recall which one that was. He had then at some point was continuously slapping me. He had put his forearm over my throat. He had also strangled me while saying that he’ll let go if I’d be with him forever and he gets full custody of [K], our son. … Q: You mentioned that he has placed his forearm over your neck. A: Yes. Q. What impact did that have on you. A: Well, for a second, I couldn’t breathe, I was laying down with his arm (INDICATES) against my throat. … Q: Now you mentioned about how he strangled you. How did you strangle you, with one or two hands. A: With two (INDICATES). Q: Two up against your neck. A: Yeah, like around my neck, yes (INDICATES). … Q: What impact did the strangling have on you? A: I couldn’t breathe, and I couldn’t say anything. … 97 The complainant gave evidence that following this incident, she attended a police station on 30 December 2021, at which time she reported the alleged offences. 98 In addition to the complainant’s evidence, the prosecution relied on implied admissions made by the appellant in a recorded telephone conversation on 7 May 2023. During this phone call, the appellant agreed that he attended the complainant’s home at 3:00am in the morning on 28 December 2021 and strangled -- 25 of 47 -- [2025] SASCA 126 Lovell and David JJA 22 her. A transcript of the conversation was tendered68 and transcribed the conversation in the following terms: [Complainant]: …but the thing is [the appellant] what you did actually happened [Appellant]: Yeah, look [Complainant]: So it’s not really fair to sit there and make it sound like I’m lying, that you never came to my house that night and you never strangled me, like, it’s also not fair for me when you know what happened. [Appellant]: I’ve over-reacted in many stupid ways…I would agree with everything you’ve got to say about any incident anyway. …. [Complainant]: You shouldn’t have come to my house at 3 o’clock that morning that night. That’s, that would, we would not be in this situation right now if it wasn’t for that one…last incident. [Appellant]: I know what I should and shouldn’t have done, but I got frustrated cause the whole like not seeing [K] and all that, and you disappearing for Christmas me not knowing where the fuck you were… The defence case 99 The defence case was that the complainant could not be accepted as a credible or reliable witness. Defence counsel, in his closing address, emphasised the inconsistencies in the complainant’s evidence, particularly as they related to the complainant’s evidence of the choking incident on 28 December 2021. He said: …ladies and gentlemen, all of the evidence you heard about the accused putting his hands around the neck of the complainant came up for the first time as the complainant was giving evidence in this court. Not contained in any of her previous statements including the one that she specifically gave about that incident when she attended at the police station on 30 December 2021. Not a mention of that. … The prosecution case relies on the evidence of the complainant. Before you could find the accused guilty you would need to be satisfied both of the complainant’s honesty and her reliability beyond a reasonable doubt, and in my respectful submission, the complainant was not an honest witness. 100 It was also suggested by defence counsel that during the recorded telephone conversation on 7 May 2023, the appellant did not make any admissions but rather, he was trying to appease the complainant so that she would drop the charges against him. 101 Defence counsel put to the complainant that the alleged acts of choking simply did not happen. It was suggested to the complainant that she was motivated 68 Trial Exhibit VDP2 at [4]–[5]. -- 26 of 47 -- [2025] SASCA 126 Lovell and David JJA 23 to fabricate the allegations for three reasons: to deflect child abuse allegations against her; to prevent the appellant obtaining custody of their child [K]; and to avoid her mother reporting her to the authorities because she was continuing to see the appellant. 102 The complainant was also cross-examined about being told by the appellant on 28 December 2021 that he intended to obtain custody of [K], and the fact that it was only then she reported the allegations to police. She agreed that on the morning of 28 December 2021, the appellant told her that he intended to obtain custody of [K] but denied having fabricated the allegations. 103 The defence case (as put to the complainant and articulated during the closing address) was that the alleged choking incident the subject of Count 10 did not happen at all. The trial Judge’s directions 104 After referring to the evidence of the complainant, the trial Judge gave the jury the following directions as to the elements of the s 20A offence:69 I will move on to consider the offence of unlawful choking, suffocating or strangling in a domestic setting. The offence is charged as count 5 and 10 on the Information. To prove this offence, the prosecution must prove five elements beyond reasonable doubt. These are: (1) the accused was or had been in a relationship with the other person; (2) the accused choked, suffocated or strangled a person by applying pressure to her neck or throat; (3) the other person did not consent to the choking; (4) the accused’s actions were done deliberately intending to choke, strangle or suffocate [the complainant] that is, intending to hinder, restrict or stop her breathing or he was reckless as to whether [she] was choked; and (5) the accused’s act was unlawful and I will now explain those four elements and how they apply in this case. … The second element is that the accused choked, suffocated or strangled [the complainant] by applying pressure to her neck or throat. … In relation to the offence of unlawful choking, in count 10 of the Information, the prosecution case, based on its opening address, is that on 28 December 2021, the accused choked [the complainant] by placing his forearm over her throat, preventing her from breathing. The prosecution relies on the evidence of [the complainant] to prove this element of the offence under count 10 on the Information. In her evidence [the complainant] said that the accused put his forearm over her throat for a second and she could not breathe. She said she was lying down with his arm against her throat. On the defence case this incident did not occur. You will recall that an aspect of the defence case to which I have already referred, whereby it was suggested that [the complainant] had let [the appellant] into the house that morning and cooked a frozen meal for her which they 69 AB 100–102. -- 27 of 47 -- [2025] SASCA 126 Lovell and David JJA 24 ate together. You will recall the defence suggested to [the complainant] that [the appellant] had fed the child and they slept together after he had told her there was a female friend staying at his house. That is a female friend of his sister's staying at his house. You will recall that it was suggested that [the complainant] woke up some time later and became angry about a woman staying over at [the appellant’s] house and that she attacked him. It was suggested on the defence case that [the appellant] then ended the relationship and told [the complainant] that he intended to get custody of [K]. On the defence case [the complainant] fabricated the allegations of 28 December 2021, including the choking incident, to prevent [the appellant] from reporting her for child abuse and obtaining custody of their child. Before you find this charge proven, you must be satisfied of the evidence of [the complainant] beyond reasonable doubt that the choking incident involved the allegation that the accused hindered her breathing by placing his forearm over, across her throat. You must be satisfied beyond reasonable doubt that [the complainant] did not fabricate the allegation to prevent a child abuse report against her and to prevent [the appellant] obtaining custody of [K]. … The fourth element of the offence of unlawful choking that the prosecution is required to prove is that the accused did the alleged act deliberately, intending to choke, strangle or suffocate [the complainant] or that he was reckless about whether [the complainant] was choked, strangled or suffocated. That means that the prosecution must prove that [the appellant] specifically intended to hinder, restrict or stop her breathing. Alternatively, it must prove that he was reckless about whether he choked her by hindering or stopping her breathing. Reckless means that the accused foresaw the possibility that her breathing would be hindered, restricted or stopped by his actions. That is by applying pressure to her neck, but he continued to do so nonetheless. (Emphasis added.) 105 The appellant challenges the correctness of the trial Judge’s directions in relation to the second and fourth elements of the offence. The appeal ground 106 The ground of appeal (as amended) is particularised as follows: a. The trial Judge erred in directing the jury that the element of recklessness for the purposes of s 20A of the Criminal Law Consolidation Act 1935 (SA) required foresight of no more than the possibility of choking or hinderance of the breathing of the complainant. b. The trial Judge erred in failing to direct the jury that the element of recklessness for the purposes of s 20A of the Criminal Law Consolidation Act 1935 (SA) required foresight of a significant hindering or restriction to the breathing of the complainant. 107 As mentioned earlier, the appellant also contends that the fault element for s 20A requires the prosecution to prove that the appellant had an actual intent to significantly hinder or restrict the breathing of the complainant, and recklessness will not suffice. -- 28 of 47 -- [2025] SASCA 126 Lovell and David JJA 25 108 These appeal grounds (as amended and further refined in the appellant’s later written submissions) raise the antecedent issue of the correct elements of an offence contrary to s 20A of the CLCA. This in turn raises questions of statutory construction. The elements of s 20A 109 At the time of the alleged offending,70 section 20A of the CLCA provided: 20A – Choking, suffocation or strangulation in a domestic setting (1) A person who– is, or has been, in a relationship with another person; and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) However, conduct that is justified or excused by law cannot amount to an offence against this section. (3) … (4) If— (a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against this section has been established; but (b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of an offence of assault; and (c) the jury is satisfied beyond reasonable doubt that the offence of assault has been established, the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of assault. 110 It is convenient to commence with a consideration of the physical elements of s 20A of the CLCA, and the second part of the appeal ground. 111 At the time of the alleged offence, the words ‘choke’, ‘suffocate’ and ‘strangle’ were not defined in the CLCA. Therefore, the identification of the elements of s 20A requires the ordinary application of principles of statutory 70 The Criminal Law Consolidation (Section 20A) Amendment Bill 2024 (SA) came into operation on 1 May 2025 and creates a new offence of choking, suffocation or strangling in a domestic setting causing harm. The terms ‘choking’, ‘strangling’ and ‘suffocating’ are now also defined for the purposes of both s 20A and the newly inserted offence. Pursuant to the new provisions, ‘choking’ or ‘strangling’ a person means the applying of pressure to the person’s neck to an extent that is capable of affecting the breath or the flow of blood to the head of the person; and ‘suffocating’ includes a reference to (i) obstructing, to any extent, any part of the person’s respiratory system; or (ii) interfering, to any extent, with the operation of the person’s respiratory system; or (iii) impeding, to any extent, the person’s respiration. -- 29 of 47 -- [2025] SASCA 126 Lovell and David JJA 26 construction. A statutory offence or penal provision, such as s 20A, is to be construed by reference to the ordinary principles of construction including the text, context and purpose of the Act. 112 In R v A2 (‘A2’),71 the High Court considered the correct approach to construing the meaning of the words used in an offence provision. In A2, the appellants were each charged with an offence of ‘genital mutilation’ contrary to s 45(1) of the Crimes Act 1900 (NSW) (‘Crimes Act’). The appellants challenged their convictions on the basis that the trial Judge had misdirected the jury on the meaning of ‘otherwise mutilates’ in s 45(1) of the Crimes Act. In relation to construing a penal provision, in a joint judgment, Kiefel CJ and Keane J explained:72 The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight. The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required 71 R v A2 (2019) 269 CLR 507. 72 R v A2 (2019) 269 CLR 507 at [32]–[37]. -- 30 of 47 -- [2025] SASCA 126 Lovell and David JJA 27 consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred. 113 The High Court made plain that when construing the legal meaning of words used in an offence provision, a consideration of context is undertaken at the first stage of the process. Moreover, context is to be understood as including the whole of the statutory provisions of the relevant Act, its legislative history, the purpose and policy of a provision and the mischief that the statute is intended to remedy. 114 It is to be accepted that where doubt exists in the construction of a penal provision, courts should interpret the provision so as not to extend criminal liability. However, this principle is only applicable when ambiguity is intractable. In A2, Kiefel CJ and Keane J observed of this principle:73 …The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any “loose” construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction. 115 Section 14 of the Legislation Interpretation Act (2021) (SA) (‘the LIA’) is also applicable. It relevantly provides: 14—Interpretation best achieving purpose or object (1) In interpreting a provision of an Act or a legislative instrument, the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation. (2) This section does not operate to create or extend any criminal liability. 73 R v A2 (2019) 269 CLR 507 at [52]. -- 31 of 47 -- [2025] SASCA 126 Lovell and David JJA 28 116 While s 14(2) is intended to be a safeguard so as not to create or extend criminal liability, it does not preclude the purposive interpretation of an offence or penal provision.74 117 As mentioned earlier, the appellant contends that the words ‘choke’, ‘suffocate’ and ‘strangle’ should be construed as requiring a significant restriction or hindering of the victim’s breathing consistent with the literal meaning of the words and the text of s 20A. On the other hand, it is the Director’s contention that having regard to the context and purpose of the provision, and the mischief which the statute is intended to remedy, it is only necessary for the prosecution to establish some restriction of the victim’s breathing in proof of this element of the offence. 118 According to the Macquarie Dictionary, the words choke, strangle and suffocate have the following ordinary meanings:75 Choke (transitive verb) i. to stop the breath of, by squeezing or obstructing the windpipe; strangle; stifle; suffocate; ii. to stop, as the breath or utterance, by or as by strangling or stifling; iii. to check or stop the growth, progress or action of: to choke off discussion; iv. to stop by filling; obstruct; clog; congest; v. to suppress, as a feeling or emotion; vi. to fill chock-full; vii. to enrich the fuel mixture of (an internal-combustion engine) by diminishing the air supply to the carburettor; or viii. to stop the forward motion of (a load) by strapping it down tightly: to choke the load. Suffocate (transitive verb): i. to kill by preventing the access of air to the blood through the lungs or analogous organs, as gills; ii. to impede the respiration of; iii. to cause discomfort to through lack of cool or fresh air; or iv. to overcome or extinguish; suppress. Strangle (transitive verb): 74 R v HBZ [2020] QCA 73 at [54] (Mullins JA). 75 Macquarie Dictionary, as of 21 October 2024. -- 32 of 47 -- [2025] SASCA 126 Lovell and David JJA 29 i. to kill by compression of the windpipe, as by a cord around the neck; ii. to kill by stopping the breath in any manner; choke; stifle; suffocate; or iii. to prevent the continuance, growth rise, or action of; suppress. 119 It is noteworthy that the dictionary definitions of the words, ‘choke’, ‘suffocate’ and ‘strangle’ each have a meaning involving acts that have the consequence of compromising a person’s ability to breathe. While recognising that s 20A is a non-fatal offence, the relevant physical element should reflect this common aspect of the ordinary meaning of the words. Further, it is also apparent from the dictionary definitions that the words can, depending on their context and emphasis, be used interchangeably. This suggests each of the concepts is to be construed as overlapping. 120 Turning more directly to matters of context and purpose, it is permissible to have regard to extrinsic materials when determining the objectives underlying s 20A.76 121 Section 20A was introduced into the CLCA by the Statutes Amendment (Domestic Violence) Bill 2018 (SA). On the second reading of the Bill, the Attorney-General described the main objective of the Bill as a measure to combat domestic and family violence:77 The Attorney-General said:78 Clause 6 inserts a new stand-alone offence of choking, suffocation or strangulation in a domestic setting. The new offence has a maximum penalty of seven years’ imprisonment and will apply if a person who is or has been in a relationship with another person, chokes, suffocates or strangles that person without their consent. There is no requirement that harm be intended or caused. Rather, it is the conscious and voluntary act of choking, suffocating or strangulation that proves the offence. The creation of a new offence, rather than simply relying on existing offences such as causing harm or serious harm, endangering life or attempted murder, serves a number of purposes: firstly, it increases the penalty for this behaviour where no harm is caused; secondly, it recognises the inherent dangerousness of this conduct in a domestic setting and its indication of escalation to domestic homicide; thirdly, it educates police and the community; and, finally, it assists in the assessment of risk to the victim. In addition to the new offence, new subsection (4) provides for an alternative verdict of assault where a jury is not satisfied beyond a reasonable doubt that the strangulation offence has been established. 122 It is plain Parliament’s rationale for introducing a separate offence was to capture conduct described as choking, strangling or suffocating, which occurs in a domestic setting, was not only the inherent dangerousness of this conduct, but also the fact it is a predictor of the escalation of domestic violence to domestic homicide. The provision was also designed to provide a significant penalty for the 76 Legislation Interpretation Act 2021 (SA) s 16. 77 Parliament of South Australia, House of Assembly, Hansard, 24 October 2018, 3131. 78 Parliament of South Australia, House of Assembly, Hansard, 24 October 2018, 3131. -- 33 of 47 -- [2025] SASCA 126 Lovell and David JJA 30 conscious and voluntary act of choking, suffocating or strangulation without any requirement to prove that harm was intended or caused to the victim. 123 The meaning of ‘choking’ has been considered in the context of two similar offence provisions in Queensland and the ACT. 124 In R v Green (No 3) (‘Green’),79 the defendant was charged with an offence contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). That section provides that ‘a person who intentionally and unlawfully chokes, suffocates or strangles another person … is guilty of an offence…’. In Green, at the close of the prosecution case, the defendant made a no case to answer submission on the basis that choking means stopping the victim’s breath as opposed to merely restricting the breath; and there was insufficient evidence to establish this element of the offence. Justice Loukas-Karlsson construed the meaning of the word ‘choke’ as ‘stopping the breath’ and on that basis found there was no case to answer. 125 Justice Loukas-Karlsson arrived at this conclusion on the basis that the terms ‘choke’, ‘suffocate’ and ‘strangle’ each have dictionary definitions involving a stopping of breath and considered that this meaning was consistent with the nature of the other offences encapsulated in s 28(2). Her Honour also relied on statutory principles of construction applicable to a penal provision, and said:80 Finally, as this is a penal statute, where doubt exists in the construction of a penal statute, courts should interpret the statute so as not to extend a category of criminal offences. Therefore, consistent with this approach, to stop the breath (albeit for one breath or one second) is in my view the correct statutory construction of this statute. The alternative construction of impeding or restricting the breath is an ambiguous construction in the context of construing a penal statute. It would be difficult to administer an offence which is based on restricting the breath as opposed to stopping the breath. Therefore, stopping the breath, an inability to breathe, is in my view the correct construction. The alterative construction invites the question of the requisite extent of restriction necessary to constitute the offence. Obviously, an alternative charge of assault is available in such circumstances. 126 It is important to recognise that Green was decided before the High Court delivered the judgment of R v A2. 127 In the present case, while the appellant accepts that the words ‘choke’, ‘suffocate’ and ‘strangle’ do not mean the stopping of breath, he submits that the reasoning in Green supports his contention that a significant restriction or hindering of the victim’s breathing is necessary in proof of the physical element of the offence consistent with the literal meaning of the words ‘choke’, ‘strangle’ or ‘suffocate’ and the text of s 20A. 79 R v Green (No 3) [2019] ACTSC 96 (Loukas-Karlsson J). 80 R v Green (No 3) [2019] ACTSC 96 at [47]. -- 34 of 47 -- [2025] SASCA 126 Lovell and David JJA 31 128 In R v HBZ (‘HBZ’),81 the Queensland Court of Appeal declined to follow Green. The issue on appeal in HBZ was the correct construction of the word ‘choke’ in s 315A of the Criminal Code Act 1899 (Qld). This section provides: 315A—Choking, suffocation or strangulation in a domestic setting (1) A person commits a crime if— (a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and (b) either— (i) the person is in a domestic relationship with the other person; or (ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012. Maximum penalty—7 years imprisonment. … (2) An assault is not an element of an offence against subsection (1). 129 When construing the meaning of the word ‘choke’, the Queensland Court of Appeal referred to ss 14A(1) and (2) of the Acts Interpretation Act 1954 (Qld) which are not materially different to ss 14(1) and (2) of the LIA, as well as the High Court decision in R v A2. After referring to various extrinsic materials,82 Mullins JA observed:83 The gravamen of the offending conduct which the offence seeks to deter is the action of one domestic partner towards the other that is described as either choking, strangling or suffocating the victim and not the consequence of the act. The rationale for the offence is that even though one incident in the domestic context of choking, strangling or suffocating may not result in any serious injury, the conduct must be deterred, because it is inherently dangerous and experience shows that if it is repeated, death or serious injury may eventually result. 130 The Court proceeded to decline to follow Green and held: …In order to achieve the purpose of the introduction of this offence, “chokes” must be construed as the act of the perpetrator that hinders or restricts the breathing of the victim and does not require proof that breathing was completely stopped, although the hindering or restriction of the breathing would encompass the stopping of the breathing. The act of choking will not be proved, unless there is some detrimental effect of the breathing of the victim, because otherwise it would not constitute the act of choking. Even if the restriction of the breathing, as a result of the action of choking the victim, is of short duration, without any lasting injury, and does not result in a complete stoppage of the breath of the victim, 81 R v HBZ [2020] QCA 73. 82 R v HBZ [2020] QCA 73 at [55] (Mullins JA, McMurdo and Boddice JJA agreeing). 83 R v HBZ [2020] QCA 73 at [56]–[58] (Mullins JA, McMurdo and Boddice JJA agreeing). -- 35 of 47 -- [2025] SASCA 126 Lovell and David JJA 32 that will be sufficient, as the offence is directed at deterring that type of conduct from occurring at all. To the extent that the reasoning in Green justified the construction that choking means stopping the breath, because of the difficulty of administering an offence which is based on restricting the breath, that concern can be addressed in respect of s 315A by focusing on the act that amounts to the choking, strangling or suffocating of the victim. There is no choking, if the perpetrator merely puts his or her hands to the neck of the victim. In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing [is] not a separate element of the offence, but the evidence required to prove the act of choking. 131 As mentioned earlier, it is plain from the extrinsic materials that Parliament’s intention in enacting s 20A was multifaceted. The enactment of the provision sought to capture unlawful conduct meeting the description of choking, suffocating or strangling; identify this conduct as predictive of the escalation of domestic violence to domestic homicide; denounce this type of offending; and deter others, more generally, from engaging in the conduct. The creation of a standalone provision with a significant penalty, which requires no proof that harm was intended or caused to the complainant, recognised the inherent dangerousness of the act of choking, strangling or suffocating a domestic partner, even where there is no consequential harm caused to the victim. 132 Having regard to the extrinsic materials and the mischief which the provision sought to remedy, and the fact that the ordinary meaning of each of the words choking, suffocating and strangling includes compromising a person’s ability to breathe, we consider there is no textual or contextual basis to construe the words choke, strangle or suffocate as requiring a significant restriction of the victim’s breathing. To construe the provision in this way would not give effect to the purpose for which it was introduced, namely, to denounce and deter this type of conduct from occurring at all. 133 Moreover, there is an obvious difficulty in administering an offence under s 20A if a particular level of restriction or impediment is required in proof of the physical element of the offence. Such conduct will generally occur in a volatile environment, and in the context of other violent offences. To require proof that a victim’s breathing was significantly stopped in order to constitute the physical element of the offence would be difficult, almost impossible, to measure and would add an unnecessary layer of complexity which would serve to undermine the purpose of the offence provision. 134 Properly construed, we are satisfied that for the purposes of s 20A, an act constitutes choking, suffocating or strangling if it hinders or restricts the -- 36 of 47 -- [2025] SASCA 126 Lovell and David JJA 33 complainant’s breathing. Accordingly, there was no error by the trial Judge as to this aspect of the physical elements of s 20A. The fault element of s 20A 135 Section 20A makes no explicit reference to a fault element. However, there is a presumption that mens rea, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence.84 That presumption can be displaced either expressly, or by necessary implication. In deciding whether the presumption has been displaced, regard is to be had to the words of the statute creating the offence, the subject matter with which the statute deals, and the mischief at which the statute is aimed. 136 As Brennan J said in He Kaw Teh v The Queen (‘He Kaw Teh’):85 …It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence. 137 Brennan J went on to explain what is meant by the external elements of an offence (or conduct, circumstances or results) in the following terms:86 …Criminal responsibility depends not only upon a person's act or omission but also upon the circumstances in which the act is done or the omission made, usually upon his state of mind at that time and sometimes upon the results of his act or omission. However, the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These elements – conduct, circumstances and results – are what Dixon C.J. in Vallance v. The Queen called "the external elements necessary to form the crime". When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind… (citations omitted). 138 It was common ground between the parties, and it is to be accepted, that s 20A implicitly contains a fault element. The criminal nature of the offence and 84 He Kaw Teh v The Queen (1985) 157 CLR 523 at 594 (Dawson J); Lim Chin Aik v The Queen (1963) AC 160 at 173 (Viscount Radcliffe, Lord Evershed and Lord Devlin); Sweet v Parsley (1970) AC 132 at 152 (Lord Morris of Borth-y-Gest). 85 (1985) 157 CLR 523 at 567 (Brennan J). 86 He Kaw Teh v The Queen (1985) 157 CLR 523 at 564–565 (Brennan J). -- 37 of 47 -- [2025] SASCA 126 Lovell and David JJA 34 the significant penalty which attaches to it, support a conclusion that the presumption of mens rea has not been displaced. 139 Accepting that the presumption of mens rea as described in He Kaw Teh is not displaced, the issue on this appeal concerns a constructional exercise identifying the mens rea or fault element applicable to s 20A. This in turn raises three further questions of statutory construction. 140 First, whether the external element of ‘choking, suffocating or strangling’ is an amalgamation of two elements, namely the physical act of applying force to the complainant’s neck or throat, and the consequences or result of that conduct (the inhibition or restriction of the complainant’s breath). Or, alternatively, whether the external element of ‘choking, suffocating or strangling’ is indivisible and one proscribed act. 141 Secondly, if the external element is divisible, whether a fault element attaches to the consequences or result of applying force to the complainant’s neck or throat, and if so the identification of the fault element which attaches to the consequences or result. 142 Thirdly, if recklessness is sufficient as the fault element, whether it requires foresight of the possibility of the relevant consequences or result; or, alternatively, foresight of the probability of those consequences. 143 When undertaking this constructional exercise, it is necessary to again consider the external elements of the s 20A offence. Textually, the offence is comprised of the following physical or external elements: 1. The accused is or was formerly in a relationship with the complainant; 2. The complainant does not consent to being choked, suffocated or strangled; and 3. The accused “chokes, suffocates or strangles” the complainant. 144 The appellant contends that the third external element – that the accused engages in conduct of ‘choking, suffocating or strangling’ – is not divisible because the proscribed act encompasses or subsumes the consequence or result of that act (that is, the restriction of breath). The proscribed act of ‘choking, suffocating or strangling’ is limited to the conduct required to prove the offence. Accordingly, there is no integral or attendant circumstance that might be proved by a lesser species of intent. 145 Contrary to the appellant’s contention, the third external element is made up of two parts: that the accused engages in an act or conduct (that is, applies force to the victim’s neck or throat) with the consequence that the complainant’s breathing was impeded or restricted. The act or conduct of applying pressure to an airway is divisible from the effect of that action (the hinderance of breath). As the Director -- 38 of 47 -- [2025] SASCA 126 Lovell and David JJA 35 submits, the hinderance of breath is properly characterised as a result. ‘Choking, suffocating or strangling’ connotates a causative relationship between the application of force to the complainant’s neck or throat and the restriction of breath. A restriction in a person’s ability to breathe at the same time (but not caused by) the application of force is not sufficient to establish this element.87 The conduct is choking because of its effect on the airway of the victim. For that reason, the restriction or hinderance of breath is properly characterised as a result. 146 In determining the fault element which applies to the third external element, the characterisation of each part of this element takes on some significance. In He Kaw Teh, Brennan J explained that:88 Moral excuses find counterparts in the categories of mental states that are indifferently described as mens rea and that apply to several external elements of an offence. Thus, voluntariness and intent are the mental states ordinarily applicable to an act involved in an offence, knowledge or the absence of an honest and reasonable but mistaken belief is the mental state ordinarily applicable to the circumstances in which a relevant act is done or omission is made, and, where a mental state is applicable to results, it may be either foresight of the possibility of their occurrence (if recklessness is an element), or knowledge of their probability (or likelihood) of their occurrence or an intention to cause them (if a specific intent is an element)… 147 It does not necessarily follow from the amalgamation of two parts to an external element in a single term that Parliament’s intention was to attach a fault element to both the act and result which make up that term; nor indeed that Parliament intended to attach the same fault element to each part. In R v Hoskin,89 the external elements which comprised ‘wounding’ (an act and a result) were divisible with separate fault elements attaching to each (despite them being amalgamated in one word). 148 Accepting that the presumption of a fault element is not displaced, and the external element of choking, suffocating and strangling is an amalgamation of an act and a result, the question remains as to whether a fault element attaches to the result. 149 The Director contends that the fault element only attaches to the accused’s act or conduct (the application of force to the neck or throat), and not the result. That is, an accused must intend to apply force to the complainant’s neck or throat and this force, in fact, results in the restriction or impediment of the victim’s breath. In support of this contention, the Director submits that the mischief which the provision seeks to remedy is conduct which has the potential to cause death or serious injury and not the consequences of the act, or proof of harm. The Director submits that to construe the fault element as attaching to the result or consequences 87 An accused person may be liable to be convicted of the alternative offence of assault contrary to s 20A(4) of the Criminal Law Consolidation Act 1935 (SA). 88 He Kaw Teh v The Queen (1985) 157 CLR 523 at 568. 89 R v Hoskin (1974) 9 SASR 531. -- 39 of 47 -- [2025] SASCA 126 Lovell and David JJA 36 of an accused’s act would be inconsistent with a purposive construction of the provision. 150 In construing the provision, and when considering the Director’s contention as to the reach of the fault element, it is first important to recognise, as outlined above, that the third external element of the offence will not be proved unless the accused’s act or conduct results in some detrimental effect on the breathing of the victim. Otherwise, the impugned conduct would not constitute choking, strangling or suffocating.90 Bearing in mind that the provision is a standalone offence which seeks to capture conduct of a particular nature (i.e. the application of force to the area of the neck and throat which has the consequence of a restriction of the victim’s breath), and the significant penalty which attaches to the provision, the fault element should extend to the whole of the impugned conduct. Should it not, there would also be little work for the statutory alternative offence of assault because it is difficult to envisage a situation where there is a deliberate application of force to a victim’s neck or throat which does not result in any restriction of the victim’s breath. 151 It follows that for the purposes of s 20A, the fault element of the offence extends to both the act and the result, which together constitute ‘choking, suffocating or strangling’. 152 As to the second issue, accepting that the presumption is not displaced and the fault element extends to both the application of force and its consequence or result, there remains the question of identifying the appropriate fault element which attaches to the result. There can be no doubt that an accused person must deliberately engage in the conduct of applying force to the victim’s neck or throat, and the reckless application of force will not suffice. The question remains as to the appropriate fault element which applies to the consequence or result of that conduct. 153 At common law, depending upon the nature of the particular offence the requirement of mens rea or a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence.91 The presumption of mens rea (described in He Kaw Teh) does not ascribe (as a matter of presumption) the species of a fault element attaching to a result. As submitted by the Director, there is available to the Court a constructional choice as to the fault element. Pursuant to Brennan J’s taxonomy, the constructional choice as to the fault element applying to the result is between specific intent (including knowledge of probability of occurrence) and foresight of possibility (recklessness). The constructional choice between these options will turn on the text, context and purpose of the provision under consideration. 90 R v HBZ [2020] QCA 73 at [57] (Mullins JA, McMurdo, Boddice JJA agreeing). 91 Kural v The Queen (1987) 162 CLR 502 at 504. -- 40 of 47 -- [2025] SASCA 126 Lovell and David JJA 37 154 As outlined earlier, the broad legislative purpose for enacting s 20A was to prevent conduct described as choking, strangulation or suffocation in all its forms. Such conduct is considered to be a common feature of domestic violence and is a predictive risk-factor for escalating domestic violence, including domestic homicide. A fault element which includes recklessness is more consonant with the fulfilment of the purpose of the statute. 155 Moreover, and contrary to the appellant’s submissions, the express inclusion of recklessness as a fault element for results in some offences in the CLCA (discussed in more detail below) does not ultimately demonstrate that recklessness as to a consequence or result must be specified in a provision in order for it to suffice. Rather, the function served by the explicit references to recklessness is the demarcation of those offences from offences requiring a specific intent (where both are specified). 156 For those reasons, the text and purpose of the provision warrant the importation of recklessness as a fault element attaching to the consequence prescribed. 157 As to the third question, and the identification of the appropriate fault element which attaches to the “result”, the appellant contends that if (contrary to his other submissions) recklessness is implied as a fault element attaching to the result, the prosecution is required to prove that the accused applied force to the complainant’s neck or throat foreseeing that it was probable that the victim’s breathing would be hindered or restricted. Accordingly, the appellant contends that the trial Judge erred in directing the jury that ‘recklessness’ required foresight of the possibility that the complainant’s breathing would be hindered or restricted. 158 Recklessness, generally, is not defined in the CLCA. However, ‘recklessness’ or ‘reckless indifference’ is defined in various provisions of the CLCA. For the purposes of the offence of causing serious harm contrary to s 23, and the offence of causing harm contrary to s 24, recklessness is defined in s 21. That section provides that a person is reckless if they have an awareness of a ‘substantial risk’ that their conduct ‘could’ result in the relevant consequences and proceed despite that risk and without adequate justification. This definition appears to draw upon South Australian common law authorities as to the meaning of reckless indifference in the context of the now abolished offence of unlawful wounding which required ‘foresight of the likelihood that harm of that type would result from the act and a determination to proceed with the act notwithstanding.’92 The concept of recklessness is also defined in other provisions of the CLCA in similar terms as in s 21.93 92 R v Hoskin (1974) 9 SASR 531 at 537; Selig v Hayes (1989) 52 SASR 169 at 174–175; Laurie v Nixon (1991) 55 SASR 46 at 51–52; Gillan v Police (SA) (2004) 149 A Crim R 354 at [19] (White J). 93 For example, sections 20AA (causing harm to, or assaulting, certain emergency workers), 29A (shooting at police officers), and 32AA (discharging firearms to injure). -- 41 of 47 -- [2025] SASCA 126 Lovell and David JJA 38 159 The appellant contends that if the fault element of s 20A as to the result is satisfied by recklessness it should be construed to import the same meaning as provided in s 21. 160 In Ducaj v The Queen,94 the Court of Criminal Appeal considered the fault element of recklessness for the purposes of s 29(3) of the CLCA. That section provides that a person is guilty of an offence ‘where a person, without lawful excuse, does an act or makes an omission – knowing that the act or omission is likely to cause harm to another; and intending to cause such harm or being recklessly indifferent as to whether such harm is caused.’ Recklessness is not explicitly defined in the relevant provisions. 161 The Court held that for the purposes of s 29(3), mere advertence to the possibility of the consequence is not sufficient because the provision requires knowledge of the likelihood of the consequence. As Chief Justice Kourakis explained:95 The alternative element of recklessness, on the other hand, must be adapted to its particular context in the s 29 offences. That is because the concepts of recklessness and reckless indifference are protean. Recklessness may be used to refer to the conduct, or objective, element of an offence, in which case it generally denotes gross or criminal negligence. It is not used in that sense in s 29. Plainly enough, it is one of two alternative fault elements set out in paragraph (b) of each subsection. Alternatively, recklessness may be a fault, or subjective, element, in which case recklessness generally refers to “the unreasonable or unjustifiable taking of a risk which is known to the accused”. Recklessness, as a fault element, generally requires some, not necessarily much, foresight of the possibility or probability of the proscribed consequence. However, for the purposes of s 29 offences, mere advertence to a possibility of the consequence is not sufficient, because, as we have seen, subparagraph (a) of each of the subsections requires knowledge of the likelihood of the consequence. 162 However, consistent with the protean nature of the concept of recklessness, the Chief Justice observed that the fault element of recklessness for the offence of manslaughter is satisfied by foresight of possible consequences, as is the statutory definition of ‘reckless indifference’ provided by s 47 in relation to an offence of rape contrary to s 48 of the CLCA. 163 It is not the case that the meaning of recklessness for the purposes of s 20A is necessarily informed by the definition of recklessness or reckless indifference contained in other provisions of the CLCA. Rather, it is necessary to return to ordinary principles of statutory construction including the purpose for which the provision was enacted. 164 The High Court has provided recent guidance on whether recklessness requires foresight of the probability of the consequences contemplated for offences 94 Ducaj v The Queen (2019) 135 SASR 127. 95 Ducaj v The Queen (2019) 135 SASR 127 at [13]-[14]. -- 42 of 47 -- [2025] SASCA 126 Lovell and David JJA 39 other than statutory or common law murder, or foresight of the possibility of those consequences. 165 In R v Crabbe (‘Crabbe’),96 the High Court held that the test for recklessness for the purposes of common law murder is foresight that death or serious bodily harm is a probable consequence of the relevant conduct.97 The Court held that knowing that death or grievous bodily harm is merely possible is not sufficient.98 166 Subsequently, in R v Coleman (‘Coleman’),99 the New South Wales Court of Appeal considered whether the test for recklessness in Crabbe applied to the offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse, contrary to s 61C of the Crimes Act 1900 (NSW). In that matter, the appellant was alleged to have inserted a bottle into the complainant’s anus. The trial Judge directed the jury that the malicious infliction of injury was established if the appellant had wielded the bottle with the intention of causing some injury, such as was in fact caused, or if he did so recklessly. The trial Judge defined the concept of recklessness as a realisation of the possibility that some injury might result, but nevertheless proceeding to act. The appellant contended this was a misdirection and that a realisation of the possibility of injury is insufficient; rather, the realisation must be of the probability or likelihood of injury. The appellant relied on Crabbe in support of this contention. The New South Wales Criminal Court of Appeal dismissed the appeal and held that in relation to statutory offences other than murder, the test for recklessness to establish that an act was done ‘maliciously’ was a realisation on the part of the accused that the particular kind of harm done might, or may possibly, be inflicted yet the person nonetheless proceeded to act. Hunt J (with Finlay and Allen JJ agreeing) said:100 …The degree of reckless indifference required for the crime of murder, amounting to an act done “of malice” (or malice aforethought) is altogether of a different order to that required for lesser crimes. The contemplation by the accused of the probable consequence of death is required for murder because it has to be comparable with an intention to kill or to do grievous bodily harm. Such a test of probable consequences is by no means required in relation to lesser crimes as a matter of law, of logic, or of common sense. 167 In Aubrey v The Queen (‘Aubrey’),101 the High Court considered whether recklessness required proof that the accused foresaw the probability (rather than possibility) of his act resulting in grievous bodily harm and the correctness of Coleman. 168 In Aubrey, the appellant was charged with one count of maliciously causing the complainant to contract a grievous bodily disease contrary to s 36 of the Crimes Act 1900 (NSW) (‘Crimes Act’) and, in the alternative, one count of maliciously 96 R v Crabbe (1985) 156 CLR 464. 97 R v Crabbe (1985) 156 CLR 464 at 469. 98 R v Crabbe (1985) 156 CLR 464 at 469–470. 99 R v Coleman (1990) 19 NSWLR 467. 100 R v Coleman (1990) 19 NSWLR 467 at 476. 101 Aubrey v The Queen (2017) 260 CLR 305. -- 43 of 47 -- [2025] SASCA 126 Lovell and David JJA 40 inflicting grievous bodily harm upon the complainant contrary to s 35(1)(b) of the Crimes Act. 169 The High Court held that for the purposes of establishing that the accused acted recklessly within the meaning of s 5 of the Crimes Act, and therefore maliciously within the meaning of that section and s 35, it was sufficient for the prosecution to establish that the accused foresaw the possibility (as opposed to probability) that the act of sexual intercourse with the other person would result in the other person contracting the grievous bodily disease. The Court held that the correct standard of recklessness to apply to statutory offences other than murder is foresight of the probability of harm, approving the reasoning of Hunt J in Coleman. 170 The Court observed that at the time of Crabbe, the view taken in England, and generally in Australia, was that the degree of recklessness required to establish malice for the purposes of statutory offences other than murder was foresight of the possibility of harm and ‘…nothing said in Crabbe in relation to the degree of recklessness required any change to that.’102 171 The Court explained that ‘…the reason for requiring foresight of probability in the case of common law murder was the near moral equivalence of intention to kill or cause grievous bodily harm and the foresight of the probability of death. The same does not necessarily, if at all, apply to statutory offences other than murder.’103 It was recognised, however, that the requirements for recklessness in States other than New South Wales may vary according to the terms of each State’s legislation. 172 In Aubrey, the High Court also referred to recent decisions in England which have held that, for an accused to be convicted of recklessly causing grievous bodily harm, it is necessary to show not only that the accused foresaw the possibility of harm and proceeded nonetheless, but also that it was unreasonable for the accused to take that risk in so proceeding. The appellant in Aubrey advanced an argument that recent developments in England should lead the High Court to change the test for recklessness from a requirement of foresight of possibility to foresight of probability. The Court rejected that submission observing that ‘…the reasonableness of an act and the degree of foresight of harm required to constitute recklessness in so acting are logically connected. So much is implicit in the notion of an accused’s willingness to “run the risk” or to proceed notwithstanding a risk…’104 173 In Aubrey, the majority referred to the Victorian Court of Appeal’s decision in R v Campbell (‘Campbell’)105 as an exception to the general approach of construing statutory provisions which involved recklessness as requiring foresight of the possibility of harm. In Campbell, the Court held that for the purposes of the 102 Aubrey v The Queen (2017) 260 CLR 305 at [46] (Kiefel CJ, Keane, Nettle and Edelman JJ). 103 Aubrey v The Queen (2017) 260 CLR 305 at [47] (Kiefel CJ, Keane, Nettle and Edelman JJ). 104 Aubrey v The Queen (2017) 260 CLR 305 at [49] (Kiefel CJ, Keane, Nettle and Edelman JJ). 105 R v Campbell [1997] 2 VR 585. -- 44 of 47 -- [2025] SASCA 126 Lovell and David JJA 41 offence of reckless infliction of grievous bodily harm contrary to s 17 of the Crimes Act 1958 (Vic), the prosecution is required to establish foresight of the probability of grievous bodily harm. The Court reasoned that the principles in Crabbe applied to an offence under s 17 and relied on an earlier decision of R v Nuri106 where the Victorian Court of Appeal had applied a test of probability of foresight to the offence of recklessly engaging in conduct endangering life under s 22 of the Crimes Act 1958 (Vic). The Court held that the same test for recklessness should apply to all sections in this group of offences. 174 In Director of Public Prosecutions Reference No 1 of 2019 (‘the DPP Reference 2019’),107 the High Court considered whether Campbell was correctly decided. The majority (Gaegler, Gordon and Steward JJ, and in a separate judgment, Edelman J) declined to overrule Campbell on the basis that subsequent legislative enactment was predicated upon the Victorian Parliament accepting the correctness of Campbell. Edelman J referred to three constraining factors, namely: prior to the decision in Aubrey, the decision in Campbell could not be considered plainly wrong; the decision of Campbell informed the background for amendments to provisions and penalties in the Crimes Act 1958 (Vic); and the meaning of recklessness in Campbell has been adopted in Victorian courts for the ensuing 26 years. In a joint judgment, the minority (Kiefel CJ, Keane and Gleeson JJ) held that Campbell was wrongly decided and the test for recklessness should be corrected. It is apparent that but for the re-enactment presumption, the meaning of recklessness in the context of s 17 of the Crimes Act 1958 (Vic) would have been construed by the High Court in accordance with Aubrey. 175 We now return more directly to the question of the correct standard of recklessness to be applied to s 20A of the CLCA. While the principles enunciated in Aubrey are instructive, neither Aubrey nor Campbell were concerned with determining the mental element of a statutory offence that did not expressly state a mental element. As the High Court recognised, the principles articulated in Aubrey and DPP Reference 2019 are subject to the ordinary rules of statutory construction by reference to the text, context and purpose of s 20A. 176 As outlined earlier, the purpose for which s 20A was enacted is plain from the extrinsic materials; namely, to identify conduct meeting the description of choking, suffocating and strangling which is predictive of the escalation of domestic violence to domestic homicide, to denounce this type of offending and to deter others more generally. There is also no requirement of proof of harm under the provision which distinguishes the standalone provision s 20A from other causing harm offences and recognises the inherent dangerousness of this conduct. 177 Bearing in mind Parliament’s evident purpose for enacting s 20A, we consider there to be no principled reason to align the meaning of recklessness under s 20A with the meaning of recklessness in offences involving murder. There is no 106 R v Nuri [1990] VR 641. 107 Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177. -- 45 of 47 -- [2025] SASCA 126 Lovell and David JJA 42 moral equivalence between an intention to kill or commit grievous bodily harm and foresight of the probability of hindering or restricting a person’s breath. 178 Nor does the statutory context in which s 20A appears support such a construction. There is no reason for recklessness for the purposes of s 20A to be construed so as to import the meaning expressed in s 20AA (causing harm to emergency workers), s 29A (shooting a police officer) and s 32AA (discharging firearms to injure). Recklessness (or reckless indifference) is defined differently in relation to the offence of rape; and as discussed earlier, it is the explicit terms of the offence provisions in s 29 of the CLCA which mean that recklessness for the purpose of s 29 offences require foresight of the probability of the proscribed consequences. 179 In relation to the development of the law in England (discussed in Aubrey and DPP Reference 2019) where it has been held that it is not only necessary that the accused foresaw the possibility of harm and proceeded nonetheless, but that the risk must be unreasonable in the circumstances known to the accused, in the context of s 20A, this development does not support a test for recklessness of foresight of probability. It is difficult to envisage any situation where the risk of hindering or restricting the breath of a domestic partner was not unreasonable (not covered by the requirement that it be without lawful excuse). Such an act is generally devoid of any social utility. 180 Bearing in mind the purpose for which s 20A was enacted, and the mischief Parliament intended to remedy, and having regard to the principles enunciated in Aubrey, it is sufficient for the purposes of s 20A that the accused foresaw the possibility (as opposed to the probability) that his or her act would result in the hindering or restricting of the complainant’s breath. 181 Accordingly, the elements of an offence contrary to s 20A of the CLCA may be stated as follows: 1. The accused is, or was formerly, in a relationship with the complainant. 2. The accused deliberately engaged in conduct which ‘choked, suffocated or strangled’ the complainant (‘the physical element’). a. To choke, suffocate or strangle is to engage in conduct that hinders or restricts the breathing of the complainant; it does not require proof that the restriction upon the breathing be significant or that the breathing was completely stopped, although the restriction of the breathing would encompass the stopping of the breath. b. Choking, suffocating or strangling requires proof that the accused engaged in conduct which resulted in some detrimental effect on the breathing of the complainant because otherwise it would not constitute the act of choking. -- 46 of 47 -- [2025] SASCA 126 Lovell and David JJA 43 3. The accused deliberately engaged in conduct intending to hinder or restrict the complainant’s breath or was reckless as to whether the conduct would restrict or hinder the complainant’s breath (‘the mental element’). a. Where recklessness is invoked as the fault element, the prosecution is required to prove that the accused engaged in conduct foreseeing that it was possible (as opposed to probable) that his or her act would hinder or restrict the complainant’s breathing but continued, nonetheless. 4. The complainant did not consent to being choked, suffocated or strangled. 5. The act of choking, suffocating or strangling the complainant was done without lawful justification. 182 It follows that the trial Judge did not err in his directions to the jury as to the mental element of recklessness. 183 Even if we were of the contrary opinion, on the facts of this case, where the appellant’s case at trial was that the prosecution had not proved that he placed his forearm against the complainant’s neck, and there was no real dispute that the act (if proved) did hinder or restrict the complainant’s breathing, there was no real chance that the jury would not have been satisfied that the restriction of the complainant’s breath would have been foreseen as probable or likely but were satisfied that it was a possible consequence. There was no ambiguity in the complainant’s evidence that when the appellant placed his forearm against her neck, her breathing was restricted. Accordingly, any error was not material in the sense that it had the capacity to realistically affect the jury’s reasoning to verdict.108 Orders: We grant permission but dismiss the appeal. 108 MDP v The King [2025] HCA 24. -- 47 of 47 --