R v Schwenke (No.2) [2021] NSWDC 248

R v Schwenke (No.2) [2021] NSWDC 248

On the proper construction of 'choke' in s 37(1A), the term encompasses hindering or restricting a person's breathing, not necessarily stopping it entirely. However, evidence did not establish that the complainant's breathing was hindered or restricted; thus, the essential element of the offence was not proven. A directed verdict of acquittal is required.

Jurisdiction
Australia
Judgment Date
10 June 2021
Procedural Posture
Criminal / Application for Directed Verdict After Close of Defendant's Case
Outcome
Directed acquittal on count 2
Legal Topics
['directed Verdict' 'offences Against the Person' 'domestic Violence' 'statutory Interpretation' 'choke or Strangulation Offences']
['criminal Law'] ['directed Verdict' 'offences Against the Person' 'domestic Violence' 'statutory Interpretation' 'choke or Strangulation Offences']

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Procedural Posture

Criminal / Application for Directed Verdict After Close of Defendant's Case

Legal Issues

  1. 1 ["What is the meaning of 'chokes' in s 37(1A) of the Crimes Act 1900 (NSW)?" 'Is there sufficient evidence to sustain a guilty verdict on count 2 of the indictment?']

Ratio Decidendi

On the proper construction of 'choke' in s 37(1A), the term encompasses hindering or restricting a person's breathing, not necessarily stopping it entirely. However, evidence did not establish that the complainant's breathing was hindered or restricted; thus, the essential element of the offence was not proven. A directed verdict of acquittal is required.

Court Disposition

Directed acquittal on count 2

Orders

  • ['Jury directed to acquit the accused on count 2']