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Section 37 Crimes Act 1900 (NSW) deals with the offence of Choking, suffocation and strangulation. Choking is defined as ” severe difficulty in breathing because of a constricted or obstructed throat or lack of air”. Suffocation on the other hand is defined as “have or cause to have difficulty in breathing”. While, strangulation means to “squeeze or constrict the neck”.
If the accused is charged under section 37(1) Crimes Act 1900 (NSW) then the prosecution must prove that:
a) The accused intentionally choked, suffocated or strangled the alleged victim (or attempted to); and
b) While doing the above, the accused turned their mind to the possibility of rendering the alleged victim unconscious, insensible or incapable of resisting; and
c) The alleged victim was rendered unconscious, insensible or incapable of resisting.
In December 2018, the Crimes Act 1900 (NSW) was amended to include section 37(1A) Crimes Act 1900 (NSW) which states that a person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person’s consent. An increase in the number of domestic homicides and the difficulty in proving the elements of section 37 above was cited by the New South Wales Government in introducing the amendments.
Under section 37(1A) Crimes Act 1900 (NSW) the Prosecution needs to prove that:
a. The accused intentionally choked, suffocated or strangled the alleged victim.
The Prosecution need not prove that the accused’s actions were intended to render the complaint unconscious, insensible or incapable of resistance. Therefore, the amendment has made it easier to prove the offence of choking.
The maximum penalty prescribed for choking, suffocation or strangulation under section 37 (1A) Crimes Act 1900 (NSW) is imprisonment for 5 years. While an offence under section (1) Crimes Act 1900 (NSW) attracts a maximum penalty of 10 years imprisonment.
If the offence of choking, suffocating or strangulating is committed with an intention to commit another indictable offence, then the maximum penalty prescribed is imprisonment for 25 years.
However, it must be noted that the maximum penalty will only apply in the most serious of cases.
The offence falls under Table 1 of Schedule 1 of the Criminal Procedure Act 1986 (NSW). When the offence is dealt with summarily, it is heard in the Local Court before a Magistrate, however, if the prosecution elects to proceed on indictment the matter is dealt with in the District Court before a Judge and a Jury.
The maximum penalty prescribed for choking, suffocation or strangulation under section 37 (1A) Crimes Act 1900 (NSW) is imprisonment for 5 years. While an offence under section (1) Crimes Act 1900 (NSW) attracts a maximum penalty of 10 years imprisonment.
If the offence of choking, suffocating or strangulating is committed with an intention to commit another indictable offence, then the maximum penalty prescribed is imprisonment for 25 years.
However, it must be noted that the maximum penalty will only apply in the most serious of cases.
The offence falls under Table 1 of Schedule 1 of the Criminal Procedure Act 1986 (NSW). When the offence is dealt with summarily, it is heard in the Local Court before a Magistrate, however, if the prosecution elects to proceed on indictment the matter is dealt with in the District Court before a Judge and a Jury.
Self-Defence, Necessity and Duress are the most common defences available for the crime of choking, suffocation, and strangulation.
If you have been charged with a criminal offence, you are innocent until proven guilty beyond reasonable doubt. The jury/Judge or Magistrate will review all the available evidence and circumstances of the case and make a determination that you have been guilty of an offence. This concept was discussed by his Honour of Dixon CJ in Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 242 where he said:
“All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged”.
The prosecution bear the onus to eliminate any doubt before a guilty verdict can be returned.
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