In Queensland, you can be charged for choking, suffocation or strangulation in a domestic setting under section 315A of the Criminal Code Act 1899.
To satisfy the elements of choking, suffocation or strangulation, prosecution must prove beyond a reasonable doubt that you:
1. Had intention; and
2. Choked, suffocated or strangled; and
3. The act was unlawful (without the other persons consent or no lawful excuse or defence); and
4. In a domestic relationship with the other person; or
5. The act of choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.
1. Did you choke, suffocate or strangle another person intentionally
Intention is an important element to establish that this offence occurred. Intention means that your aim or goal was to do that thing. Intention under this act is in relation to your intention to choke, suffocate or strangle the other person, not in relation to your intention to restrict or hinder their breathing or kill them. Even if it wasn’t your intention to restrict or hinder their breathing, make them become unconscious or kill them, you can be still be charged for this offence as the act has already been done.
2. Definition of choking, suffocation and strangulation
The act of choking, suffocation or strangulation constitutes of hindering, restricting or stopping the breathing of that person, even if it is for a second. They do not have to completely stop breathing for it to constitute as the act. This was defined in the case of R v HBZ  QCA 73. This element of the act itself can be satisfied even if you touch the other persons neck momentarily.
3. The act was unlawful
The definition of unlawful means that it is not permitted by rules or law, which makes something illegal. The act is deemed to be unlawful if you did not get consent of the other person to do the act, do not have a defence or a lawful excuse.
Consent by definition means to give someone permission to do something. If the other person gave you consent to choke, suffocate or strangle them, then a crime has not been committed. However, consent must be given freely and voluntarily, otherwise consent has not been given.
It can be difficult to prove that consent was given if the act occurred in a closed setting. Despite this, it is an important element that must be proven beyond a reasonable doubt by the prosecution.
It is important to be aware that consent can also be withdrawn. If the other person initially gave consent then withdrew their consent, you must stop the act, otherwise you can be charged with this offence.
Self defence is a defence that can be raised, if applicable in your circumstances. An example of this would be if someone stated that they were going to kill you and attempted to do so, then you strangled them to save yourself.
Provocation is a defence that cannot be raised with this charge.
Beyond a reasonable doubt
In criminal law, beyond a reasonable doubt is the legal burden of proof that must be proven by satisfying the elements of the offence to establish that you have committed an offence. The burden of proof is on the prosecution to prove the elements of the offence beyond a reasonable doubt.
In the criminal law system, you are presumed to be innocent until proven guilty at law. To be proven guilty, you can either plead guilty or plead not guilty and have a trial whereby, at trial if you are found guilty, then you must be found guilty beyond a reasonable doubt.
Penalties for choking, suffocation or strangulation
If you are charged with this offence, the maximum penalty is 7 years imprisonment. If you plead guilty to this offence or are found guilty of this offence at trial, you may serve a term of imprisonment.
Domestic Violence Orders in response to choking, suffocation or strangulation
Domestic Violence under the Domestic and Family Violence Protection Act 2012
The Domestic and Family Violence Protection Act 2012 was introduced in Queensland to provide protection to victims in domestic and family violence.
Under the Domestic and Family Violence Protection Act 2012, the act of choking, suffocating or strangulation constitutes as an act of domestic violence. Domestic violence does not only refer to physical abuse, but also sexual abuse, emotion or psychological abuse, economical abuse, threats, coercive behaviour or controlling or dominating the other person and causes them to fear for their safety and wellbeing of themselves or someone else (Section 8 of Domestic and Family Violence Protection Act 2012).
If you commit an act of domestic violence such as choking, suffocating or strangulation, police can put forward an application to the Court for a temporary Protection Order, also known as a Domestic Violence Order. You may be served a copy of a Police Protection Notice before the temporary or final Order is made. If you are served with this notice, you must comply with this notice, otherwise you may be charged for breaching this notice under section 178 of the Domestic and Family Violence Protection Act 2012. The penalty for breaching this notice is 120 penalty units or 3 years imprisonment.
If a Temporary Protection Order or final Order is granted, then you must comply with the directions of the Order otherwise you can be charged with breaching the Order. The Order is a civil court order and does not go on your criminal history however, if you breach the Order, you will be criminally charged.
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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.