4.21In Chapter 3, we described the way that strangulation in family violence circumstances is currently prosecuted. Through that examination, we have identified a number of impediments to holding perpetrators of strangulation adequately accountable. First, there can be difficulty in proving the elements of the more serious violent offences when the offending behaviour is strangulation. Second, even when the elements of the offence can be made out, Police sometimes do not prosecute or, if they do, only lay a relatively minor charge. We examine each of these issues in turn.
4.23In the case of other significant assaults, there will be visible signs such as bruising, swelling or abrasions. The Police will photograph the signs and place the photos on the record as evidence. That will also occur when strangulation results in visible signs on the neck. However, as we describe in Chapter 2, it is very common for there to be no visible signs, even when the strangulation has been serious. When that is the case and testimony from the victim or a witness is unavailable or insufficient, a medical examination will be required to document less obvious external physical signs (such as petechiae), internal signs and symptoms (such as internal bruising or symptoms of a loss of consciousness), or psychiatric or psychological symptoms (such as amnesia or confusion).
4.24A medical examination documenting all the signs and symptoms can be compelling evidence that strangulation occurred, prompting the defendant to plead guilty to the strangulation, even when there are few visible signs. However, medical examinations are not automatically arranged for victims who report that they have been strangled. In serious cases, the Police may direct a victim to a doctor specialising in family violence cases. However, such specialists are rare, and more usually, the victim will need to obtain her own assessment from her general practitioner, if she has one. It can require fortitude and determination to find a doctor, retell the story and submit to medical examination.
4.25We have been told that doctors who do not specialise in family violence or forensic medicine can be reluctant to become involved in assault cases for a number of reasons. They may feel that they lack the forensic expertise required to assess the patient for the purposes of a prosecution, they may be busy and consider that their priorities are to treat pressing medical issues rather than provide evidence for the justice process, or they may consider that they cannot afford the time required to present evidence to the court.
Victims of domestic assault are not usually gifted with large amounts of self-confidence. The courage it takes to report an assault of this kind to the Police is considerable. Facing the prospect of further disclosure to a doctor unknown to the victim further taxes any slim reserves of nerve.
4.27The HDC was also concerned and published an opinion for the education of doctors on their obligations when a victim of assault presents for assessment. He said that, at a minimum, patients should expect an initial assessment by a doctor to determine the extent of the injuries, both physical and psychological. If the doctor feels unable to undertake a forensic assessment, the doctor should provide the victim with information about other options in the region for the forensic documentation of injuries.
4.30The harms of “wounding” and “injury” are not particularly well suited to prosecuting serious strangulation offending due to the difficulty proving injuries that are difficult to see, internal or psychiatric, but also for another reason. The unique harm resulting from strangulation is not the wounding or injury, but rather terror—the psychological impact that occurs when an abuser has limited the victim’s ability to breathe or the blood flow to the brain by squeezing the neck. It is the intimidation, control and coercion that the abuser has as a result of demonstrating to the victim that the abuser could kill the victim in this way. These harms are not captured by the terms “wounding” or “injury”.
4.34There can be two types of mens rea element—the intention to do the actus reus (basic intent) and any other specific intent or motive included in the offence provision (ulterior intent). The more serious violent offences in the Crimes Act generally require an ulterior intent element as well as the basic intent. Examples of the ulterior intent are:
… intention is rarely found from direct evidence such as a statement by the defendant that he intended to cause really serious harm. … Usually, proof of intention rests on circumstantial evidence, including the overt acts and utterances of the defendant before, at, or after the event, the surrounding circumstances, and the nature of the act itself.
4.36For example, if a wound is inflicted with a knife, it is inferred that the perpetrator intended to wound. That does not, in practice, need to be expressly demonstrated—proof of intent to wound is implicit from the use of a knife. However, in the case of strangulation, often the hands are used, so it is harder to infer that wounding or injury was intended.
4.37Also, the particular intent elements described in these offences are often not relevant in strangulation offences occurring in family violence circumstances. The perpetrator’s intention may be to intimidate, control or coerce the victim rather than to wound, injure or commit another offence. The current offences against the person do not provide for that type of criminal intention.
4.38There are a number of other offences that may, in theory, be relevant to strangulation but that do not require proof of harm or ulterior intent. However, these also present problems for prosecutors for various reasons.
Every one is liable to imprisonment for a term not exceeding 5 years who,—
(a) in assaulting any person, uses any thing as a weapon; or
(b) while assaulting any person, has any thing with him or her in circumstances that prima facie show an intention to use it as a weapon.
Every one is liable to imprisonment for a term not exceeding 5 years who, wilfully and without lawful justification or excuse, stupefies or renders unconscious any other person.
4.42This offence is rarely prosecuted, and most of the cases relate to stupefaction of the victim by drugs or alcohol rather than force applied to the neck. In relation to strangulation, it is only relevant to those cases that resulted in a loss of consciousness. However, even in those cases, there are some significant hurdles for the prosecution to overcome. First, as with other kinds of internal injury, a loss of consciousness can be very difficult to prove. Although a doctor trained in forensic medicine may detect signs of lack of blood or oxygen supply to the brain, such as petechiae, it will be a rare case that has the benefit of such a doctor’s assessment.
(1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he or she knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.
4.46The culpability targeted by criminal nuisance is risk-taking behaviour rather than behaviour resulting in harm. This could be particularly suitable for strangulation, which is risky but any harm is difficult to prove. However, it carries a maximum penalty of only one year’s imprisonment, less than “male assaults female”, and requires proof that the offender knew the act of strangling would endanger life.
4.47To our knowledge, “criminal nuisance” has never been charged in respect of strangulation. Behaviour charged under this offence includes:
4.49There are two elements that must be proved for an attempted murder charge—that there was an intention to kill the person and that some act was done for the purpose of achieving that intention. The second element is relatively straightforward. Being a very serious offence, attempted murder is only likely to be charged if the strangulation was particularly serious. Those will be cases in which there is clear evidence of strangulation either from clear marks on the neck, witness statements or a confession of strangulation by the perpetrator.
4.50The ability of the prosecution to prove the first element—the intention to kill the victim—will depend upon the circumstances of the case. If hands are used to strangle, it will be less likely that an intention to kill can be inferred. If, however, the strangulation is merely one aspect of the violence inflicted on the victim during the incident, an intention to kill may be able to be inferred from those other aspects.
4.51However, when strangulation is the sole or main form of violence inflicted on the victim, it may be very difficult for the prosecution to show that the perpetrator intended to kill the victim.
4.52Although we have shown that there are significant problems in using the current offences in the Crimes Act to prosecute people who strangle in family violence circumstances, Police charging and prosecuting practices are also an impediment to holding the perpetrators of strangulation adequately accountable. Family violence incidents are sometimes recorded on NIA as “no offence disclosed” even when the victim has clearly alleged that strangulation occurred. Strangulation is sometimes not charged at all, even when it appears the elements of a “male assaults female” charge can be proved. More serious strangulations are charged merely as “male assaults female”, even when it is likely that, if the victim was directed to a medical assessment, sufficient evidence of strangulation would be collected. We have encountered suggestions that:
4.53There are many reasons why these practices develop. At the top of the list is the fact that family violence call-outs can be extremely complicated and challenging. The participants may be heavily intoxicated, they may both have inflicted injuries on each other, their stories may not make sense or conflict with each other, and there may be no corroborating evidence and no witnesses. There will sometimes be problems with inadequate Police resources.
4.54The difficulties faced by Police in determining the facts and making decisions in these circumstances should not be underestimated. Training and experience as well as strong protocols and practice standards play a vital role. We have reached the conclusion that, while there are many examples of excellent Police practice in family violence, there is room for improvement in relation to strangulation in three areas: