In a significant decision for domestic violence law, the NSW Court of Criminal Appeal has clarified the meaning of “intentionally chokes” under section 37(1A) of the Crimes Act 1900 (NSW). The case — GS v R and Director of Public Prosecutions v GS [2022] NSWCCA — involved appeals related to a series of domestic violence charges stemming from incidents in January 2019.

Background: Charges Against GS

GS was charged with multiple offences following alleged assaults on his former partner, JC. These included:

• Count 1: Detaining JC for advantage — Acquitted
• Count 2: Intentionally choking JC — Directed acquittal
• Additional charges: Armed intent, intimidation, property damage, and assault causing actual bodily harm (known as Sequence 4) — Convicted of the assault only

The Crown’s Appeal: Defining “Choking”

The trial judge had acquitted GS on the choking charge, finding there was no evidence of actual restriction of JC’s breathing. The Director of Public Prosecutions (DPP) appealed, arguing the law doesn’t require proof of actual interference — only that the act was capable of restricting breath or blood flow.

Court of Criminal Appeal Outcome:

• Allowed the appeal and quashed the acquittal on the choking charge.
• Clarified the law: Under s 37(1A), “intentionally chokes” means applying pressure to the neck that is capable of affecting breathing or blood circulation — actual physical restriction is not necessary.
• No retrial ordered, due to:
  • GS having already served more than his sentence
  • The delay in proceedings
  • The potential for the Crown to “patch up” its case, and
  • Fairness and proportionality concerns

GS’s Appeal Dismissed

GS appealed both his conviction and sentence related to the assault offence (Sequence 4). He raised two grounds:

Ground 1: Inconsistent Verdicts

GS argued his conviction was inconsistent with prior acquittals, suggesting a lack of credibility in the complainant’s testimony.

Court’s finding:

• The trial judge found JC credible in relation to Sequence 4.
• Evidence such as photos of bruising and police observations supported the conviction.
• No legal error was identified.

Result: Appeal dismissed.

Ground 2: Manifestly Excessive Sentence

GS argued the 20-month sentence was too harsh, citing:

• Minor bruising,
• No use of weapons,
• His significant mental health history.

Court’s response:

• GS had poor prospects of rehabilitation,
• His mental health issues did not mitigate the offence,
• The sentence was within the legal and reasonable range.

Result: Appeal dismissed.

Legal Impact: Broader Interpretation of Choking

This case is a key precedent in domestic violence law, particularly in how the term “choking” is interpreted:

• The Court rejected a narrow reading that required proof of actual interference with breath.
• Instead, the law now recognises intentional pressure capable of restricting breath or blood flow as sufficient under s 37(1A).
• The ruling reinforces the section’s purpose: to criminalise non-fatal strangulation in coercive or abusive relationships, even when physical symptoms are not visible.

Final Orders

• Acquittal on choking charge set aside.
• Definition of “intentionally chokes” clarified under NSW law.
• No retrial ordered, considering GS’s time already served and fairness concerns.
• GS’s appeal against conviction and sentence dismissed.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong-Yuan, paralegal.

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