Domestic violence experts have raised concerns about a potential “loophole” in Queensland’s non-lethal strangulation laws, after a man argued in court he had not restricted a woman’s breathing when he executed a chokehold designed to cut off the blood flow to her brain.
The state made choking and strangulation a standalone offence in 2016, saying at the time that the act was “a pivotal moment that reveals an escalation in the seriousness of the violence committed against a person”. Research shows that domestic victims of non-lethal strangulation are seven times more likely to be subsequently killed.
But the laws were introduced without a statutory definition of the offence written into the criminal code. In 2020 the court of appeal published an interpretation of choking, which said the act is not proven “unless there is some detrimental effect on the breathing of the victim”.
In a recent case, detailed by the court of appeal, a man argued that he was not guilty of choking after he had performed a “carotid artery restraint” on a woman, with whom he had an intimate relationship. The accused pleaded not guilty at trial to one count of choking in a domestic setting, saying he acted in self defence.
The man, who cannot be named under Queensland law, claimed he was a black belt at martial arts and that he “knew exactly what he was doing” when he executed the front-facing carotid artery chokehold on the woman, which restricted her blood flow and caused her to start losing consciousness.
“As a highly trained martial artist, I’m very competent at putting people to the ground, so I did so in a safe and controlled way,” he told his trial.
“The floor was carpeted, so there was no risk of her striking her head on the ground. And once I put her on the ground, there was a solid backing behind her, I was able to execute a carotid artery restraint.”
The woman and a neighbour gave evidence that the man, who the court heard had consumed a third of a bottle of whisky at the time, had made a threat to kill her.
At trial, the jury was directed that they needed to be satisfied that the woman lost consciousness due to restricted breathing. They ultimately found him guilty of choking, having rejected his account of the incident.
But Heather Douglas, a professor of law at the University of Melbourne, said the situation highlighted the fact that “blood chokes” – or chokeholds that restrict circulation, rather than breathing – were not covered by the non-lethal strangulation laws.
She said the potential “loophole” could be closed by a statutory definition. Western Australia’s definition of strangulation includes the act of “applying pressure to the front or sides of a person’s neck” and Victoria plans to introduce a non-fatal strangulation bill with a similar definition this year.
Speaking generally, Douglas said strangulation was “a red flag for fatality” and that chokeholds designed to cut off circulation were dangerous.
“Whatever way you’re being made unconscious by these neck holds, they’re not safe,” she said.
“Stopping someone in this way is a demonstration of your ability to control someone. You literally hold the person’s life in your hands.”
Queensland attorney general Yvette D’ath was contacted for comment.
The man appealed against his conviction on two grounds.
The first, claiming that the verdict was unreasonable because there was “no clear evidence of restricted breathing”, was dismissed by the appeal court. It found that the verdict was “not unreasonable” and that it was open to the jury to find him guilty beyond a reasonable doubt.
The court found in favour of the man on the second ground of appeal – and ordered a retrial – on the basis he had been “deprived … a fair chance of acquittal” because the trial judge failed to properly direct the jury in relation to a possible defence of self-defence.
• In Australia, the national family violence counselling service is on 1800 737 732. In the UK, call the national domestic abuse helpline on 0808 2000 247, or visit Women’s Aid. In the US, the domestic violence hotline is 1-800-799-SAFE (7233). Other international helplines may be found via www.befrienders.org.
