What Does the Prosecution Need to Prove?

To establish an offence under section 20A, the prosecution must prove beyond reasonable doubt that:

1. The accused and the alleged victim were, or had previously been, in a relationship recognised by section 20A.
2. The accused engaged in conduct amounting to choking, suffocation or strangulation, with the state of mind required by law.
3. The alleged conduct occurred without the other person's consent.

For the more serious offence under section 20A(a1), the prosecution must also prove that the accused's conduct caused harm resulting in the alleged victim being rendered unconscious.

The prosecution must establish each required element of the offence. If there is reasonable doubt about an essential element, the accused must be acquitted of that charge.

What is Considered a Domestic Relationship?

The definition of a relationship under section 20A is broader than a marriage or intimate partnership.

It includes:

• Husbands, wives and domestic partners;
• Former spouses and partners;
• Certain current or former intimate personal relationships;
• Parents, children, stepchildren and grandchildren;
• Brothers and sisters;
• Other relatives by blood, marriage or adoption;
• Certain relationships recognised under Aboriginal or Torres Strait Islander kinship rules; and
• Certain ongoing care relationships.

The alleged conduct does not necessarily have to occur inside a home. The important issue is whether the parties fall within one of the relationships covered by the legislation.

What Are the Maximum Penalties for Choking, Suffocation or Strangulation?

There are two offences under section 20A:

1. Choking, Suffocation or Strangulation: Section 20A(1)

Where a person chokes, suffocates or strangles another person without consent in a relevant relationship:

• Maximum penalty: 7 years' imprisonment.

2. Choking, Suffocation or Strangulation Causing Unconsciousness: Section 20A(a1)

Where the conduct causes harm resulting in the other person being rendered unconscious:

• Maximum penalty: 10 years' imprisonment.

The more serious offence commenced on 1 May 2025 and applies to conduct occurring on or after that date.

These are maximum penalties. The actual sentence depends on the circumstances of the offence, the offender's personal circumstances and other relevant sentencing considerations.

Can I Be Charged if the Alleged Victim Has No Injuries?

Yes.

The prosecution does not have to establish that the alleged victim suffered bruising, redness, scratches or any other visible injury to prove the basic offence.

For offences committed on or after 1 May 2025, the statutory definition of choking or strangulation requires pressure to the neck capable of affecting breathing or blood flow to the head. Actual restriction of breathing or blood flow does not need to be established.

However, the absence of injuries may still be relevant to the assessment of the prosecution evidence, depending on the circumstances.

What Defences Are Available?

A person charged with choking, suffocation or strangulation may have several possible defences, depending on the evidence.

These may include:

1. The Allegation is Denied

The accused may dispute that the alleged conduct occurred or challenge the accuracy or reliability of the evidence.

2. The Conduct Does Not Satisfy the Legal Definition

The prosecution must establish conduct falling within the statutory definitions of choking, suffocation or strangulation.

3. Self-Defence

A person who acted to protect themselves or another person from unlawful violence may be able to rely on self-defence, provided the legal requirements are satisfied.

4. Consent

The accused may dispute the allegation that the conduct occurred without consent. Whether consent was freely given and legally effective will depend on the circumstances.

5. No Qualifying Relationship

If the relationship between the parties does not fall within section 20A, the prosecution may be unable to establish that offence.

6. Other Lawful Justifications or Excuses

Section 20A expressly excludes conduct that is justified or excused by law. Other criminal law defences may also arise in appropriate cases.

An experienced criminal lawyer can review the evidence and advise which defences are available in your particular circumstances.

Can I Get Bail if Charged with Choking, Suffocation or Strangulation?

Yes, although obtaining bail may be more difficult than for many other offences.

Under section 10A of the Bail Act 1985 (SA), a person charged with choking, suffocation or strangulation in a domestic setting is generally subject to a presumption against bail.

This means the accused must establish special circumstances justifying their release on bail.

If bail is granted, conditions may include restrictions on contacting the alleged victim, residing at a particular address or attending certain locations.

Our criminal lawyers can assist with preparing bail applications and representing clients at bail hearings.

What Happens if the Alleged Victim Wants to Withdraw the Charges?

The alleged victim cannot automatically withdraw criminal charges once they have been laid by police.

The decision whether to proceed with a prosecution rests with the relevant prosecuting authority.

However, a change in the alleged victim's account, or their unwillingness to give evidence, may affect the strength of the prosecution case.

A criminal lawyer can assess the available evidence and make representations to prosecution about whether the charge should proceed.

Will I Also Be Subject to an Intervention Order?

Possibly.

Where an allegation involves domestic or family violence, police may issue or apply for an intervention order against the accused.

An intervention order may prohibit contact with the protected person, require the accused to leave a residence or impose other restrictions.

An intervention order is separate from the criminal charge. Breaching an intervention order can result in further criminal charges, even if the underlying allegation is disputed.

It is important to obtain advice about both the criminal proceedings and any intervention order.

What Should I Do if I Have Been Charged?

If you have been charged with choking, suffocation or strangulation, you should obtain legal advice as soon as possible.

Before deciding how to respond to the allegation, a criminal lawyer can assist you by:

• Advising you about your rights during a police investigation or interview;
• Obtaining and reviewing the prosecution evidence;
• Identifying inconsistencies or weaknesses in the allegations;
• Advising whether a defence is available;
• Making representations to prosecution where appropriate;
• Applying for bail or a variation of bail conditions; and
• Representing you in court, whether you plead guilty or not guilty.

You should also comply strictly with any existing bail conditions or intervention orders.