Not Guilty: Two Charges of Intentionally Choking Without Consent

‍

Case Overview

Our client, Mr Smith, was charged with two counts of intentionally choking, suffocating or strangling another person without consent, contrary to section 37(1A) of the Crimes Act 1900 (NSW). Each charge carried a maximum penalty of 5 years’ imprisonment and was listed as a Table 1 offence. Police alleged both incidents occurred at the couple’s home during domestic arguments in April 2025.

The allegations were serious and, if proven, could have resulted in a criminal conviction, imprisonment, and long-term immigration consequences.

Mr Smith denied the allegations entirely.

‍

Police Allegations

Police alleged that between 7 April 2025 and 20 April 2025, at the couple’s residence, Mr Smith twice intentionally choked his wife, Ms Daisy, during domestic arguments.

• First Incident: Police claimed that the first alleged choking occurred while Ms Daisy was cooking dinner. It was alleged that Mr Smith became angry over noise from the kitchen, approached her, and grabbed her neck for approximately 30 seconds, leaving red marks around her throat. The complainant later photographed these marks.
• Second Incident: The second alleged incident reportedly occurred thirteen days later, after the accused allegedly saw a message pop up on his wife’s phone. Police alleged that he accused her of cheating and again grabbed her neck, briefly restricting her breathing. The complainant allegedly photographed red marks following this incident as well.
• Reporting to Police: Ms Daisy reportedly attended her local Police Station to make a formal complaint, assisted by a friend acting as an interpreter and support person. Based on her statement, Mr Smith was arrested, charged with two counts of intentionally choking without consent, and served with an Apprehended Domestic Violence Order (ADVO). He declined to participate in an electronically recorded interview.

‍

What the Prosecution Needed to Prove

To secure a conviction, the prosecution had to prove beyond reasonable doubt that:

• Mr Smith intentionally choked, suffocated, or strangled another person;
• The act was done without consent; and
• The act was intentional, not accidental.

‍

Defence Strategy

Mr Smith consistently denied both allegations, asserting they were fabricated amid ongoing visa and family law disputes. Our defence team gathered key evidence to challenge the prosecution, including:

• Text Messages: Exchanges around the alleged incident dates showed normal, friendly communication inconsistent with violence.
• Photo Metadata & Authenticity: Analysis raised doubts over the timing and creation of alleged injury photos.
• Character Evidence: Statements highlighted Mr Smith’s good character and lack of propensity for violence.

‍

The Defended Hearing

The case proceeded to a Local Court defended hearing. The prosecution relied mainly on the complainant’s statement and photos, with no medical records or independent witnesses. During cross-examination, inconsistencies in the complainant’s evidence emerged:

• Conflicting accounts of when photos were taken;
• Inconsistent descriptions of the alleged actions;
• Inability to recall key details like reporting dates and event sequence;
• No explanation for affectionate text messages sent after the first alleged incident.

In contrast, Mr Smith’s testimony was calm, detailed, and consistent. Documentary evidence, including messages and digital records, supported his account and contradicted the prosecution’s timeline.

‍

Outcome

The Magistrate noted that the complainant appeared sincere and believed something may have happened. However, based on the defence evidence—including text messages, metadata, and character references—the court found that the prosecution could not prove the allegations beyond reasonable doubt.

Mr Smith’s consistent and detailed evidence, supported by contemporaneous records, undermined the prosecution’s timeline and narrative. In the end, both charges were dismissed, and Mr Smith was found not guilty.

‍

Key Takeaways

• Credibility is critical in domestic violence and choking cases, particularly when physical evidence is limited.
• Objective evidence like message histories, metadata, and third-party corroboration can decisively challenge fabricated claims.
• Thorough cross-examination exposing inconsistencies can fundamentally weaken a prosecution case.
• The presumption of innocence and high standard of proof protect against wrongful convictions.

‍

Protect Your Rights Against Domestic Violence Allegations in NSW

Facing charges like domestic violence, choking, or assault can have serious legal and personal consequences. Brightstone Defence offers experienced criminal lawyers who will guide you through the legal process, challenge weak evidence, and provide a strong, tailored defence to protect your rights and future. Speak to us today for confidential advice.