Director of Public Prosecutions (NSW) v Lasuladu

Local Court of NSW|2017-05-25

Reasons for Decision

The accused Linda Khamis Lasuladu is charged with an offence of self-administer drug with intent to procure own miscarriage an offence under s 82 of the Crimes Act 1900.
Specifically the allegation is that the accused on 3 September 2015, at Toongabbie, in the State of New South Wales, being a woman with child, unlawfully administered to herself a drug, namely, misoprostol, with intent to procure her miscarriage.
The offence is one which carries a maximum penalty of 10 years imprisonment.
The matter proceeded by way of summary hearing before this Court on 25 May 2017 on which date, by agreement between the Crown and the accused's legal representative, the Crown brief of evidence was tendered and marked exhibit one in the proceedings. No prosecution witnesses were required for cross examination.
Both the Crown and defence conceded that the evidence was sufficient to establish a prima facie case in respect to the charge and after having considered the brief of evidence I formed the view that a prima facie case did indeed exist.
The only evidence given in the defence case was evidence from Dr Carol Portman, Obstetrician/Gynaecologist by way of a medical Expert statement and supplementary evidence in chief and cross examination.
I allowed Dr Portman to give evidence over objection from the Crown given the importance of the issues to be decided by the Court and on the very narrow basis that it may provide some context in relation to the current medical meanings of "abortion" and "miscarriage", which might ultimately assist the Court in deciding the legal definition of such words, given that Division 12 of Part 3 of the Crimes Act 1900 to which s 82 relates does not define those words.
In order to properly understand the final submissions made by the parties it is necessary to provide some background relative to the accused and her personal circumstances at the time of the alleged offence. It is also necessary to provide some legislative history in regard to s 82 and Division 12 of Part 3 of the Crimes Act 1900.

Background of the Accused

The accused at the time of the alleged offence in September 2015 was 28 years old and the mother of five children ranging in age from 4 years to 9 years old. In February 2015 the accused fell pregnant. She commenced attending pre-natal scans and check-ups and continued to so throughout the pregnancy. During this time the accused was in a relationship with her boyfriend Akech Lual, which had commenced in 2012. They formed a plan to marry in 2017.
At about 19 weeks into the pregnancy the accused was informed by her boyfriend Lual that he did not want her to have the child as they weren't married. The accused did not act upon this and continued to attend medical check-ups.
At about 26 weeks into the pregnancy her boyfriend again urged her to terminate the pregnancy. She told her boyfriend that it may be too late to have an abortion. She contacted a number of clinics in NSW and interstate and was refused from all of them on the basis that her pregnancy was past 20 weeks.
The accused eventually found someone she believed was in Darwin, known as "Patrick", who was prepared to facilitate a termination. She contacted Patrick through both the internet and by phone. The person Patrick told her a termination was possible up to 30 weeks and he would send her pills for the payment of $2,000.
Thereafter on 2 September 2015 she received a package originating from South Africa which contained a blister pack of ten pills each containing 200mg of misoprostol, a hormone type substance.
On the 3 September 2015 Patrick provided instructions for inducing an abortion with the misoprostol pills. Thereafter on that day she took six tablets (2 ingested orally and 4 vaginally). She began to feel unwell and was taken by a friend to Blacktown Hospital. At the hospital she presented the blister pack of misoprostol. Subsequent medical intervention disclosed that the foetus was suffering distress. An emergency caesarean section was performed and the child was born.

Background to the Provisions of Division 12 of the Crimes Act 1900

Division 12 of Part 3 of the Act provides for offences titled "Attempts to Procure Abortion" (ss 82-84).
In particular s 82 provides as follows: Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.
Section 83 provides: Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.
Section 84 provides: Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.
As can be discerned from the abovementioned sections, they differentiate between unlawful acts committed on the one hand by a woman with child (s 82), unlawful actions by another to the woman with child (s 83) and unlawful acts of supplying or procuring a drug or noxious thing, or any instrument intended to be unlawfully used with intent to procure a miscarriage (s 84).
These sections came into force upon the commencement of the Crimes Act in 1900, and in particular section 82 has not, as I understand the submissions, been subject to any statutory amendment by Parliament since. The sections speak specifically in relation to the "procurement of a miscarriage".
The heading of Division 12 however speaks specifically of "Attempts to Procure Abortion". The heading was inserted into the Crimes Act by the Statute Law (Miscellaneous Provisions) Act No. 53 of 2000, assented to on 29 June 2000.
In order to establish an offence under s 82 the prosecution must prove three essential elements beyond reasonable doubt: 1. The accused was pregnant; and 2. Unlawfully either: 1. administered to herself a drug or noxious thing; or 2. used an instrument or other means; and 1. Intended to procure her miscarriage
In the course of the proceedings the accused's legal representative conceded that the Court would be satisfied beyond reasonable doubt as to establishment by the Crown on the facts of the matter that the first and second elements are made out.
Both parties also agree that as at 3 September 2015 (the date of the alleged offence) the accused was carrying a foetus of 28 weeks of age.
The arguments ultimately advanced to the Court for consideration have therefore focused on the third element as to whether the accused intended as a consequence of the second element to procure her miscarriage.
Dr Portman, a Fellow of the Royal Australian College of Obstetrics and Gynaecology, gave evidence for the accused in relation to the medical meanings of "miscarriage" and "abortion".
She indicated that a miscarriage is considered a pregnancy loss under 20 weeks of gestation or the foetus being under 400 grams. Post 20 weeks the death of the foetus is considered to be a still birth. She further indicated that in this day and age a miscarriage is something that is a spontaneous event not a deliberate event but it is primarily in situations that are considered pre-viable and that is now 20 weeks. Viability might have changed over time but it is pre-viability that is considered a miscarriage. She stated that pre-viable means that the foetus cannot survive on its own.
Dr Portman further indicated that on her understanding of the brief of evidence that the foetus was 28 weeks old and thus a viable foetus.
As to the term "abortion" Dr Portman described this as a deliberate or induced event generally at a time when the foetus is expected to die as a result of the event. The term "abortion" has been used in the past to include pregnancy losses that were also spontaneous and so they would usually have a pre-fix such as "spontaneous abortion", which in these days is considered to be a miscarriage that happens by itself under 20 weeks; and then you have a missed abortion, which is called a missed miscarriage, where the foetus passes away under 20 weeks but hasn't actually come out by itself.
In cross examination Dr Portman was asked about her understanding of the drug misoprostol and it having an anti abortifacient effect. She agreed that is the case. When further questioned she agreed that this drug when taken does not discriminate between ages of a foetus and when taken regardless of the stage of the pregnancy brings on labour and can lead to the death of the foetus or baby.

The Parties' Arguments

The Crown argues that in relation to the element in question that the Court need only be satisfied of the accused's 'intention to procure' the said miscarriage and submits that this is clearly made out on the evidence. The Crown highlighted that there is no guiding authority in this jurisdiction relative to the question in issue, however referred the Court to the decision in R v Spicer (1955) 39 Cr App R 189. In that case the Court considered circumstances where an accused attempted to procure a miscarriage in a woman by manual manipulation of the foetus in the woman's womb. A miscarriage did not occur at that time but some ten days later following the procedure. The accused in that matter was convicted.
Finnemore J directed the jury in the following manner: Whether this act does or does not produce a miscarriage does not matter. The question is what did he intend to do when he did the acts.
The Crown says that in the current proceedings "the outcome or the ability to achieve the desired outcome is not a relevant consideration". What is relevant are the actions and words of the accused that make clear her intention by taking the misoprostol pills.
The Crown contends that there is ample evidence in the brief to satisfy the intention to procure.
The Crown further submits that as the words "miscarriage" and "abortion" are not defined within the Crimes Act 1900 then the words should be taken on their ordinary and current meaning and that dictionaries are useful in that regard, citing the decision in Manly Council v Malouf t/as Fusion Point (2004) 61 NSWLR 394 at [8].
The Crown also referred to the statement of Lord Coleridge in R v Peters (1886) 16 QBD 636 at 641: I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense and we are therefore sent for instruction to these books.
The same was cited by Beazley ACJ in the decision of Norrie v New South Wales Births Deaths and Marriages [2013] NSWCA 145 at [84].
The Crown also referred to the "purposive approach" to statutory interpretation and the NSW Interpretation Act 1987. The Crown says that prior to the commencement of the Interpretation Act the common law "purposive approach" to legislation was applied. Within this was a consideration of the so-called mischief rule. The mischief rule referred to the decision in Heydon's Case (1584) 3 Co Rep 7a at 7b, where the Court defined an approach for the "sure and true interpretation of statutes in general" and for consideration of the "mischief" for which it was intended to deal with and by adopting an interpretation of the words that was consistent with than purpose.
Further reliance was made by the Crown on s 33 of the Interpretation Act which states: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
Further, reliance was also placed on s 35 of the Interpretation Act and the use of the word "abortion" in the heading to the Division.
Ultimately the Crown submits that in using the words "miscarriage" and "abortion" in the statutory provision, it was not the intention of Parliament under Division 12 of Part 3 of the Crimes Act to only regulate unlawful conduct relating to miscarriages as being prior to the non-viable gestation period. The purpose and intent of the section being to protect the safety and health of all unborn children in the womb from unlawful termination of the pregnancy at all stages of a pregnancy from conception to birth, not only at a particular stage.
In support of its argument the Crown tendered excerpts from the Oxford English Dictionary and the Macquarie Dictionary as to the meaning of the terms "miscarriage" and "abortion". The defence took no issue with this.
The Oxford Dictionary defines a "miscarriage" as: The spontaneous expulsion of a foetus from the womb before it is able to survive independently.
The Macquarie Dictionary defines it as: The premature expulsion of a foetus from the uterus, especially before it is viable.
The Oxford Dictionary defines "abortion" as: 1. The deliberate termination of a human pregnancy. 2. The natural expulsion of a foetus from the womb before it is able to survive independently.
The Macquarie Dictionary defines the same as: a. the removal of a foetus from the mother's womb before it is viable. b. Also spontaneous abortion, the involuntary expulsion of a foetus before it is viable.
The accused argues that by way of medical definition a miscarriage in relation to pregnancy is a circumstances which occurs when the foetus is 20 weeks or under and that the foetus is non-viable, that is to say, not able to survive outside the womb independently.
In support of that contention the accused relies upon the evidence of Dr Portman in these proceedings.

Consideration of the Arguments

Before determining the issues advanced by the parties. I pause to note the following. The ongoing debate regarding pro- and anti-abortion is a polarising issue within the community.
It is not the role of this Court or for me to express views either away about contentious community issues or to determine matters based on a personal viewpoint. My function is to interpret the law where necessary and to apply that law to the given facts of a particular case based upon the statute as intended by parliament on behalf of the whole community.
The resolution of this matter rests upon what ultimately is defined at law as either a miscarriage or an abortion to satisfy the third element of the offence. I accept the proposition that this calls for the Court to embark upon an exercise of statutory interpretation in the absence of either a definition within the legislation or binding legal authority.
The starting point of course is to consider the ordinary meaning of the words to be found in in both the Oxford English Dictionary and the Macquarie Dictionary which define the meaning of the word miscarriage as "the spontaneous expulsion of a foetus from the womb before it is able to survive independently" and for the word abortion "the deliberate termination of a pregnancy". It is to be noted that the Macquarie Dictionary whilst using slightly different words is not dissimilar in its meaning of the terms.
To the extent necessary I would conclude that those definitions apply to an offence under section 82 of the Crimes Act, and indeed where also referred to in sections 83 and 84 of the Act.
That said however I am not of the view that the issues raised by the accused as to whether the foetus is pre-viable or viable has relevance in relation to the offence. In considering that one needs to consider the purposive intent or object of the section. In other words, what was or still remains as the intention of Parliament in enacting the section?
In my view the clear intent of the Parliament was to enact provisions which would hold persons criminally responsible for unlawful acts towards a foetus causing either a miscarriage or an abortion to occur. In essence, protection for a foetus from the time of conception through all stages of pregnancy to the point of birth.
Recourse is also had to s 33 of the Interpretation Act which supports the proposition that an interpretative construction of an Act or statutory rule should be done in such a way which promotes the underlying purpose or object of an Act or statutory rule, as opposed to a construction which would not promote that purpose or object.
In my view the delineation of the term miscarriage by reference to categories of pre-viable and viable, if the defence argument is accepted, would produce the absurd notion that it is illegal to unlawfully procure a miscarriage when a foetus is pre-viable but legal to unlawfully do so when the foetus is viable. It is not my view that this was the intent of the legislature in enacting the provision.
Whilst Dr Portman's evidence is illuminating in respect to current medical definitions by which it can be seen that there a number of sub-categories for the terms miscarriage and abortion, to accept that evidence as definitive in a legal sense as to what the intention of Parliament was and is only adds further uncertainty.
Further, in rejection of that evidence I have had regard to the decision in Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at [32] where Hill J stated: It is well established at common law that Courts will refuse to admit evidence for the purpose of interpreting a word used in a statute in accordance with its ordinary meaning.
In my view the terms miscarriage and abortion in this case should be read as being terms referable in their ordinary sense to the termination of a pregnancy which may occur either naturally or unnaturally, legally or illegally, governed by its particular factual circumstance.
The overriding import of Division 12 of Part 3 of the Crimes Act which incorporates s 82, 83 and 84 in my view is thus to render it illegal to unlawfully terminate a pregnancy by either means of an abortion or a miscarriage. Noting that as held in CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 applying R v Wald (1971) 3 DCR (NSW) 25 and the decision in R v Sood [2006] NSWSC 762 as they relate to the lawfulness of an abortion in certain factual situations.
Of course I also note that there will be many circumstances in which a miscarriage will tragically occur during the course of a pregnancy by natural means. The current matter is of course not such a circumstance. Simply put the actions of the accused were intended to bring about the unlawful termination of her pregnancy.
The clear fact is that had Parliament intended for there to be time periods during which an offence is or is not committed during a pregnancy then the Parliament would have defined that in the Act or at the very least amended the Act to reflect that position. Given that Parliament has not done so throughout the last 117 years of the provision being in force to my mind speaks to the intention that the offence is designed to cover all stages of a pregnancy.
During the course of argument the accused's legal representative raised the issue that "the way the section is drafted causes problems because a miscarriage seems to be the spontaneous thing or event which occurs resulting in the foetus not surviving". I don't ascribe to that view. The section in my view is directed towards an unlawful activity which procures an event of either a miscarriage or an abortion and it makes no difference whether the foetus survives independently or not outside the womb.
In R v Sood [2006] NSWSC 1141 Simpson J dealing with an offence under s 83 of the Crimes Act (offences relating to the unlawful administration of a drug by another person to a woman to procure a miscarriage) said at paragraph [32]: The offence of unlawful administration was completed when Ms Sood inserted a tablet into LT's vagina.
On the facts of the current matter the offence with which Ms Lasuladu has been charged under the provisions of s 82 was completed at the point where she both ingested the misoprostal tablets and also inserted them in her vagina with the clear intent to procure a miscarriage.
As a consequence of the foregoing I am satisfied beyond reasonable doubt that the accused in respect to the third element of the offence acted with intent to procure her own miscarriage that being to bring about a spontaneous expulsion of the foetus from her womb having taken the drug misoprostal.
I accept having read the Crown brief of evidence in the matter that the amended statement of facts outlined in pages 1 to 3 of the Crown tender bundle are the facts which the Court would find proved beyond reasonable doubt for the purposes of sentence.
I will hear the parties as to sentence. Magistrate G Hiatt Blacktown Local Court 5 July 2017

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Judgment (6 paragraphs)

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