Director of Public Prosecutions (NSW) v Lasuladu

Reasons for Decision

1. 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.
2. 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.
3. The offence is one which carries a maximum penalty of 10 years imprisonment.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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

1. Division 12 of Part 3 of the Act provides for offences titled "Attempts to Procure Abortion" (ss 82-84).
2. 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.
3. 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.
4. 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.
5. 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).
6. 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".
7. 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.
8. 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

The Parties' Arguments

1. 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.
2. 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.
3. 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.
4. The Crown contends that there is ample evidence in the brief to satisfy the intention to procure.
5. 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].
6. 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.
7. 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].
8. 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.

Consideration of the Arguments

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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?
7. 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.

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