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12
Court of Criminal Appeal 19 December 2003

REGINA v KING

[2003] NSWCCA 399

Also reported as (2003) 59 NSWLR 472 139 A Crim R 132
Assault & violence
CRIMINAL LAW DEATH OF FOETUS

Citation: Regina v King [2003] NSWCCA 399
Court: NSW Court of Criminal Appeal
Date: 19 December 2003
Judges: Spigelman CJ, Dunford J, Adams J

Background

The respondent assaulted his pregnant partner after she refused to terminate her pregnancy. The assault included repeatedly kicking and stomping on her stomach. The foetus, which was between 23 and 24 weeks' gestation, was delivered stillborn three days later. Medical evidence indicated the foetus died from placental abruption and subsequent blood loss caused by the attack.

The respondent was charged under s 33 of the Crimes Act 1900 with intentionally inflicting grievous bodily harm, with the Crown relying on the death of the foetus and the placental abruption as the particulars of grievous bodily harm to the mother. The Crown did not rely on any other injuries the mother sustained. The respondent was also charged in the alternative with procuring a miscarriage under s 83 of the same Act.

At trial, Judge Tupman DCJ permanently stayed the s 33 count, finding that the charge was "doomed to failure" because the Crown's particulars could not constitute grievous bodily harm to the mother as a matter of law. The Crown appealed to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether a permanent stay order is an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912, making it subject to Crown appeal
  • Whether the Crown's prosecution of the appeal amounted to an abuse of process
  • Whether the death of a foetus is capable of constituting grievous bodily harm to the pregnant mother under s 33 of the Crimes Act 1900
  • Whether a certificate under the Suitors' Fund Act 1951 was appropriate for the unsuccessful respondent

Decision

The Court held that a permanent stay is an interlocutory judgment or order for the purposes of s 5F, relying on legislative history and prior authority. The Court also rejected the argument that the appeal was an abuse of process, noting that the Crown's alternative avenue under s 5A was not relevant where the respondent himself had moved for the stay.

On the central question, Spigelman CJ (with Dunford and Adams JJ agreeing) found there was no binding authority in New South Wales on whether the death of a foetus can amount to grievous bodily harm to the mother. The Court surveyed decisions from the United Kingdom, Canada, and New Zealand, noting that the answer in each jurisdiction turned on the specific legal context under consideration.

The Court resolved the question by reference to the particular statutory language of s 33, which uses the word "person." In the context of a provision directed at harm to a person, the physical connection between the mother and the foetus was treated as determinative. The foetus was properly regarded as part of the mother for the purposes of s 33. The community concern underlying aggravated assault offences supported this interpretation.

On the question of the Suitors' Fund Act certificate, both Spigelman CJ and Dunford J observed that such certificates should be granted to unsuccessful respondents in s 5F appeals only in exceptional cases. The present case was treated as exceptional because it raised a question of public importance and engaged authorities from three senior overseas jurisdictions, and because the Crown did not oppose the grant.

Orders Made

  • Appeal allowed
  • Order of permanent stay by Tupman DCJ set aside
  • Respondent to have a certificate under the Suitors' Fund Act 1951

Key Takeaways

  • Under s 33 of the Crimes Act 1900, the physical connection between a pregnant woman and her foetus is determinative of the meaning of "person": a foetus can be regarded as part of the mother, such that its death may constitute grievous bodily harm to her.
  • A permanent stay of an indictment count constitutes an interlocutory judgment or order for the purposes of s 5F of the Criminal Appeal Act 1912, permitting a Crown appeal against the order.
  • No NSW authority previously settled whether foetal death could amount to grievous bodily harm to the mother; decisions in the United Kingdom, Canada, and New Zealand turned on their own legislative and factual contexts and were not directly determinative.
  • Certificates under the Suitors' Fund Act 1951 in favour of unsuccessful respondents to Crown appeals under s 5F should be confined to exceptional cases, such as those raising questions of public importance or requiring analysis of senior overseas jurisprudence.
  • The Court of Criminal Appeal confirmed that the alternative appeal mechanism under s 5A of the Criminal Appeal Act 1912 is irrelevant where the defendant, rather than a jury verdict, prompted the proceeding being challenged.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 52A, 83
- Criminal Appeal Act 1912 (NSW), ss 5A, 5F
- Suitors' Fund Act 1951 (NSW), ss 5C, 6, 6C
- District Court Act 1973 (NSW), s 127
- Supreme Court Act 1970 (NSW), s 36
- Criminal Code of Canada, ss 203, 204
- Health and Disability Commissioner Act 1994 (NZ)

Cases:
- Attorney-General's Reference (No 3 of 1994) [1996] QB 581; [1998] AC 245
- R v Sullivan & Lemay (1986) 31 CCC (3d) 62; (1989) 31 BCLR (2d) 145; [1991] 1 SCR 489
- Harrild v Director of Proceedings [2003] 3 NZLR 289
- Winnipeg Child & Family Services (Northwest Area) v G [1997] 3 SCR 925
- R v Edelsten (1989) 18 NSWLR 213
- R v Lethlean (1995) 83 A Crim R 231
- R v Cheng (1999) 48 NSWLR 616
- Watt v Rama [1972] VR 353
- Paton v British Pregnancy Advisory Service Trustees [1979] QB 276
- Tremblay v Daigle [1989] 2 SCR 530