Citation: Director of Public Prosecutions (NSW) v Lasuladu [2017] NSWLC 11
Court: Local Court of New South Wales
Date: 5 July 2017
Judge(s): Hiatt LCM
Background
The accused was a 28-year-old mother of five who, at approximately 26 weeks into her pregnancy, came under pressure from her partner to terminate the pregnancy. Having been refused by clinics in New South Wales and interstate on the basis that her pregnancy exceeded 20 weeks, she obtained misoprostol tablets through an online contact and, on 3 September 2015, self-administered six tablets orally and vaginally.
She was taken to Blacktown Hospital after falling ill. An emergency caesarean section was performed and the child was born alive. She was subsequently charged under s 82 of the Crimes Act 1900 with unlawfully administering a drug to herself, being a woman with child, with intent to procure her own miscarriage. The offence carries a maximum penalty of 10 years' imprisonment.
The first two elements of the offence (that the accused was pregnant and that she had unlawfully self-administered the drug) were conceded by the defence. The sole contested question at the hearing was whether, at 28 weeks of gestation, the accused could have held the requisite intention to procure her "miscarriage" within the meaning of s 82.
Legal Issues
- Whether the word "miscarriage" in s 82 of the Crimes Act 1900 is limited to pregnancy loss occurring before 20 weeks of gestation (broadly reflecting the contemporary medical definition), or whether it extends across all stages of pregnancy.
- Whether, given the foetus was viable at 28 weeks, the accused could have intended to procure a "miscarriage" in the statutory sense.
- Whether the heading of Division 12 ("Attempts to Procure Abortion") illuminates the meaning of "miscarriage" used in the body of s 82, which has remained unamended since 1900.
Decision
The defence called Dr Carol Portman, a specialist obstetrician and gynaecologist, who testified that in contemporary medical practice the term "miscarriage" refers to spontaneous pregnancy loss before 20 weeks' gestation or below 400 grams. Beyond that point, pregnancy loss is classified as a stillbirth. Dr Portman also confirmed that misoprostol does not discriminate by gestational age and can induce labour and foetal death at any stage of pregnancy.
The Magistrate declined to import the modern medical definition into the statutory text. Section 82 has remained unamended since its enactment in 1900, and the court found no parliamentary intention to confine the offence to pregnancies under 20 weeks. The absence of any legislative amendment over 117 years was treated as indicative of a deliberate choice to leave the provision broad, covering all stages of pregnancy.
The Magistrate interpreted "miscarriage" in s 82 as encompassing the unlawful procurement of any expulsion of the foetus from the womb, regardless of gestational age or foetal viability. The heading of Division 12, "Attempts to Procure Abortion," inserted in 2000, was taken as consistent with rather than restrictive of that reading. The court drew on R v Sood [2006] NSWSC 762 to confirm that the offence is complete at the point of the unlawful act accompanied by the requisite intent.
Satisfied beyond reasonable doubt on all three elements, the Magistrate returned a finding of guilt and indicated the matter would proceed to sentence.
Orders Made
• The Court will hear the parties as to sentence.
Key Takeaways
- The Local Court held that "miscarriage" in s 82 of the Crimes Act 1900 is not confined to pregnancy loss before 20 weeks; the provision applies across all stages of pregnancy.
- Parliament's failure to amend s 82 at any point since 1900 was treated as significant: had the legislature intended to limit the offence to particular gestational periods, it could have done so expressly.
- Contemporary medical definitions of "miscarriage" and "abortion," while relevant as contextual evidence, do not control the legal meaning of those terms in a statute enacted in 1900.
- Under s 82, the offence is completed at the moment the accused unlawfully self-administers the drug with the requisite intent; an actual miscarriage or termination of the pregnancy is not a required element of the offence.
- Where a defendant's own actions are intended to bring about the unlawful termination of a pregnancy, it is no answer that the foetus was viable or that the clinical outcome was the live birth of the child.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 82, 83, 84
- Interpretation Act 1987 (NSW), ss 33, 35
- Statute Law (Miscellaneous Provisions) Act No 53 of 2000 (NSW)
Cases:
- CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
- Heydon's Case (1584) 3 Co Rep 7a
- Manly Council v Malouf t/as Fusion Point (2004) 61 NSWLR 394
- Norrie v New South Wales Births Deaths and Marriages [2013] NSWCA 145
- Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289
- R v Peters (1886) 16 QBD 636
- R v Sood [2006] NSWSC 762
- R v Spicer (1955) 39 Cr App R 189
- R v Wald (1971) 3 DCR (NSW) 25