Crown appeal from abortion case

Press, Volume CXVI, Issue 34127, 13 April 1976, Page 2

Crown appeal from abortion case

(N Z. Press Association) » WELLINGTON, April 12. j The use of an instru-| ment to procure a mis- i carriage was lawful only! for preservation of the ■ life of the mother. the> Court of Appeal was told today. The Solicitor-General (Mr R. C. Savage, Q.C.), submitted this was the proper test, and that the Judges who presided at the trial and retrial of James Woolnough. a medical practitioner, had, in effect.

propounded a test of their own. Mr Savage said the Crown [was asking the Court to decide that the direction which was given was wrong and iwhat the proper test should be. I ff the Court were to hold | there had been a misdirection and concluded on the Iface of it that there was a miscarriage of justice because the jury members had addressed their minds to the wrong issue, in the ordinary course of events there should be ■ new trial. “The question of whether there should be a new trial would still be open,” Mr Savage said. _

The Court was the Chief Justice (Sir Richard Wild), presiding. Mr Justice Richmond, and Mr Justice Woodhouse. Decision was reserved. Last November. Dr Woolnough. of Sydney, was acquitted by a jury 'in the Supreme Court at Auckland on 12 charges of unlawfully using an instrument with intent to procure a miscarriage. He was previously tried before Mr Justice Speight on the same indictment, and the jure failed to agree on any of the charges.

The case stated to the Court of Appeal by the Crown said that all of the acts — the subject of the in-

cident — were done in a clinic run by the Auckland Medical Aid Trust.

In his direction to the jury, Mr Justice Chilwell had said the test as to whether the use of an instrument was unlawful was whether it was necessary to preserve the woman from serious danger to her life or to her physical or mental health, not being the normal dangers of pregnancy and childbirth. He had said that, whether there existed in any of the 12 instances under consideration a serious danger to physical health, or a serious danger to mental health, was entirely a question of fact for the jury. Mr Savage said that Mr Justice Chilwell, in effect, had said that the common law, as distilled from the cases, had provided an answer to the question of what was lawful and what, was unlawful. This view was not contested.

“The judge’s view of what that answer is, however, is contested.” he said. “It is submitted he is wrong.” The Crown’s submission was that, the proper test was that the use of an instrument in such circumstances was lawful- only when done for the preservation of the life of the mother.

Mr Savage argued that if. contrary to his submissions, the serious danger to physical or mental health test was proper, it might be necessary to direct that the jury would have to be satisfied it was a probable consequence of the continuance of the pregnancy that the mother would suffer serious physical or mental ill-health.

BOURNE CASE He said the proper approach was that in a case (previously cited) where a Dr Bourne had terminated the pregnancy of a 14-year-old girl at a hospital. She was pregnant as the result of a gross rape, and there was medical evidence as to the likely consequences to her if she gave birth to the child. This evidence went as far as to say she would become a mental wreck. It could be inferred this would put her life in danger. Mr Savage said that if his submissions were correct, the question that still remained was what did “preservation of the life of the mother” mean

The plain meaning of the words would be that unless the particular act was done the mother would die. It was accepted that injury to health might be relevant if it were material upon which it could be said the probable consequences would be to endanger the life of the mother. In the case of mental health, it would be some condition having as a probable consequence suicidal tendencies or attitudes which could endanger the mother’s life. Mr Savage said that Mr

Justice Chilwell and Mr Justice Speight had, in effect, propounded a test of their own, “which is drawn partly from Davidson (a case cited) but not wholly.”.

“NO DEPARTURE” Replying, Mr L. W. Brown, Q.C., said that Mr Justice Chilwell — and, at the previous trial, Mr Justice Speight — had not really departed from the test in the Bourne case as later construed in other cases. He submitted that Mr Justice Chilwell’s direction, in particular, was clear and provided excellent guidelines for a jury. Mr Justice Speight, though his directions in this area were not as compact, had followed the same line as the Judge in the second trial. He suggested it was easy to slip into the fault of playing with words.

“And this is a fault, I suggest. one falls into when debating whether, ‘Serious danger to physical or mental health’ means that the danger is serious or whether the word, ‘serious/ has I to be transferred to the state of health.”