LAW REPORT.

New Zealand Police Gazette, Volume XXXII, Issue 28, 17 July 1907, Page 282

LA W REPORT.

[ln the Court or Appeal,] “New Zealand Law Reports,” Vol. xxvi, p. 536.) Rex v. Nosworthy. Criminal Law A bortion Supplying Noxious Thing Knowledge of Supplier as to intended Unlawful Use — “ The Criminal Code Act, 1893," Section 203 — Evidence — Acts proving System. A person supplying a “ noxious thing ” to another person who states that it is required for the purpose of procuring the miscarriage of a woman, even if it is not intended for that purpose, and there is no woman in existence on whom the thing could be used, is guilty of an offence under section 203 of “ The Criminal Code Act, 1893,” for the word “ knowing ” in that section has the meaning of “ believing.” Reg. v. Hillman (33 L.J. M.C. 60) followed. Per Curiam. —Where there is a clause in a New Zealand statute identical with a clause in an English statute which has been construed by the English Court of Appeal, the Courts of New Zealand should adopt the construction put upon the clause by the English Court of Appeal. Case reserved by Chapman, J., under section 412 of “ The Criminal Code Act, 1893,” for the opinion of the Court of Appeal. The prisoner, James Nosworthy, was carrying on the business of a herbalist in Wanganui, and on the 13th of March, 1907, was arraigned at the circuit sittings of the Supreme Court at Wanganui on an indictment containing six counts charging him with supplying a noxious thing knowing that it was intended to be unlawfully used for the purpose of procuring the miscarriage of some woman, and also charging him with an attempt to supply the said noxious thing for the same purpose. Evidence was given against the prisoner by a constable, who stated that he had gone dressed in plain clothes to the prisoner and told him that he (the constable) had “ got a girl into trouble,” and had been supplied by the prisoner with an instrument or thing called a “sea-tangle tent,” to be used in procuring the miscarriage of the girl; that the story which he had told the prisoner was false, and that there was no girl in existence for whom he intended to use the instrument. Evidence was also tendered by the Crown of entries in the prisoner’s books showing numerous sales of objects of the same kind extending over a considerable period. This evidence was objects! to on behalf of the prisoner, but was admitted by Chapman, J., on the ground that it tended to show the systematic sale of instruments capable of being used for the purpose of procuring abortion, and that this was relevant for the purpose of negativing any defence that might be raised as to the sale to the constable being for a lawful purpose. At the close of the case fov the Crown counsel for the prisoner raised the point that no offence had been proved against the prisoner under section 203 of the Criminal Code, as, there having been no woman on whom the instrument was intended to be used, the prisoner could not have known that it was intended to be so used. Counsel for the prisoner further contended that no attempt under section 76 of the Criminal Code had been proved against the prisoner, as there could not be an attempt where there was no possibility of the crime charged being committed. Chapman, J., declined to withdraw the case from the jury, and directed them that they could find the prisoner guilty under both sections. The prisoner was found guilty on all the counts in the indictment. The following questions were thereupon reserved for the Court of Appeal: 1, Whether the evidence as to other sales of similar instruments had been properly admitted ; 2, whether the charge under section 203 of the Criminal Code had been proved; 3, whether the charge under section 76 of the Criminal Code had been proved ; 4, whether the prisoner had been properly convicted. Williams, J., delivered the judgment of the Court : As to the interpretation of section 203 of “ The Criminal Code Act, 1893,” I am satisfied that we are bound to follow the decision of the Court of Crown Cases Reserved in England in the case of Reg. v. Hillman (33 L.J. M.C. 60). Where there is a clause in our statute identical with a clause in an English statute, and that clause has received a certain interpretation by the highest English Court, we should adopt that interpretation. That is one reason why Reg. v. Hillman should be followed. But there are other reasons. That case was deoided before our Criminal Code was enacted, and it must be taken that section 203 of the Criminal Code was framed with reference to the then received construction of the similar clause in England. The Court of Appeal also in Rex v. Scully (23 N.Z. L.R. 380) adopted Reg. v. Hillman, and we are bound by the decision of this Court. If the case had come before the Court for the first time the

arguments of the learned Judges in the Viefcorian case of Reg. v. Hyland (24 V. L.R. 101) would have been exceedingly relevant, but we cannot go behind Reg. v. Hillman. I think, however, that decision was properly arrived at. Section 203 of our Code was intended to punish an act coupled with a mental disposition. The act is the selling of a noxious thing; the disposition of the mind is that the seller knew that it was to be used for an unlawful purpose. If t'ne seller is told that it is to be so used and believes that it is to be so used, his mental attitude is the same as if he knew, and as if he had a complete personal knowledge. There are good reasons, therefore, for construing the word “ knowing ” in section 203 of the Code as equivalent to “ believing.” Conviction affirmed. Solicitors for the prisoner : Barnicoat and Treadwell (Wanganui). Solicitor for the Crown: The Crown Solicitor (Wanganui).