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Queensland abortion couple not guilty

By Legal Eagle

Oh dear, I really must have a perverse desire to start Threads o’ Doom this week – first rape and sexual assault, now a post about abortion. Anyway, in news just in, a Cairns couple have been found not guilty of attempting to procure an abortion. The couple, Tegan Leach and Sergie Brennan, found out Leach was pregnant in late 2008, and the couple gave evidence that they did not want the baby because they were too young to be parents. Leach did not want to have a surgically invasive procedure, so Brennan got his sister in Ukraine to send them abortifactant drugs.

Queensland police found evidence of that Leach and Brennan had procured and used the drugs Misoprostol and RU486 when they were searching Leach and Brennan’s flat on an unrelated matter, and charged them pursuant to ss 225 and 224 of the Criminal Code 1899 (Qld) respectively.

Section 224 provides:

Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.

Section 225 provides:

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.

The Australian reports:

In summing up the two-day trial, Judge Everson explained to the jury that Ms Leach could be found guilty regardless of whether she had been pregnant or not when she attempted to procure her own miscarriage.

As a result, he said, the jury must be satisfied beyond reasonable doubt that the drugs Ms Leach took were noxious to her health, rather than to the health of her unborn child.

….The case has reignited the debate over Queensland’s abortion laws and pro-choice activists converged on Cairns to demand the decriminalisation of abortion.

Media coverage of the trial and the surrounding debate has also been intense and The Australian understands the couple is at the centre of a potentially lucrative bidding war by rival media outlets.

Questions remain about why the pair were prosecuted. Ms Leach was charged under section 225 of Queensland’s 111-year-old Criminal Code, thought never to have been used before.

Children by Choice’s Kate Marsh said police traditionally turned a blind eye to the practice.

“This law has been in place for 111 years and no charges have been brought under it before,” Ms Marsh said outside court.

“Why now, why this couple and why did they have to undergo 18 months of pretty much hell to be found not guilty?”

Derek Barry at Woolly Days has a really good post on the history of abortion law in Queensland which provides some further context to the case. It will be interesting to see if there is any change to Queensland law as a result of this case.

Update:

This piece in the SMH yesterday thinks that it is unlikely that either Queensland or New South Wales law will be reformed in the wake of this case.

The bottom line is that I’m a pragmatist, not an idealist. It seems that society in general doesn’t actually want to apply this law when it comes down to tin tacks — police don’t usually charge people under it, the DPP don’t usually prosecute people under it, and the courts and juries don’t want to find people guilty. If a piece of legislation is not working (i.e. no one is applying it) then it should be scrapped, even if it’s not replaced with something else. What is the point of having a dead letter provision in the statute? It makes an ass of the law.

38 Comments

  1. KiwiInOz
    Posted October 15, 2010 at 2:27 pm | Permalink

    On the face of it, and IANAL, it would appear that they are technically guilty when considering those two sections. But thank Dog for activist juries! A misbegotten law that should be gotten rid of.

  2. Patrick
    Posted October 15, 2010 at 2:34 pm | Permalink

    Whaddya mean thread of doom? It is beer o’clock here in Oz!

  3. conrad
    Posted October 15, 2010 at 3:11 pm | Permalink

    Does this mean people can import RU486 now as individuals? I hope so. Perhaps the Greens should push for it and stick it to all the conservative politicians yet again.

  4. Sweeney
    Posted October 15, 2010 at 5:00 pm | Permalink

    It is at times like this that a libertarian position makes the greatest sense. A woman has complete property rights in her own body.

    If a woman does not own her body, then what does she own, given what is implicit in the word and condition, ‘woman’?

    In the human world, in the west at least, not to own your body is to be a slave, surely.

  5. Posted October 15, 2010 at 5:44 pm | Permalink

    Damn, LE. I was cooking up something on the perverse jury verdict along the lines of “Jury says NO”…

  6. Posted October 15, 2010 at 5:53 pm | Permalink

    What Sweeney said.

    And while I’d like to read the judge’s summing up in more detail (the ‘it has to be noxious to Leach’ argument is, shall we say, interesting), this looks like Ye Olde Perverse Jury Verdict, and goes to illustrate Raz’s point that if you can’t take the people with you on moral law, then you may as well give up. I feel really sorry for the Principal Crown Prosecutor who had to run this dog of a case. I hope something similar never happens to me.

    I’ll also recommend Evan Schwarten’s articles on this — he covered the whole trial for News Ltd, and did so with thoroughness and accuracy. Lots of journalists are very bad at law reporting; Evan has bucked that trend very skillfully.

  7. TerjeP
    Posted October 15, 2010 at 6:16 pm | Permalink

    I’m surprised the jury found this decision so easy. I think they essentially ignored the law and I also think the directive from the judge was designed to help them do so rather than being about assisting them in understanding the law. This seems like a very activist decision on the part of both judge and jury. Whilst I think it was a good decision in regards to the couple involved, and whilst I think it’s an arse of a law I’m left feeling like the right decision was arrived at by a flawed means.

  8. ken n
    Posted October 15, 2010 at 6:33 pm | Permalink

    I can’t work out why the prosecution was pushed. There must have been many opportunities to apply the law if that is what someone wanted to do.
    Perhaps as simple as a prosecutor with a bee in his bonnet.
    The verdict does not bother me. It’s good to see that juries can give a good answer to a foolish question.

  9. TerjeP
    Posted October 15, 2010 at 8:34 pm | Permalink

    Section 225 includes this odd phrase “unlawfully administers”. It seems an odd usage given the intent of the law is to make said thing unlawful. A bit like saying that unlawfully killing a person is unlawful.

  10. TerjeP
    Posted October 15, 2010 at 8:37 pm | Permalink

    A question for the lawyers. Does a jury verdict form a precedent with any implication for other cases? Or is it only rulings by judges where consistency is sought after.

  11. Posted October 16, 2010 at 2:31 am | Permalink

    Turns out the DPP had to brief to the private bar. Michael Byrne QC is with Fullagar Chambers in Brisvegas.

    Still an utter shit sandwich for him, though.

  12. Posted October 16, 2010 at 7:05 am | Permalink

    Terje: The only time jurors contribute to precedent per se is when there are repeated perverse verdicts. Now this is pretty clearly a perverse verdict, but as LE points out, it’s only happened once in 111 years.

    The clearest example (to my knowledge) of perverse verdicts affecting substantive law is the series of jury verdicts leading up to passage of the 1922 Infanticide Act (UK). Prior to the Act being passed, infanticide was a capital crime. However, juries (and in those days, they were all male) persisted in acquitting accused women, even when the Crown case was overwhelming. The law was clearly being brought into disrepute; even ‘unlawful killing’ or the Roman/Scots ‘culpable homicide’ charges were getting nowhere.

    The 1922 infanticide law was brought in to cover newborn babies. In 1938, it was extended to the killing by a mother of babies up to a year old. It offers a narrow but substantive ‘infanticide defence’ based on varieties of post-natal depression.

    Homicide of children under one is greater than that of any other age group, four times higher than the murder rate in the population. Countries such as Sweden now ask a panel of doctors to try such cases, rather than a judge and jury. That said, recent research indicates that increased availability of abortion means that the 4:1 modern ratio represents a steep climb-down from earlier levels, which were about 20:1.

  13. TerjeP
    Posted October 16, 2010 at 11:59 am | Permalink

    Thanks LE & SL.

  14. CALLIGULA
    Posted October 16, 2010 at 3:49 pm | Permalink

    Hello Legal Eagle,
    I’ve posted this elsewhere but feel strongly about this issue.
    Please accept my poor offering.
    I’m anti-abortion. Its easy for me to be anti-abortion since I’m a bloke.
    I also happen to be pro-choice. Its easy for me to be pro-choice ‘cos unlike Madam Bligh, that disreputable Mr. Bean lookalike of an AG of hers, and the qld police farce, I don’t go about stuffing with people’s lives.

    Absolutely everything you’ve said is laudable and supportive of Tegan and Sergei but completely misses the point.

    For those of you fortunate enough to live elsewhere let me explain how queensland operates.
    Firstly, with regard to the qld criminal code and its implications to the treatment of Tegan and Sergei –
    That code was compiled by Samuel Griffith who relied upon (plagiarised) various sources but mainly the Italian criminal code.
    While reasonably progressive for its day the document can now be argued as being past its use-by-date with respect to matters these days usually considered to be victimless crimes.
    That situation is compounded by the progression toward rolling the traditional Common Law over to some pretense of Civil Law but without implementing any of the customary features of the Civil code and practice.
    In other words an inquisitorial system operated in an adversarial environment – a system where only those somehow backed by money, power, or influence win.

    Meanwhile queensland, lacking a house of review, finds it inordinately difficult to curb the vexatious exercise of arbitrary power by supposedly ‘authorised agents’, and those within the inner circle, of monocameral government.

    Without writing a treatise the possible future scenarios for Tegan and Sergei are much the same as continue for thousands of other Queenslanders vainly trusting upon an utterly compromised governance.

    At this stage they appear to have been granted a ‘win’ by an insightful jury.
    In fact their punishment will be years of debt and looming over their heads, the ongoing possibility that at any time an overzealous AG could declaim a retrial.

    Perhaps it is time queensland took a leaf out of the logbook of the Bounty.

  15. Posted October 16, 2010 at 7:13 pm | Permalink

    TP@9 There is quite a history of juries essentially “sabotaging” laws (or, at least, uses of laws) they did not agree with. Two examples which spring to mind is the power of juries to ascertain the value of stolen items (an amazing number of people were found guilty of stealing items valued at just under the death penalty trigger — in other words “guilty, but not THAT guilty”) and Charles James Fox‘s Libel Act giving juries the power to decide whether an act was libelous: the liberality of juries blocked government attempts to use claims of criminal libel to chill public debate.

  16. AJ
    Posted October 16, 2010 at 8:30 pm | Permalink

    Re your earlier point – “unlawfully administers” does seem rather redundant. I wonder if they chose it for emphasis?

    I assumed it would be there to protect doctors who preform abortions under lawful circumstances.

    I’d also have guessed the with or without child part was about evidence, especially given that the law is 111 years old, not distinguishing it as an offence against the mother not the foetus. That said I have no problem with the verdict; I am a fan of the golden rule and am ok with ambiguity being interpreted in favour of not sending people to prison.

  17. Posted October 16, 2010 at 8:43 pm | Permalink

    Apologies, I’ve just had to let a bunch of people out of the spammer. Also apologies for the fact that there’s been no Saturday chit-chat thread. DEM and I have been felled by a truly awful flu and are having to sleep when we can, not when we ought, mainly because the cough is keeping us both up all night.

  18. Patrick
    Posted October 16, 2010 at 10:27 pm | Permalink

    Surely the classical case with juries was the 5c/pennies damages, as Lorenzo hints at? That persists to our day, although it seems to sit unfortunately ill with the contemporary American psyche :(

  19. joe
    Posted October 17, 2010 at 4:33 am | Permalink

    It’s ok to kill innocent babies in wombs but it’s not ok to murder people?

  20. TerjeP
    Posted October 17, 2010 at 10:10 am | Permalink

    Unfortunately too few who are pro-choice are able to successfully also get out an anti abortion message. It seems that you can be heard on the legal question or heard on the cultural question but rarely can you be heard on both unless your views on each simplistically align.

  21. Posted October 17, 2010 at 10:27 am | Permalink

    “sister in the Ukraine” – so Ukranians who might find themselves in QLD should make a big cultural adjustment.

    “while searching on another matter” – so the cops who didn’t prevail on that, created this unrelated charge out of spite? (see ‘not in 111 years’ point).
    I have endured thorough search of my entire belongings by the Sydney CIB and it is a repulsive career if you ask me. They went through the laundry basket and untangled socks for godssakes.

    I WISH that ALL the males who historically have been So Relieved
    (including my own husband and the husbands of several of my friends)
    that their fertility has been proven without having to be educated, would send their Compliments to that magistrate.

    I WONDER if, every time they read ’100,000 termin*ations per year”, the Minister For Education isn’t relieved they don’t have to find 100,000 new primary school places per annum, and the extra teachers for them.

    I hope that young couple have a quiet week this week, poor things.

  22. PAUL WALTER
    Posted October 17, 2010 at 12:22 pm | Permalink

    what twenty five said.

  23. Posted October 17, 2010 at 4:47 pm | Permalink

    Bwca: If the original search wasn’t an attempt at a drug bust, I’ll eat my Akubra. This is speculation on my part, but I did my pupillage in the trial division of the Queensland Supreme Court and became very familiar with the Qld Police. They’re better than they used to be, but it is only a matter of degree.

  24. Henry2
    Posted October 17, 2010 at 7:43 pm | Permalink

    Gday all,
    I do recognise that at times in this comment I am entering waters that as a bloke, I should be avoiding!!
    Rather than comment on abortion pro or con, I want to reflect on where I think our society is placed because of the free availability of fertility controls.
    It is generally accepted that women who are better educated or wealthier are more likely to have fewer children, later. These folk are probably those that are more likely to have successful children, not because the children are fewer but because they are wealthier or better educated. In this respect our culture is moving in the wrong direction.
    Neither the article nor the post mention the age of the couple although that is said to be the major reason for wanting to procure a miscarriage.

    the couple gave evidence that they did not want the baby because they were too young to be parents

    Nature has deemed reasonably young women to be parents until this age of fertility control. The difficulty that couples have with IVF at later ages is indication that somehow we are trying to do something unusual. Younger women are probably more capable of looking after young children.
    When I was a child, adoption of unwanted children by childless couples was relatively commonplace. Childless couples are still out there and many of them do still seek to nurture a child. For good or for bad that supply of unwanted children/pregnancies has dried up.
    Regards,

    Frank

  25. Posted October 17, 2010 at 8:01 pm | Permalink

    The link between higher IQ, smaller families, later births and future success is very well documented. Large families hold back not only the mother, but the children as well — the researcher who first documented ‘the Flynn Effect’ also did the latest research.

    Also, nature used to want 1/4 or 1/3 (depending on time period) of all children born to die before the age of 5; it used to want 1/100 women to die in childbirth (the ‘natural’ maternal mortality rate). It used to want all sorts of other toxic things, too. One of the reasons I’m not a greenie is because I support modern medicine and technology in its war on nature.

    People have tried to control their fertility since the beginning of recorded history. Before modernity, while there were quite a few civilisations that were good at abortion (Pacific Islanders, Romans, Japanese, for example), but no-one came up with reliable contraception until modernity.

    Compared to its provenance historically, abortion is now safe, legal and rare, believe me, and I for one am glad we live in a world largely without Magdalene asylums and orphanages (where most of those unwanted kids went in days gone by).

  26. PAUL WALTER
    Posted October 17, 2010 at 8:12 pm | Permalink

    Henry2, I seem to recall recent instances in newspaper where young girls have tried to have their children adopted out, but been forced by the new morality to keep the baby regardless of their capacity to look after any child.
    SL, baffled at your line re Science and Greens, but will put it down to your sense of humour.

  27. Movius
    Posted October 17, 2010 at 10:27 pm | Permalink

    Surely I’m not the only one that thinks that the last thing the anti-abortion lobby wants is women going to jail for getting an abortion.

    Just that anyone not wanting a child feel really, really bad about themselves.

  28. PAUL WALTER
    Posted October 18, 2010 at 8:26 am | Permalink

    They are elegant blockquotes, Legal Eagle.
    Are the Sceptical Lawyer and Ghost in the Raincoat still ailing?

  29. desipis
    Posted October 18, 2010 at 1:00 pm | Permalink

    Surely I’m not the only one that thinks that the last thing the anti-abortion lobby wants is women going to jail for getting an abortion.

    I imagine they “want” it in the same way the pro-choice lobby “wants” hundreds of thousands of abortions every year. Both are seen as undesirable means to a more desirable end.

    LE:

    Should it still be law, if it is essentially a dead letter which the majority of people don’t want to enforce?

    There was one thing that I came across in a conversation with a police officer about the laws against suicide. Apparently the laws weren’t valued due to their ability to facilitate prosecution but rather as a mechanism to enable legal intervention by authorities. For example, it’s not illegal to possess a lethal amount of sleeping tablets hence the police could not normally confiscate them, however if there was intent to break the law by committing suicide then there would be cause for police intervention.

    I wonder if there is a similar angle with the ‘noxious substance’ law here, where the assumption is that the woman may be acting irrationally and the law would enable intervention.

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