Case Report
| Date | 01 December 1969 |
| DOI | 10.1177/000486586900200410 |
| Published date | 01 December 1969 |
| Subject Matter | Case Report |
244 AUST. &N.Z. JOURNAL OF CRIMINOLOGY (Dec., 1969): 2, 4
CASE REPORT
R11 Davidson
Heard in the Supreme Court (Menhennitt, J.) at Melbourne, Victoria,
12-30 May, 2-3
June
1969. Reported [1969] V.R. 667.
D was charged on four counts of unlawfully using
an
instrument
or
other
means
with
intent
to procure
the
miscarriage of a woman
and
one
count
of conspiring unlawfully to procure
the
miscarriage of a woman.
Shortly
after
this
trial, Mr. G. O. Reid, Attorney-General of Victoria, com-
mented
that
this
was
the
first comprehensive
statement
of
the
law by a
Victorian Supreme Court Judge
and
hitherto
reliance
had
been placed
mainly on English authorities
such
as
Bourne's
case.
The
principle of
these
cases was, however, confirmed by Mr. Justice Menhennitt. As
this
case
has
become of some
interest
and
importance
the
ruling of
the
learned
trial
judge as
set
out
in
the
Victorian
Reports
is reproduced
here
in
an
edited
form. The ruling, in
part,
reads:
The
relevant
portion of s.65 of
the
Crimes
Act
1958,
under
which
the
first
four counts
are
laid
and
which is
the
basis of
the
conspiracy charge in
the
fifth
count,
is
as follows: "Whosoever
...
with
intent
to procure
the
mis-
carriage of
any
woman
whether
she is or is
not
with
child unlawfully
ad-
ministers to
her
or causes to be
taken
by
her
any
poison or
other
noxious
thing, or unlawfully uses
any
instrument
or
other
means
with
the
like
in-
tent,
shall be guilty of a felony,
and
shall be liable to imprisonment for a
term
of
not
more
than
fifteen years".
The
use of
the
word "unlawfully" in
the
section implies
that
in
certain
circumstances
the
use of
an
instrument
or
other
means
to procure amis-
carriage
may
be lawful. The word "unlawfully" is nowhere
statutorily
de-
fined. Section 65 of
the
Victorian Crimes Act is,
apart
from
the
penalty,
in
substance
in
the
same form as s.58 of
the
English Offences Against
the
Person Act
1861
(24 &25 Viet. c. 100) which continued to be
the
law
in
England
until
it
was qualified by
the
English Abortion Act
1967,
a
statute
which
has
not
been enacted in Victoria.
In
England
the
1861
provision was
preceded by
an
Act of
1837
(7 Will. 4 &1 Vict. c. 85), s.6 of which was
in
substantially
the
same terms as
the
relevant portion of
the
1861
provision
except
that
it
did
not
include
the
words
"whether
she
be or be
not
with
child" in
the
1861
section. The predecessor of
the
1837 Act was s.13 of a
statute
of 1828 (9 Geo. 4 c. 31) which in
turn
was preceded by
the
original
statutory
provision in England, a
statute
of
1803
(43 Geo. 3 c. 58). Section
1 of
that
Act
made
it a felony wilfully, maliciously,
and
unlawfully to
ad-
minister
any
deadly poison or
other
noxious
and
destructive substance or
thing
with
intent
to procure amiscarriage
and
s.2
made
it
a felony wilfully
and
maliciously to administer
any
substance or
thing
or employ
any
instru-
ment
or
other
means
with
intent
to procure amiscarriage of
any
woman
not
proved to be quick with child.
Thus
s.2 did
not
make
it
an
offence to
employ
an
instrument
onawoman quick with child.
The
statute
of 1828
remedied
this
omission
and
also used
the
word "Unlawfully" in
the
pro-
vision.
In
all
of these
statutory
provisions
the
word "unlawfully" appeared
as
an
ingredient of
the
offence save in s.2 of
the
original Act of
1803.
(The
footnote in Russell on
"Crime"
(11th ed.) ,
p.663,
that
the
word "unlawfully"
was
not
in
9 Geo. 4 c. 31, s.13, is incorrect.)
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