IN THE SUPREME COURT OF SAMOA

HELD AT APIA

BETWEEN

POLICE
Informant

AND

AKALITA APELU of Malie.
Accused.

Counsel: R Schuster and L Petaia for prosecution
M Leung Wai for accused

Hearing: 8, 9 June 2004

Judgment: 10 August 2004

JUDGMENT OF SAPOLU CJ

The accused is charged with sixteen counts of procuring the abortion of sixteen different women on diverse dates from 2000 to 2003 under s73A(1)(b) of the Crimes Ordinance 1961. Section 73A provides:

“(1)	Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to procure the miscarriage of any woman or girl, whether she is with child or not, -

“(a)	unlawfully administers to or causes to be taken by her any poison or any drug or any noxious thing; or

(b)	unlawfully uses on her any instrument; or

(c)	unlawfully uses on her any other means whatsoever.

(2)	The woman or girl shall not be charged as a party to an offence against this section.”

This is the first prosecution for procuring an abortion under s73A, more specifically under s73A(1)(b) and the law on the subject is rather complex. To facilitate understanding of the legal issues that arise from the evidence, it is necessary to discuss those issues in turn and then apply them to the facts.

Elements to be proved under s73A(1)(b) for each charge

Section 73A(1)(b) of the Crimes Ordinance 1961 which is the charging provision provides that every one is liable to imprisonment for a term not exceeding 7 years who, with intent to procure the miscarriage of any woman or girl, whether she is with child or not, unlawfully uses on her any instrument. The offence thus created consists of two elements which the prosecution must prove beyond reasonable doubt. These are: (a) that the accused intended to procure the miscarriage of a woman, and (b) that the accused unlawfully used on her an instrument. There is no difficulty with the first element but it is the second element which gives rise to difficulties and the first defence raised for the accused is that the prosecution has not proved the second element in respect of each charge beyond reasonable doubt. These difficulties arise from the meaning to be given to the word “unlawfully” used in creating the offence of procuring an abortion. It is therefore necessary to identify first the meaning which the Courts have given to that word. In doing so, it is necessary to refer to the relevant authorities in other jurisdictions.

The starting point must be the case of R v Bourne [1939] 1 KB 687 which has been the leading English authority on the offence of procuring an abortion for many years. In that case, a doctor who was a consultant obstetrician of the highest skill performed an operation on a 14 year old girl to terminate her pregnancy which resulted from a shocking and violent rape. It was clear that if the pregnancy was allowed to continue the victim would become a physical and mental wreck. After the operation was carried out, the doctor was charged under s58 of the Offences Against the Person Act 1861 (UK) which provided:

“Whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony.” (italics mine).

The words of s58 which have been italicised are very similar to the words of s73A(1)(b) of the Crimes Ordinance 1961 under which the accused in the present case has been charged. Section 58 does not define the word “unlawfully” but in Bourne Macnaghten J in his direction to the jury said that the word “unlawfully” is not a meaningless word and should be given meaning. He did that by saying that the word “unlawfully” in s58 imports a meaning similar to the proviso to s1(1) of the Infant Life (Preservation) Act 1929 (UK). Section 1(1) provided:

“Any person who, with intent to destroy the life of a child capable of being born, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction and shall be liable on conviction thereof on indictment to penal servitude for life. Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.” (italics mine)

Having said that the word “unlawfully” in s58 of the Offences Against the Person Act 1861 (UK) imported the meaning expressed by the proviso to s1(1) of the Infant Life (Preservation) Act 1929 (UK), Macnaghten J then continued with his direction to the jury in Bourne by saying at p691:

“In this case, therefore, my direction to you in law is this - that the burden rests on the Crown to satisfy you beyond reasonable doubt that the defendant did not procure the miscarriage of the girl in good faith for the purpose only of preserving her life. If the Crown fails to satisfy you of that, the defendant is entitled by the law of this land to a verdict of acquittal. If on the other hand, you are satisfied that what the defendant did was not done by him in good faith for the purpose only of preserving the life of the girl, it is your duty to find him guilty.”

In similar terms Macnaghten J went on in his direction to the jury to say at p695:

“[The question that you have got to determine is not are you satisfied that he performed the operation in good faith for the purpose of preserving the life of the girl. The question is, has the Crown proved the negative of that? If the Crown has satisfied you beyond reasonable doubt…. that he did not do this act in good faith for the purpose of preserving the life of the girl, then he is guilty of the offence with which he is charged. If the Crown have failed to satisfy you of that, then by the law of England he is entitled to a verdict of acquittal.”

In terms of what was said by Macnaghten J in Bourne, the two elements of the offence of procuring an abortion which the prosecution has to prove beyond reasonable doubt may be stated as: (a) that the accused intended to procure the miscarriage of the victim, and (b) that the accused did not procure the miscarriage of the victim in good faith for the purpose of preserving her life.

It must be observed here that the wording of s58 of the Offences Against the Person Act 1861 (UK), though not identical to, is very similar to the wording of s73A of the Samoan Crimes Ordinance 1961. Likewise, the wording of the proviso to s1(1) of the Infant Life (Preservation) Act 1929 (UK), though not identical to, is similar to the wording of s73(3) of the Samoan Crimes Ordinance 1961 which provides:

“No one is guilty of any crime who before or during the birth of any child causes “its death by means employed in good faith for the preservation of the life of the mother.”

In view of the similarities in the English provisions and the Samoan provisions I have referred to, I am of the opinion that what was said in Bourne by Macnaghten J is relevant to a consideration of the interpretation to be given to the Samoan provisions and in particular the meaning of the word “unlawfully” used in s73A of the Crimes Ordinance 1961.

In two subsequent cases, the English Courts expanded on the meaning of the word “unlawfully” given to it in Bourne to include not only the preservation of the woman’s life but also the preservation of her health which means her physical and mental health. The first of these two cases is the unreported case of R v Bergmann and Ferguson (1948) which is noted by Smith and Hogan Criminal Law (1973) 3rd ed at pp 273 – 274 where Morris J had said that “the Court will not look too narrowly into the question of danger to life where danger to health is anticipated.” In the later case of R v Newton and Stungo [1958] Crim L Rev 469, Ashworth J in his direction to the jury said:

“The law about the use of instruments to procure miscarriage is this:

Such use of an instrument is unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman. When I say health I mean not only her physical health but also her mental health. But although I have said that ‘it is unlawful unless,’ I must emphasise and add that the burden or proving that it was not used in good faith is on the Crown.”

In terms of the subsequent developments in Bergmann and Ferguson and more particularly in Newton and Stungo, the two elements of the offence of procuring an abortion which the prosecution has to prove beyond reasonable doubt are: (a) that the accused intended to procure the miscarriage of the victim, and (b) that the accused did not procure the miscarriage of the victim in good faith for the purpose of preserving her life or health. The health of the victim means not only her physical health but also her mental health.

The English authorities which have been cited and the law relating to the offence of procuring an abortion were given extensive and in-depth consideration by the New Zealand Court of Appeal in R v Woolnough [1977] 2 NZLR 508. In that case a registered medical practitioner was charged with procuring an abortion under s183(1)(b) of the Crimes Act 1961 (NZ). Section 183 as a whole provides:

“(1)	Every one is liable to imprisonment for a term not exceeding fourteen years who, with intent to procure the miscarriage of any woman or girl, whether she is with child or not, -

(a) unlawfully administers to or causes to be taken by her any poison or any drug or any noxious thing; or

(b) unlawfully uses on her any instrument; or

(c) unlawfully uses on her any means other than any means referred to in paragraph (a) or paragraph (b) of this subsection.

(2)	The woman or girl shall not be charged as a party to an offence against this section.”

In determining the meaning to be given to the word “unlawfully” in s183, Richmond P, who delivered the leading judgment in Woolnough, said at p516 that the proviso in s182(2) of the Crimes Act 1961 (NZ), even though it did not apply to all cases covered by s183 because it is in terms limited to the situation where the death of a child is caused before or during its birth, it nevertheless qualifies the meaning of the word “unlawfully” in s183 since as a matter of commonsense the legislature must have intended that a bona fide intention to preserve the life of the mother would prevent an abortion from being unlawful under s183. In this way, Richmond J was in effect following the approach by Macnaghten J in Bourne of importing the proviso in s1(1) of the Infant Life (Preservation) Act 1929 (UK) to qualify the meaning of the word “unlawfully” used in s58 of the Offences Against the Person Act 1861 (UK). Richmond P, on the basis of the English and other authorities which he discussed extensively and in depth, then said at p517:

“In the present case the Court is concerned only with the concept of the welfare of the mother as a justification for an abortion in the early stages of pregnancy. In that field we have the assistance of s182(2), which at least shows that the legislature itself was positively of the view that a bona fide intention to preserve the life of the mother in the late stages of pregnancy would justify the procurement of her miscarriage. The narrow question, then, is whether the Courts ought not, in the case of early pregnancy at least, to extend that concept to include a bona fide intention to preserve the health of the mother from serious harm.

I can see no sufficient reason why this should not be done. In the first place it seems to me that the ‘reasonable’ interpretation of the life of the mother which was accepted in Bourne is likely to be an artificial and perhaps difficult one in practice. That this is the view of some English Judges appears from the gradual shift away in emphasis disclosed in the directions to the jury by Morris J and Ashworth J in the two cases to which I have earlier referred. The textbooks favour the open acknowledgment of preservation of health as well as preservation of life as preventing an abortion from being unlawful. Reference may be made to Glanville Williams (op cit) 153 – 154 and to Smith and Hogan (op cit) 274.”

In effect, therefore, Richmond J was accepting that the formula for determining the meaning of the word “unlawfully” in s183 should be qualified by the proviso in s182(2) but it is not to be limited to the preservation of the life of the mother as in Bourne, but must be extended to include the health of the mother.

Section 182 of the Crimes Act 1961 (NZ) which deals with the crime of killing an unborn child provides in subsection (2):

“No one is guilty of any crime who before or during the birth of any child causes its death by means employed in good faith for the preservation of the life of the mother.”

It is to be observed that s183 of the Crimes Act 1961 (NZ) to which I have already referred is virtually identical in terms to s173A of the Samoan Crimes Ordinance 1961 and that s182(2) of the New Zealand Act is identical word for word with s73(3) of the Samoan Ordinance. Thus what is said in Woolnough as to the interpretation of s183 of the New Zealand Crimes Act is directly applicable to the interpretation of the relevant Samoan provision.

The majority in Woolnough, Richmond P and Woodhouse J, accepted for the purpose of that case the test applied by the trial Judge to the word “unlawfully,” subject to one reservation. This test as formulated by the trial Judge states:

“The test for whether or not the use of an instrument is unlawful is whether it is 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.”

It was observed by the majority of the Court that the words “not being merely the normal dangers of pregnancy and childbirth” were redundant and better left unsaid or omitted. It was also observed by the majority that there was no precise formula sufficient to meet all the circumstances that may arise from charges laid under s183 even though the formula used in that case was not an incorrect one.

It would appear from the way the test is formulated in Woolnough that for the prosecution to secure a conviction under s73A(1)(b) of the Crimes Ordinance 1961, it must prove beyond reasonable doubt that the use of an instrument was unlawful in the sense that it was not necessary to preserve the woman from serious danger to her life or to her health. This is essentially the same position as it was in England after Newton and Stungo. In the circumstances, I conclude that the two elements for the crime of procuring an abortion in the present case which the prosecution has to prove, beyond reasonable doubt are: (a) that the accused intended to procure the miscarriage of the victim, and (b) that the accused did not procure the miscarriage of the victim in good faith for the purpose of preserving her life or health. The test as framed in Woolnough is also to be considered given that the relevant New Zealand and Samoan provisions are virtually identical. As already pointed out, the first defence raised for the accused in the present case is that the prosecution has not proved the second element of the crime in relation to each of the charges.

Bona fide intention to preserve the life or health of a woman

If the accused has a bona fide intention to preserve the life or health of a woman when terminating her pregnancy, then that is a good defence to the charge of procuring an abortion under s73A of the Crimes Ordinance 1961. In the discussion by Macnaghten J in Bourne of the words “for the purpose of preserving the life of the mother” used in the proviso to s1(1) of the Infant Life (Preservation) Act 1929 (UK), he said at pp693 – 694:

“As I have said, I think those words ought to be construed in a reasonable sense, and if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother.”

In Woolnough Richmond P said at p516:

“What, then, is to be said of the proviso contained in s182(2)? The first point to note is that this proviso cannot literally apply to all cases covered by s183 because it is in terms limited to the situation where the death of a child is caused before or during its birth. Section 183, on the other hand, covers unsuccessful attempts at abortion. Nevertheless, and as a matter of common sense, it must have been intended by the legislature that a bona fide intention to preserve the life of the mother would prevent an abortion from being unlawful under s183.”

Then further on at p518, Richmond P went on to say:

“[I] am quite satisfied, after reading the summing-up as a whole, that the jury would have clearly understood that the Judge was telling them that there must, in the bona fide opinion of the doctor, be a real risk of serious danger to the life of the mother or of serious harm to her physical or mental health.”

In State v Sefanaia Bilovucu Tambua (1992) (Criminal Appeal No. 6 of 1991; judgment delivered on 30 September 1992) which was cited by counsel for the accused in the present case, the respondent, a registered medical practitioner, was charged on two counts under s172 of the Penal Code Cap. 17 (Fiji) that, with intent to procure the miscarriage of a woman, he unlawfully used instruments. His defence was that he attempted to terminate the pregnancy in each case believing in good faith that to allow the pregnancy to continue would be to make the woman a physical or mental wreck. The respondent was acquitted of both counts against him. On appeal by the Director of Public Prosecutions, the Court of Appeal of Fiji said:

“In his summing-up the Judge directed the Assessors that if in each case the respondent formed an opinion, based on reasonable grounds, and adequate knowledge available to him, that the probable consequence of the continuance of the pregnancy would be to make the woman a physical or mental wreck then he would not have acted unlawfully in procuring a miscarriage. In giving this direction the Judge said that this interpretation of the law of Fiji was derived from the English cases of R v Bourne [1939] 1 KB 687, R v Smith [1974] 1 A11 ER 376.”

The Court of Appeal then went on to say that the direction given to the Assessors by the Judge was taken directly from Bourne’s case. The appeal was dismissed.

It was not expressly raised as a defence in the present case that the accused had a bona fide intention or opinion when she used an instrument on each victim of the charges against her, that what she did was necessary to preserve the life or health of the victim. Perhaps the defence had good season for not doing so. But it is clear from the authorities that such a defence can be available to an accused on a charge of procuring an abortion depending on the evidence.

Necessity

The common law defence of necessity was raised on behalf of the accused in this case. This would be the second Samoan case in which necessity has been raised as a defence in criminal proceedings. Under s9 of the Crimes Ordinance 1961 which preserves the common law defences, necessity would be available in the criminal law of Samoa. In the unreported case of Sonny Stehlin v Police (1994) (C.A. 13/92; judgment delivered on 23 March 1993), necessity was raised as a defence to charges of possession of cannabis and cultivation of cannabis under the Narcotics Act 1965. The accused was convicted of the charges and he appealed. In delivering the judgment of the Court of Appeal, Cooke P said:

“The leading authority in common law jurisdictions on the defence of necessity is now probably the judgment of Dickson J in the Supreme Court of Canada in Perka v R (1984) 13 D.L.R. (4th) 1. Sapolu CJ quoted extensively from that judgment in his own present judgment, and we extract a few phrases from Dickson J’s reasons, as these convey the gist of the defence and the principles that lie behind it. Dickson J says, for example, that where a defence of necessity is available, it is

’paramount over other laws, relieving obedience from the letter of the law. If it does exist, it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible.’

Again:

’That rationale as I have indicated, is the recognition that it is inappropriate to punish actions which are normatively involuntary.’

’A little later he poses the test:

’…….whether the wrongful act was truly the only realistic reaction open to the actor or whether he was in fact making what in fairness could be called a choice.'

Finally, he says:

’……normal human instincts cry out for action and make a counsel of patience unreasonable.’

That being the flavour of the defence, with this emphasis on matters of urgency or emergency, we cannot accept that deliberately cultivating cannabis over a substantial period, even over a period of years, could possibly be said to fall within it in any circumstances that we can visualise.

One of the matters alluded to by Dickson J was whether there was a legal way “out for the defendant in the case before the Court…..”

What is of more practical importance is that there is probably a way out in fact, as the Chief Justice pointed out.”

Counsel for the accused in his most helpful citation of authorities, cited the judgment of the Supreme Court of Canada in R v Latimer [2001] 1 SCR 3 where the defence of necessity set out by Dickson J in Perka v R [1984] 2 S.C.R. 232 is further explained. At pp11 – 12 it is said:

“The leading case on the defence of necessity is Perka v The Queen [1984] 2 S.C.R 232, Dickson J, later C.J., outlined the rationale for the defence at p.248:

“It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is….

Dickson J insisted that the defence of necessity be restricted to those rare cases in which ‘true involuntariness’ is present. The defence, he held, must be ‘strictly controlled and scrupulously limited’ (p.250). It is well established that the defence of necessity must be of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J. that necessity would ‘very easily become simply a mask for anarchy. Southwark London Borough “Council v Williams [1971] Ch. 734 (C.A.), at p746.

Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.

To begin, there must be an urgent situation of ‘clear and imminent peril’: Morgentaler v The Queen [1976] 1 S.C.R. 616, p. 678. In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J expressed the requirement of imminent peril at p251: ‘At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.’ The Perka case, at p251, also offers the rationale for this requirement of immediate peril: ‘The requirement… tests whether it was indeed unavoidable for the actor to act at all.’ Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.

The second requirement of necessity is that there must be no reasonable legal alternative to disobeying the law. Perka proposed these questions, at pp251 – 252: ‘Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out? (emphasis in original). If there was a reasonable legal alternative to breaking the law, there is no necessity. It may be noted that the requirement involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity on this aspect fails.

The third requirement is that there be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. See Perka, per Dickson J, at p252.

No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him.”

The Court then discussed the subjective and objective tests to be applied to the three elements of necessity at pp12 – 13. It is not necessary to quote any further but any lawyer who is truly interested in this aspect of the law is advised to read and study all that which is said about necessity in Latimer.

Having set out the three elements of the defence of necessity, which must be all present before the defence can succeed, and the considerations which apply, it is necessary to consider whether the defence applies to an offence under s73A of the Crimes Ordinance 1961. It must be borne in mind, of course, that necessity is of limited application. In R v Woolnough [1977] 2 NZLR 508, Richmond P preferred not to rely on the defence of necessity to determine the legality of a therapeutic abortion because of the extreme vagueness of necessity as a general defence in English criminal law (p516). At p517 when Richmond P was discussing the question of what is a justification in the case of a therapeutic abortion, he said:

“As earlier stated, I do not think that the Court should confine its approach to this question by reference to the so-called general defence of necessity in the common law. On the other hand, I find it impossible to lay down any general principle in the matter. All that the Courts can do is to consider such circumstances of alleged justification as are from time to time submitted to them for decision. They must then make a ….judgment as best they can, bearing in mind, as I earlier said, the purposes of the legislation, on the one hand, and on the other the fact that s183 does not declare that all abortions are unlawful.”

It must be recalled that the majority in Woolnough accepted as not incorrect that the test for whether or not the use of an instrument is unlawful in terms of s183 is whether it is “necessary to preserve the woman’s life or health.” If the abortion was necessary to preserve the woman’s life or health, then that would not be unlawful. It is, therefore, for the prosecution to show as an element of the offence whether the abortion was necessary to preserve the life or health of the woman. So where can necessity come in as a defence when the statute, as interpreted by the Court, allows as not unlawful an abortion that was necessary to preserve the life or health of the woman. The statute does not purport to make all abortions unlawful, but allows as not unlawful those abortions which are necessary for the preservation of the woman’s life or health. It will, therefore, not be necessary to call in aid the common law defence of necessity to make lawful what is already made lawful by the statute itself. Necessity only applies to excuse an act that is unlawful, not an act that is lawful by statute.

In Smith and Hogan Criminal Law (1973) 3rd ed, the learned authors recognised a limited defence of necessity under s1(4) of the Abortion Act 1967 (UK). At p279 they said:

“A limited defence of necessity would seem desirable in principle. The defence would necessarily be limited in scope by the fact that, in the great majority of cases where it is necessary to procure an abortion, this is lawful by statute so that there is no room for the operation of any broader defence. But suppose that a qualified doctor who is not a medical practitioner and so does not come within the terms of s1(4) [of the Abortion Act 1967] above, forms the opinion in good faith that immediate termination of a pregnancy is necessary in order to save the life of the mother who is in a remote place and beyond the help of any registered medical practitioner. Is it the law that he must let the woman die when he could save her life by terminating the pregnancy?

In Bourne Macnaghten J, took the view that there was not only a right but a duty to perform the operation where a woman’s life could be saved only by the doctor procuring an abortion.” (italics mine)

This very limited availability of the defence of necessity recognised by Smith and Hogan Criminal Law (1973) 3rd ed does not apply to the present case because it relates to s1(4) of the Abortion Act 1967 (UK) and there is no such provision in Samoa. The situation concerning abortions carried out by registered medical practitioners to which s1(4) is directed does not exist in this case. In short, necessity does not apply to this case. But in case I am wrong in that view, I will consider the defence of necessity, as already explained, where it may apply to any of the charges in this case.

Does the test for determining whether an abortion is “unlawful” apply to a non-registered medical practitioner?

There are statements in R v Bourne [1939] 1 KB 687, which appear to suggest that the test for determining whether or not the use of an instrument to procure the miscarriage of a woman was “unlawful” applies only to members of the medical profession and not to professional or back-street abortionists. At pp691 – 692, Macnaghten J in making his direction to the jury on the question of burden of proof said:

“[You] will observe that it has nothing to do with the ordinary case of procuring abortion to which I have already referred. In those cases the operation is performed by a person of no skill, with no medical qualification, and there is no pretence that it is done for the preservation of the mother’s life. Cases of that sort are in no way affected by the consideration of the question which is put before you today.”

Further on at p694, Macnaghten J said:

“As I said at the beginning of my summing-up, it does not touch the case of the professional abortionist. As far as the members of the medical profession themselves are concerned and they alone could properly perform such an operation – we may hope and expect that none of them would ever lend themselves to the malpractices of professional abortionists, and in cases of this sort, as Mr Bourne said, no doctor would venture to operate except after consulting some other member of the profession of high standing.”

Similar statements were made in R v Woolnough [1977] 2 NZLR 508 where Richmond P said at p517:

“The purposes of the restrictions on abortion contained in s183 seem to me to be twofold. Clearly one purpose is to protect the life, or potential for life, of an unborn child. But I think a second purpose must also have been to protect the life and health of the mother having regard to the grave dangers which, until comparatively recent times, were attendant upon induced abortions. For the purposes of the present case this second factor may be regarded as virtually non-existent, having regard to the comparative safety of modern medical procedures when properly carried out by a qualified medical practitioner. I mention it, however, because it provides one justification for the Courts drawing a sharp distinction, as was indeed done in Bourne’s case, between therapeutic abortions of the kind with which the present case is concerned and the activities of so-called professional or back-street abortionists.”

In Bourne the accused was a consultant obstetrical surgeon of the highest skill in his profession; in Woolnough, the accused was a registered medical practitioner; in Sefanaia Bilovucu Tambua, the accused was a registered medical practitioner; and in Newton and Stungo, the accused Newton who was convicted was a qualified doctor and the accused Stungo who was acquitted was a qualified psychiatrist.

The accused in the present case is a qualified registered nurse with no specialist qualifications in obstetrics or gynaecology and with really no proper professional experience in the performance of an abortion to terminate the pregnancy of a woman. The question which arises is whether the test for determining whether or not the use of an instrument to procure the miscarriage of a woman is “unlawful” applies to her. This question did not directly arise for determination in any of the cases already referred to as the accused persons in those cases were all qualified medical practitioners. The only case available to the Court where the Judge dealt with this issue is R v Anderson [1951] NZLR 439 which was also cited by counsel for the accused. The accused in Anderson was a nurse and she was charged that, with intent to procure the miscarriage of the victim, she did unlawfully use an instrument, namely, a catheter on her in contravention of s221 Crimes Act 1908 (NZ),. The accused was convicted as charged. At p443 F.B. Adams J said:

“The question as to intent is broader than might appear. It is incumbent on the Crown to prove the intent specified in s221 – viz., the intent to procure miscarriage – but the word ‘unlawfully’ imposes on the Crown the burden of disproving another intent. According to R v Bourne [1939] 1 KB 687; [1938] 3 A11 ER 615, the meaning is that the Crown must show that the act was not done in good faith for the purpose only of preserving the life of the woman or girl, a formula, which as that case shows, may be satisfied even where there is no imminent danger of death. In that case, it is said (ibid., 691; 617) that only members of the medical profession can properly perform such an operation. If this means that they alone can require the Crown to prove that the act was done ‘unlawfully,’ it is, with respect obiter dictum. The requirement is universal. In general, it may be only in the case of a medical man that it will call for serious consideration; but it is nevertheless a question for the jury in every case.” (emphasis mine).

With respect, I agree with what is said by FB Adams J in Anderson that the formula for determining whether an instrument was “unlawfully” used to procure the miscarriage of a woman applies not only to numbers of the medical profession but also to persons who are not members of that profession but are being charged with the offence of procuring an abortion.. There is nothing in any of the statutory provisions on the crime of procuring an abortion which are in issue in this case which limits the application of such provisions to a particular person or class of persons. The words “every one” used at the beginning of s73A of the Crimes Ordinance 1961 clearly mean that the provision is to apply to any and every person. There is also no statutory requirement that the word “unlawfully” is to have one meaning in cases which involve members of the medical profession and another meaning in cases which involve other people. In saying this, I have not overlooked what is said in Woolnough by Richmond P that there is no complete formula which can meet all the circumstances which can arise from charges of proving an abortion, and that there may be variations in the formula to be applied depending on the circumstances of the case at hand.

Facts

The facts of this case are contained in the cautioned statement which the accused made to the police, a letter written by the accused to the principal nurse of the nursing division at the Tupua Tamasese Meaole Hospital, the statements made by the victims and the other witnesses, called by the prosecution, to the police, and the two instruments which were produced as exhibits by the prosecution. All these statements and instruments were produced with the consent of the defence as part of the evidence for the prosecution. The accused elected not to give or call evidence.

I will first set out briefly the facts which are generally relevant to all the charges. These are contained in the accused’s cautioned statement, the accused’s letter to the principal nurse of the nursing division at the Tupua Tamasese Meaole Hospital and the statement by Dr Mase Toia Alama, the specialist obstetrician and gynaecologist who was called as an expert witness by the prosecution. I will then, as I deal with each charge separately, set out the facts which are specific to each charge. As I deal with the specific facts of each charge, I will apply thereto the relevant law to determine whether on the facts, each charge has been proved beyond reasonable doubt.

The accused is 33 years of age. She is from the village of Malie. In 1993, after three years training as a nurse, she graduated as a registered nurse. She told the police that her nursing training covered midwifery but she only worked in the maternity ward of the hospital for one or two months in 1994. She used to work at the out-patients department of the hospital. In 1999 she observed about three abortion operations which were carried out at the surgical unit of the hospital by doctors. These must be properly qualified doctors for the Court takes judicial notice of the fact that no one practises in the Tupua Tamasese Meaole Hospital as a doctor unless he is qualified as such. The accused also had occasion to observe a similar operation carried out by a private doctor in his own clinic using the instruments of duck speculum and uterine sound. So in all, the accused who has had no specialised training in obstetrics or gynaecology, but only a general training in midwifery during her training as a nurse, had only about four occasions to observe an abortion operation that was performed by a doctor. She also told the police that the abortions with which she has been charged were performed by herself using the same kind of instruments at the hospital, the homes of some of the victims, a motel, a government flat and other places. For these abortions she was paid by the victims various sums of $30, $50, $60, $70, $80, $100, $250 and $300. Even though the accused has been charged with sixteen counts for procuring abortion, she also told the police that she had performed abortions on twenty to thirty women. At the end of her cautioned statement, she apologises to the Ministry of Health and to the registered nurses of Samoa for what has happened for it has discredited the dignified name of the nursing service in the country. She also says that she feels she has done wrong and she is sorry for it. She prays for the registered nurses to forgive her wrongdoing. She also says in her letter to the principal nurse of the nursing division of the Tupua Tamasese Meaole Hospital that she is really sorry and apologises for giving the nursing service a bad name.

A statement by Dr Alama who was called by the prosecution, was produced in evidence by the prosecution with the consent of the defence. She says in that statement that she had been provided with statements and documents about this matter. On the basis of those statements and documents, Dr Alama says that the procedure which the accused was carrying out with increasing frequency was a surgical induction procedure which would induce abortion. She describes the process which is involved as introducing the uterine sound into the uterine cavity to induce bleeding or rapture the membranes or both. Either one of these would irritate the uterus and cause uterine contractions leading to opening of the cervix and expulsion of the products of conception. The procedure has the risk of infection and can even lead to the death of the woman. Dr Alama further says that the accused had also introduced a foleys catheter which was inserted and left in situ until it fell out. Being a foreign body, the presence of the foleys catheter in the cervix and uterine cavity will irritate the uterus causing uterine activity. According to Dr Alama, the surgical induction procedure which was applied by the accused would have exposed the women to very high risks of bleeding and infection. The risks of infection would be even higher with the introduction of the foleys catheter and leaving them in situ. She gave her opinion that the procedure used by the accused was very dangerous indeed and could have resulted in loss of life. It is to be observed here that the charges against the accused make no mention of a foleys catheter. Perhaps this is an oversight by the prosecution.

I will turn now to deal with each of the charges against the accused. In doing so, it is to be noted that I had granted the application by the prosecution, not objected to by the defence, that the names of the victims be suppressed. I will therefore refer to the victims by the letters of the alphabet instead of their real names. I will also deal with the charges in the sequence by which they occurred starting with the first one that occurred until the last one to take place.

Charge No 1

Here the accused is charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Malie between the 1st day of April and the 30th day of July 2000, she unlawfully used on victim A instruments, namely, a duck speculum and a uterine sound, with intent to procure A’s miscarriage.

According to A, who was 32 years of age at the material time, she tried in May or June 2000 to have her pregnancy terminated because of her limited financial resources. I take this to mean that she has limited resources for raising another child. A girl who works with her at the Tupua Tamasese Meaole Hospital then mentioned the accused. A then met with the accused and discussed with the accused what she wanted. The accused responded that she can terminate her pregnancy and the fee was $300. Two weeks later, the accused gave A some pills which she said would make A bleed. A took the pills which resulted in slight bleeding. Later, A had to go to the accused’s home at Malie where the accused used instruments, presumably a duck speculum and uterine sound, to terminate her pregnancy. A gave the accused only $40. However, the pregnancy continued and A gave birth to a child.

The two elements of the charge that the prosecution has to prove beyond reasonable doubt are: (a) that the accused intended to procure the victim’s miscarriage, and (b) that the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or health. As already pointed out, the defence does not dispute the first element of the charge. It is clear from the evidence that the accused, by accepting the request from A for an abortion and using instruments on A to terminate her pregnancy, had the necessary intent. I am satisfied that the prosecution has proved the first element of the charge.

As to the second element of the charge, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. In her cautioned statement, it is clear that the accused has had no specialised training in obstetrics or gynaecology or in terminating a woman’s pregnancy. She has not even had first-hand experience in terminating a pregnancy through a surgical induction procedure. She had observed only four abortion operations carried out by qualified doctors, three in the surgical unit of the hospital and one in a private medical clinic. The accused, as a nurse, must have known that her knowledge and experience in performing an abortion was severely inadequate. She must also have know that it is the doctors who perform this kind of operation. She must also have known that this kind of service was available from the doctors for pregnant women. However, no mention of such service was made to A. The accused simply went ahead and performed an abortion operation on A. She also charged a fee of $300 which invites the inference that the accused performed this abortion on A for financial reward or merely to suit A’s convenience, and not for the purpose of preserving A’s life or health. In fact, there is no evidence that A’s life or health needed to be preserved. The reason given by A for requesting the accused to terminate her pregnancy was her limited financial resources. Dr Alama also testified that the surgical induction procedure used by the accused on women would have exposed the women to very high risks of bleeding and infections. It was very dangerous indeed and could have resulted in loss of life. In other words, the procedure used by the accused is not in accordance with accepted medical practice. The accused, as a nurse, must have been aware of that, particularly as in her cautioned statement, she apologises to the Ministry of Health and to the registered nurses for bringing discredit to the good name of the nursing service in Samoa. She also says that she has done wrong and she prays for the registered nurses to forgive her wrongdoing. In her letter of 2 February 2003 to the principal nurse at the Tupua Tamasese Meaole Hospital, the accused also says she is sorry and apologises for giving the nursing service a bad name.

All of that evidence clearly shows that the reason for the abortion was A’s limited resources for raising another child and not for the preservation of A’s life or health. The evidence also shows that A was not acting in good faith when carrying out A’s abortion. The charging of a high fee and the procedure applied by the accused not being in accordance with accepted medical practice, suggest lack of good faith. In other words, the accused did not procure A’s miscarriage in good faith for the purpose of preserving her life or health. If the second element of the charge is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve A from serious danger to her life or physical or mental health, the clear answer is no. The abortion was carried out merely to suit A’s convenience, that is, the abortion was carried out because of A’s limited resources for raising another child, not to preserve A’s life or health, I am therefore satisfied that the prosecution has proved the second element of the present charge beyond reasonable doubt.

I turn now to the defence of necessity. Assuming, without conceding, that the defence of necessity raised for the accused applies in law to the present charge, it is clear that there was no imminent peril or danger to anyone. There was no emergency or any peril which was so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable. There was no peril to anyone that was on the verge of transpiring or virtually certain to occur. There was no harm to anyone that was unavoidable and near. The first element of the defence of necessity therefore does not exist in this case. The defence of necessity, therefore, cannot succeed.

All in all then, I find the first charge to have been proved beyond reasonable doubt.

Charge No 2

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Motootua between the 1st day of October and the 1st day of December 2000, she unlawfully used on victim B instruments, namely, a duck speculum and a uterine sound, with intent to procure B’s miscarriage.

According to B, who was 23 years of age at the material time, she used to work at the Ministry of Health. In the year 2000, she became pregnant by her boyfriend who is her own cousin. As a result, she became very afraid of her parents, particularly as her boyfriend was her own cousin. She then sought help from the accused on the advice of her boyfriend. The accused told her that the fee for the abortion was $300. The following week, the accused carried out the abortion operation on B in the out-patients department of the hospital using instruments. After the operation, B gave the accused $200. 

Again the first element of the charge is not in dispute. It is clear from the evidence that the accused, by carrying out an abortion on B and using instruments on B to carry out that abortion, had the necessary intent. I am satisfied that the prosecution has proved the first element of the charge. It is again the second element of the charge which is in dispute. 

As to the second element of the charge, B says that she was very afraid of her parents because she had become pregnant by her own cousin. She therefore wanted an abortion. On this evidence, it is not clear whether the abortion operation that took place was carried out for the purpose of preserving B’s life or health. For a girl to become pregnant by a cousin is a serious matter in Samoan custom and is usually frowned upon or regarded with contempt. I am left in doubt on this matter. Even if the second element is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve B from serious danger to her life or health, the evidence does not provide a clear answer one way or the other. The prosecution did not suggest any other test that is applicable to the present circumstances. The onus of proof is, of course, on the prosecution. That onus has not been discharged. The present charge is therefore dismissed. In view of that conclusion, it is not necessary to consider the defence of necessity raised for the accused, that is, assuming that defence applies in law to the present charge.

Charge No 3

The accused is charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Matautu-tai between the 1st day of January and the 30th day of March 2001, she unlawfully used on victim C instruments, namely, a duck speculum and a uterine sound, with intent to procure C’s miscarriage.

According to C who was 26 years of age at the material time and a company employee, she became pregnant in January or February 2001. Because she was afraid of her parents, she tried to find a way to terminate her pregnancy. She then asked a friend who works at the hospital for assistance and her friend referred her to the accused. C, her friend, and the accused then made a plan to meet at a motel where the abortion would be carried out. They used a room in the motel where the accused carried out C’s abortion using instruments which resulted in C bleeding. After the operation, C gave $200 to the accused for the fee she charged. At subsequent times, the accused used to go to C for money and C would give her $10 or $20 on some days. In her cautioned statement, the accused says that C’s friend contacted her if she could terminate C’s pregnancy and she accepted. The abortion was subsequently carried out at a motel and C gave her $200.

As to the first element of the charge, the defence does not dispute this element. It is clear from the evidence that the accused, by carrying out an abortion operation on C had the necessary intent. I am satisfied that the prosecution has proved this element of the charge beyond reasonable doubt.

As to the second element of the charge which is disputed by the defence, the evidence does not show whether the abortion was for the purpose of preserving C’s life or health. If the matter is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve C from serious danger to her life or health, the evidence again provides no clear answer. The prosecution did not contend that the second element of the charge is other than that set out in Bourne or Woolnough notwithstanding that in Woolnough, the majority of the Court refrained from providing a complete test for the word “unlawfully” that would meet the circumstances of every charge that may be laid under the New Zealand counterpart of s73A of the Crimes Ordinance 1961. The onus of proof is, of course, on the prosecution. That onus has not been discharged. The charge is therefore dismissed. This makes it unnecessary to consider the defence of necessity raised for the accused.

Charge No 4

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Motootua on the 22nd day of January 2001, she unlawfully used on victim D instruments, namely, a duck speculum and a uterine sound, with intent to procure D’s miscarriage.

According to D, who was 32 years at the material time, she is well acquainted with the accused. In January 2001, D asked the accused for help concerning her pregnancy. It was then decided that the accused would perform an abortion operation on D on 22 January 2001. The accused told D that her fee was $300. On that day, the accused carried out the operation in a room in the Tupua Tamasese Meaole hospital using instruments which belonged to the hospital. D said she felt pain during the operation and she was also bleeding. After the operation D gave the accused $100. D also said that on 1 February 2001, nine days after the operation, she felt pain in her stomach and she was bleeding. She was then taken to the hospital where she was admitted. D’s pregnancy was effectively terminated.

As to the first element of the charge whether the accused had the intent to procure D’s miscarriage, it is clear that the accused by carrying out an abortion operation to terminate D’s pregnancy had the necessary intent. The accused also did not dispute the first element of the charge. I am satisfied that the prosecution has proved the first element beyond reasonable doubt.

As for the second element of the charge, namely, whether the accused did not procure D’s miscarriage in good faith for the purpose of preserving her life or health, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. In my view, the evidence clearly shows that the accused did not act in good faith when she procured D’s abortion. But the question which remains is, was the abortion carried out for the purpose of preserving the life or health of D. To that question, the evidence does not provide any clear answer primarily because the evidence does not show any reason for D wanting to have an abortion. If the second element of the charge is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve D from serious danger to her life or physical or mental health, the evidence also does not provide any clear answer. In fact the appropriate answer would be, I do not know. The prosecution also did not contend that the second element of the charge is other than as set out in Bourne or Woolnough notwithstanding that in Woolnough, the majority of the Court refrained from providing a complete test for the word “unlawfully” that would meet the circumstances of any charge that may be laid under the New Zealand counterpart of s73A(1)(b) of the Crimes Ordinance 1961. The onus of proof is, of course, on the prosecution. In my view, the prosecution has not proved the second element of the present charge beyond reasonable doubt. It is, therefore, dismissed. In view of this, it is not necessary to consider the defence of necessity raised for the accused.

Charge No 5

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Matautu-tai between the 1st day of August and the 30th day of September 2001, she unlawfully used on victim E instruments, namely, a duck speculum and a uterine sound, with intent to procure E's miscarriage.

The only evidence adduced by the prosecution in relation to this charge is contained in the accused’s cautioned statement. In that statement, the accused says that E was working in the Ministry of Health when she contacted her. E wanted the accused to terminate her pregnancy. In August 2001, according to the accused, she carried out E’s abortion at a motel and she received $100 from E.

Whilst that evidence is sufficient to prove the first element of the charge, it falls well short of proving the second element of the charge beyond reasonable doubt. This charge is therefore dismissed. I need not go further to consider the defence of necessity.

Charge No 6

The accused is here charged under s37A(1)(b) of the Crimes Ordinance 1961 that at Malie between the 1st day of August and the 30th day of October 2001, she unlawfully used on victim F instruments, namely, a duck speculum and a uterine sound, with intent to procure F’s miscarriage.

According to F, who was 28 years of age at the material time, she was working at the Ministry of Health when she became pregnant by her boyfriend who then started to show lack of interest in her. Members of the staff she was working with teased and mocked her that she was pregnant but her boyfriend was not marrying her. One day, F had a quarrel with another female staff member who was spreading stories about F’s pregnancy. It therefore came to F’s mind that she would commit suicide. However, she then decided to contact the accused and discussed with her the difficulties in relation to her pregnancy. It was then arranged that F would come to the accused’s home at Malie where the abortion would be carried out. That was done and F’s abortion was carried out by the accused at her home. F paid $150 for the accused’s fee.

As to the first element of the charge, I am satisfied from the accused carrying out the abortion of F that she had the necessary intent to procure F’s miscarriage which constitutes the first element of the charge. Accordingly, the first element has been proved. As to the second element of the charge, I am not satisfied beyond reasonable doubt that the prosecution has proved that the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving F’s life or health. On the basis of the Woolnough test whether it was necessary to preserve F from serious danger to her life or physical or mental health, I am again not satisfied beyond reasonable doubt even though the evidence given by F shows that she was contemplating suicide. Accordingly, the second element has not been proved. This charge is therefore dismissed. It will not therefore be necessary to go on to the defence of necessity.

Charge No 7

The accused is here charged under s37A(1)(b) of the Crimes Ordinance 1961 that at Malie between the 1st day of November 2001 and 1st day of January 2002, she unlawfully used on victim G instruments, namely, a duck speculum and a uterine sound, with intent to procure G’s miscarriage.

According to G, who was 27 years of age at the material time, and working in the Ministry of Health, she became aware in December 2001 that she was already pregnant as she had missed her menstrual period for two months. G became afraid of her family and contacted a friend who is a registered nurse for help. This friend mentioned the accused to G who contacted the accused the same day. Arrangements were then made between G and the accused for G to come to the accused’s home on a later date to have her pregnancy terminated. On that day, the accused carried out G’s abortion using instruments. G gave $100 to pay the accused for the service.

As to the first element of the charge, namely, whether the accused intended to procure G’s miscarriage, I am satisfied from the performance of G’s abortion that the accused had the necessary intent. The defence also did not dispute the first element of the charge. I find the first element of the charge to have been proved beyond reasonable doubt.

As to the second element of the charge, namely, whether the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or physical or mental health, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. As to the question whether the abortion was carried out for the purpose of preserving G’s life or health, the evidence does not provide any clear answer. If the second element of the charge was dealt with on the basis of the test applied by the Court in Woolnough, namely whether the abortion carried out by the accused was necessary to preserve G from serious danger to her life or physical or mental health, the evidence again does not provide a clear answer. The prosecution also did not suggest any other test other than the tests set out in Bourne or Woolnough, even though the majority in Woolnough refrained from providing a complete test for determining the meaning of the word “unlawfully” that would meet the circumstances of every charge that may be brought under the New Zealand counterpart of s73A(1)(b) of the Crimes Ordinance 1961. The onus of proof is, of course, on the prosecution. In my view, the prosecution has not proved the second element of the charge beyond reasonable doubt. It is dismissed. It is therefore not necessary to consider the defence of necessity raised for the accused, assuming that in law, that defence applies to the present charge.

Charge No 8

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961 that between the 1st day of January 2002 and the 28th day of February 2002 at Vailima, she unlawfully used on victim H instruments, namely, a duck speculum and a uterine sound, with intent to procure H’s miscarriage.

According to H, who was 24 years at the material time and working at the Ministry of Health, the accused terminated her pregnancy in January or February 2003 at her (H’s) home. The instruments used by the accused were identified by H as a duck speculum and uterine sound. That was all the evidence given by H in relation to the alleged abortion carried out by the accused.

As to the first element of the charge, I am satisfied that the accused, by carrying out the abortion on H, had the necessary intent to procure H’s miscarriage. As already pointed out, the defence does not dispute the first element of the charge. I find this element to have been proved by the prosecution beyond reasonable doubt.

As to the second element of the charge, the evidence adduced by the prosecution does not show that the accused did not procure H’s miscarriage in good faith for the purpose of preserving her life or health. The evidence also does not show whether the abortion was necessary to preserve H from serious danger to her life or physical or mental health. The evidence simply shows that an abortion was carried out by the accused on H but it does not show whether it was done for the purpose of preserving H’s life or health or whether it was necessary to preserve H from serious danger to her life or health. No other test was suggested by the prosecution. The onus of proof is on the prosecution. I am not satisfied that the prosecution has proved the second element of the charge beyond reasonable doubt. This charge is accordingly dismissed. In view of this, it is not necessary to consider the defence of necessity assuming that it applies in law to the present charge.

Charge No 9

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Tufuiopa between the 1st day of February and the 30th day of April 2002, she unlawfully used on victim I instruments, namely, a duck speculum and a uterine sound, with intent to procure I’s miscarriage.

According to I, who was 24 years of age at the material time and working in the Ministry of Health, she became pregnant in March 2002 by her boyfriend. She became very afraid of her parents. At that time, she had heard many stories about the accused as someone who could terminate pregnancies of women. She then contacted the accused about terminating her pregnancy. The accused told I about the date for the abortion and that her fee was $250. A week later, the accused carried out the abortion on I using three instruments. A week later, I was bleeding and her pregnancy came to an end.

As to the first element of the charge, namely, whether the accused intended to procure the victim’s miscarriage, it is clear from the evidence that by accepting I’s request for an abortion and carrying out I’s abortion, the accused had the necessary intent which constitutes the first element of the charge. The defence also did not dispute this element. I am therefore satisfied that this element of the charge has been proved reasonable doubt.

As to the second element of the charge, namely, whether the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or health, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. The evidence, I must say, does not show whether the abortion of I was carried out for the purpose of preserving I’s life or health. It is true that I says that she became very afraid of her parents when she became pregnant, and that appears to be the reason for her wanting an abortion. But such evidence falls well short of proving beyond reasonable doubt whether or not the abortion was carried out for the purpose of preserving I’s life or health. If the second element of the charge is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve I from serious danger to her life or health, the evidence again falls well short of providing a clear answer. The prosecution did not suggest any other test to be applied in this case. The onus of proof is, of course, on the prosecution. That onus has not been discharged. The present charge is therefore dismissed. In view of that conclusion, it is not necessary to go on to consider the defence of necessity raised for the accused, assuming that that defence applies in law to a charge under s73A(1)(b).

Charge No 10

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Motootua on the 24th day of February 2002, she unlawfully used on victim J instruments, namely, a duck speculum and a uterine sound, with intent to procure J’s miscarriage.

According to J, who was 21 years of age at the material time and was working in the Ministry of Health, she was staying with another family in the Apia area. She became friends with a boy of that family and she became pregnant by that boy. She became afraid of her parents and her family. So she looked for a way to terminate her pregnancy. Someone referred her to the accused. J says she explained to the accused her worries and concerns because of her pregnancy. On 24 February 2002 at the hospital, the accused carried out J’s abortion using instruments. The accused told J that her fee was $150 but J could only afford to pay $50.

As to the first element of the charge, namely, whether the accused intended to procure the victim’s miscarriage, it is clear from the evidence that by carrying out J’s abortion, the accused had the necessary intent which constitutes the first element of the charge. The defence also did not dispute this element of the charge. I am therefore satisfied that this element of the charge has been proved beyond reasonable doubt.

As to the second element of the charge, namely, whether the accused did not procure the victims’ miscarriage in good faith for the purpose of preserving her life or health, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. The evidence does not show whether the abortion was carried out for the purpose of preserving J’s life or health. If the second element is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve J from serious danger to her life or health, the evidence again does not provide an answer. The prosecution did not suggest any other test to be applied. The onus of proof is, of course, on the prosecution. That onus has not been discharged. The present charge is therefore dismissed. In view of that conclusion, it is not necessary to consider the defence of necessity raised for the accused.

Charge No 11

Here the accused is charged that at the Motootua Hospital between the 31st day of March and the 1st day of May 2002, she unlawfully used on victim K instruments, namely, a duck speculum and a uterine sound, with intent to procure K’s miscarriage.

The only evidence adduced by the prosecution in relation to this charge is contained in the accused’s cautioned statement. In that statement the accused says that in April 2002 she terminated K’s pregnancy in the orthopaedic unit of the Tupua Tamasese Meaole Hospital. For her service, K paid her $50 and 10 Tongan Paanga.

As to the first element of the charge, namely, whether the accused intended to procure the victim’s miscarriage, it is clear that by carrying out K’s abortion, the accused had the necessary intent which constitutes the first element of the charge. The defence also did not dispute this element of the charge. I am therefore satisfied that the prosecution has proved this element of the charge beyond reasonable doubt.

As to the second element of the charge, namely, whether the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or health, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. The evidence, I must say, does not show whether the abortion was carried out for the purpose of preserving K’s life or health. If the second element is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve K from serious danger to her life or her health, the evidence again provides no answer. The prosecution did not suggest any other test that is applicable. The onus of proof is, of course, on the prosecution. That onus has not been discharged. The charge is therefore dismissed. In view of this conclusion, it is not necessary to consider the defence of necessity raised for accused, that is, assuming that defence applies in law to this charge.

Charge No 12

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961, that at the Motootua Hospital between the 30th day of June and the 1st day of July 2002, she unlawfully used on victim L instruments, namely, a duck speculum and a uterine sound, with intent to procure L’s miscarriage. In framing this charge, the prosecution should have noticed that there is no day between the 30th day of June and the 1st day of July. Perhaps the charge should have been framed “on the 30th day of June or the 1st day of July 2000.”

According to L, who was 20 years of age at the material time and taking a diploma in nursing at the hospital, she became pregnant from her boyfriend. She then asked someone she knew at the hospital for help. That person mentioned the accused. That person then contacted the accused. Then in July 2002, the accused carried out the abortion of L in a room at the hospital. The accused told L that her patients paid for her service. L paid $70. L also says that the reason for the abortion was because she was afraid of her parents and family. In her cautioned statement, the accused says that when someone contacted her for an abortion to be done on L, she was told that L was very afraid and worried about her parents as she has not completed her nursing training.

As to the first element of the charge, namely, whether the accused intended to procure the victim’s miscarriage, it is clear that by carrying out L’s abortion, the accused had the necessary intent which constitutes the first element of the charge. The defence also did not dispute this element of the charge. I am therefore satisfied that the first element of the charge has been proved beyond reasonable doubt.

As to the second element of the charge, namely, whether the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or health, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. The evidence is not clear whether the abortion was carried out for the purpose of preserving L’s life or health. If the second element of the charge is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve L from serious danger to her life or health, the evidence again provides no clear answer one way or the other. The prosecution did not suggest any other test that is applicable to the present circumstances. The onus of proof is, of course, on the prosecution. That onus has not been discharged. The present charge is therefore dismissed. In view of that conclusion, it is not necessary to consider the defence of necessity raised for the accused, that is, assuming that defence applies in law to the present charge.

Charge No 13

The accused is here charged under s73A(1)(b) of the Crimes Ordinance 1961 that at the Motootua Hospital between the 31st day of August and the 1st day of October 2002, she used on victim M instruments, namely, a duck speculum and a uterine sound, with intent to procure M’s miscarriage.

According to M, who was 21 years of age at the material time and working in the Ministry of Health, she became pregnant by her boyfriend. She discussed her pregnancy with her boyfriend and told him that she wanted her pregnancy terminated as she was very afraid of her parents and family. M was then informed by a girlfriend about the accused. M talked with her boyfriend again and told him about the accused and that it was best that her pregnancy be terminated as she was very afraid of her parents. It was then agreed between M and her boyfriend that they would see the accused which they did in June 2002. The accused told them her fee was $300. In July M gave the accused $250 and another $50 was given to the accused in September after the abortion which was carried out by the accused on M in a room at the hospital. Instruments were used to procure the abortion.

As to the first element of the charge, I am satisfied that the accused by carrying out M’s abortion, had intended to procure M’s miscarriage. The defence also did not dispute the first element of the charge. I therefore find this element to have been proved beyond reasonable doubt.

As to the second element of the charge, namely, whether the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or health, counsel for the accused submitted that the prosecution has not proved this element of the charge beyond reasonable doubt. The evidence is not entirely clear whether the abortion was carried out for the purpose of preserving M’s life or health. If the second element of the charge is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion was necessary to preserve M from serious danger to her life or health, the evidence again does not provide an entirely clear answer one way or the other. The prosecution did not suggest any other test that is applicable to the present circumstances. The onus of proof is, of course, on the prosecution. That onus has not been discharged. The present charge is therefore dismissed.

Charge No 14

The accused is here charged that at Motootua on the 26th day of December 2002, she unlawfully used on victim N instruments, namely, a duck speculum and a uterine sound, with intent to procure N’s miscarriage.

According to N, she was 44 years of age at the material time and working in one of the government departments. She is married and have seven children. N says that she is always seriously sick when she is pregnant. However, it is clear that after having seven children, N still survived and working in a government department. N says when she became pregnant again in 2002, she again became very sick and she asked her sister who works at the hospital for help. Her sister mentioned the accused. N then discussed with her husband her wish to have an abortion as her husband knew she is always very sick during pregnancy. Then on Thursday, 26 December 2002, she went to the Motootua Hospital as required by the accused. She was directed into a room where she waited for the accused. When the accused arrived N told her she was seriously sick. The accused then carried out N’s abortion by inserting an instrument into N’s uterus and stirred her uterus. The accused told N that her fee was $300 but N had only $30 which she gave the accused. On 5 January 2003, N was bleeding at her family's place and she miscarried. In her cautioned statement given to the police, the accused admits to performing an abortion operation on N.

As to the first element of the charge, namely, whether the accused to intended to procure N’s miscarriage, it is clear from the abortion performed on N that the accused intended to prove the miscarriage of N. The defence also does not dispute the first element of the charge. I am satisfied that the prosecution has proved reasonable.

As to the second element of the charge, namely, whether the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or physical or mental health, counsel for the accused submitted that the prosecution has not proved this element beyond reasonable doubt. In view of the evidence, the relevant part of the second element to the present charge is whether the abortion which was carried out was for the purpose of preserving the victim’s physical health. The difficulty I have found here is that there is no medical evidence to show that N’s physical health required preservation. It is true that N is always very sick during pregnancy. But she has had seven children and survived. It must also be true that N is getting on in age. She was 44 years of age at the material time. The evidence shows that she was in a serious condition immediately prior to the abortion operation. However, in the absence of medical evidence, I am not sufficiently confident that her physical health required preservation and made it necessary to proceed with the abortion. In short, I am left in doubt. If the matter is dealt with on the basis of the test applied in Woolnough, namely, whether the abortion operation was necessary to preserve N from serious danger to her physical health, the evidence again does not put the matter beyond doubt. The prosecution did not suggest any test other than the tests set out in Bourne or Woolnough, even though the majority in Woolnough refrained from giving a complete test for determining the meaning of the word “unlawfully” that would meet the circumstances of every charge that may be brought under the New Zealand counterpart of s73A(1)(b) of the Crimes Ordinance 1961. The onus of proof is on the prosecution. That onus has not been discharged. The charge is therefore dismissed. It is therefore unnecessary to proceed to the defence of necessity that was raised for the accused.

Charge No 15

Here the accused is charged under s73A(1)(b) of the Crimes Ordinance 1961 that at Motootua between the 1st day of November 2002 and the 30th day of January 2003, she unlawfully used on victim D instruments, namely, a duck speculum and a uterine sound, with intent to procure D’s miscarriage.

According to D, who was 23 years at the material time and attending the school of nursing, she became pregnant by her boyfriend in December 2002. She talked to her boyfriend about it and her boyfriend wanted them to get married. She replied that she was not prepared to have a husband as it would make her suffer. She wanted to do her nursing training first and then have a family. She then talked with her boyfriend about a way to terminate her pregnancy. Her boyfriend then said that he had heard of the accused who has an abortion business. They then saw the accused and discussed with her D’s pregnancy. The accused said that she performs abortions. Before Christmas, D and her boyfriend then went one night to the Tupua Tamasese Meaole Hospital where the accused was on duty at the time. They went with the accused into a room where the accused told D and her boyfriend to wait until the inspection visit by the nursing supervisor was finished. That was about 2am in the morning. After the inspection visit by the nursing supervisor, O, her boyfriend and the accused went into a room where the abortion operation was carried out. That was at 4am. The accused inserted a duck speculum inside O. After the abortion, the accused told O that she would have to wait for a week for any bleeding. After two weeks, there was no bleeding. A second abortion operation was therefore carried out and that one worked. Then one day when O went to the nursing school, the accused asked her for $50 for a faalavelave, O was only able to give to the accused $50. On another day, the accused asked O for a fare an O was only able to give $2.

In the written statement by O’s boyfriend which was produced in evidence by the prosecution with the consent of the defence, O’s boyfriend says that O told him that she did not want to give birth to a child because she was attending the nursing school and she was afraid of her parents. This evidence thus shows that O’s fear of her parents was one reason for her wish to have her pregnancy terminated. In her letter to the principal nurse of the nursing division of the Tupua Tamasese Hospital the accused says that she had saved the lives of many young females who were attending school. She did not care about the money which counsel for the accused submitted is confirmed by the fact that the accused did not chase up on her unpaid or partly paid fees. The accused also says in the same letter that she was worried about the common problem of committing suicide.

As to the first element of the charge, I am satisfied from the evidence of the two abortion operations that the accused carried out on O, that she had the necessary intent which constitutes the first element of the charge. However, I am not sufficiently confident that the evidence has established the second element of the charge. This charge is accordingly dismissed.

Charge No 16

Here the accused is charged under s73A(1)(b) of the Crimes Ordinance 1961, that at Motootua Hospital between the 1st and the 31st day of January 2003, she unlawfully used on victim P instruments, namely, a duck speculum and a uterine sound, with intent to procure P’s miscarriage.

According to P, who was 18 years of age at the material time and attending school as a student, she became pregnant by her boyfriend in November 2002. She became very afraid of her mother, her father had passed away. One day her mother asked her whether something had happened to her, but she lied to her mother as she wanted to hide her pregnancy from her. However, at a later day she decided to tell her mother the truth. So she told her mother that she was pregnant and she wanted to commit suicide. Her mother advised her not to do such a thing. Then one day, her mother told her to go and see the accused for an abortion. On 26 January 2003, the accused carried out an abortion operation on P at the hospital. The abortion worked and P’s pregnancy was terminated.

On these brief facts, I am satisfied that the prosecution has proved the first element of the charge which is not disputed by the defence. As for the second element of the charge, the test applied in Bourne and the subsequent English authorities would appear to say that if the evidence shows that the accused did not procure the victim’s miscarriage in good faith for the purpose of preserving her life or health then the second element of the charge has been established. I have already referred to evidence of lack of good faith on the part of the accused. However, the test applied in Woolnough is whether the abortion was necessary to preserve the victim from serious danger to her life or health. On that basis, the evidence clearly suggests that P wanted to commit suicide because of her pregnancy. So the evidence would seem to satisfy the test applied in Woolnough. But the provision in issue in Woolnough is virtually identical to s73A(1)(b) of the Crimes Ordinance 1961 which is the charging provision in this case. I am also conscious of the fact that in Woolnough the majority of the Court refrained from providing a complete test that would be applicable to every case brought under the New Zealand counterpart of s73A(1)(b). Given these difficulties, and the uncertainty arising therefrom, I have decided to give the accused the benefit of the doubt and dismiss this charge.

All in all then, charge no 1 has been proved beyond reasonable doubt. All other charges have not been so proved and are dismissed.

Concluding remarks

This case has revealed the complexities and uncertainties associated with the meaning to be given to the word “unlawfully” used in s73A(1)(b) of the Crimes Ordinance 1961. It is recommended that early steps be taken by the appropriate authorities to introduce amending legislation along the lines of s187A of the Crimes Act 1961 (NZ).

CHIEF JUSTICE
Solicitors:
Attorney General’s Office for prosecution
Leung Wai Law Firm for accused