R v Waigana

[2012] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:

R v Waigana [2012] QSC 202

PARTIES:

R
v
WAIGANA, Augustus Edward
(Defendant)

FILE NO/S:

18/12

DIVISION:

Trial

PROCEEDING:

Ruling within a Trial

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

18 July 2012 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

17 July 2012

JUDGE:

Henry J

ORDER:

I reject the defence submission and find there is a case to answer.

CATCHWORDS:

CRIMINAL LAW – PRACTICE – where no case submission made – where the defendant was charged with killing an unborn child under s 313(2) of the Criminal Code 1899 (Qld) – whether the foetus that was destroyed was a “child” within the meaning of that offence provision – whether it was necessary for the foetus to be an unborn child capable of being born alive

Criminal Code 1899 (Qld) s 313(2)

COUNSEL:

RW Griffith for the Crown
RA East for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland)
Bruce Johnston

HIS HONOUR:  The defendant is charged with killing an unborn child on or about the 19th of December 2004 at Saibai Island.  The prosecution alleges that at a time when the defendant’s then de facto wife, Anai Dowani, was 15 to 18 weeks pregnant, the defendant assaulted her causing the miscarriage of the pregnancy.  At the conclusion of the prosecution case, defence counsel submitted there was no case to answer, advancing two separate arguments in support of that submission.  I have dealt with and rejected the first argument. 

The second argument, to which I now turn, is even if there is a case to answer that the defendant unlawfully assaulted his pregnant de facto wife and thereby destroyed the foetus with which she was pregnant, the foetus was not a child within the meaning of the offence provision, section 313(2) of the Criminal Code.

Section 313(2) provides:

"Any person who unlawfully assaults a female pregnant with a child and destroys the life of or does grievous bodily harm to or transmits a serious disease to the child before its birth, commits a crime.” 

The word "child" is not defined for the purposes of that section or generally by the Criminal Code. Other Acts in Queensland contain definitions of the word "child." See, for example, Acts Interpretation Act 1954 section 36, Youth Justice Act (formerly Juvenile Justice Act) 1992 schedule 4. However, their focus is the age at which a person ceases being a child, which is the opposite end of the temporal spectrum to that which is relevant here.

The defence submit that in the present context, the word "child" has an established legal meaning, that is, an unborn child capable of being born alive. It is submitted, in effect, that a child as referred to section 313(2) is a foetus of sufficient age to be capable of living independently of the body of its mother. If this submission is correct, there would be no case to answer because Ms Dowani's foetus was 15 to 18 weeks old and the expert medical evidence is that a foetus needs to be 24 weeks old to have a prospect of survival outside the mother, albeit that the prospect is at best only 50 per cent and considerably lower outside of a tertiary hospital.

The obstacles confronting the defence submission are significant. 

Firstly, section 313(2) contains no express qualification or implied qualification as to the age of the unborn child to which it refers.

Secondly, the legislature, in amending section 313 by introducing section 313(2) in 1997, specifically considered and rejected both the inclusion in section 313(2) of the qualifying words "capable of being born alive" and the inclusion of a provision at section 313(3) deeming evidence of pregnancy for 24 weeks to be prima facie evidence the unborn child was then capable of being born alive. In successfully moving the amendment of the bill to remove those inclusions, the Member for Gladstone said inter alia:

"It is my intention, as has been circulated, to move an amendment to that clause.  At the moment, an assailant of a pregnant woman will be held responsible for the death of the child only when the child is capable of being born alive and that has been defined as above 24 weeks …  I believe it is vital that children or foetuses - one can call them what one likes - of any age, have the protection of the law.  If a person assaults a woman pregnant, and as a result of that assault, the child dies, the assailant should be held accountable irrespective of the age of the child.  A child's life has been stopped because of the assault …  Offenders should count the cost before they do something that is wrong.  If they kill a child - the term viability has been used in the bill - the viability of the child has been terminated by the assault, irrespective of the age of the baby.  The viability has not been reached because of the assault." 

The legislature's specific rejection of a qualification of the kind the defence here seek to impose fortifies my conclusion that the section does not, by implication, contain such a qualification. 

Thirdly, the only line of case authority relied upon by the defence in support of its submission is that discussed in the R v Henderson [1993] NZLR 174. That case and authorities from other jurisdictions discussed within it turned upon statutory provisions which effectively contained deeming provisions regarding the period of gestation. As already explained, there are no like provisions bearing upon section 313(2). In short, such authority as has been advanced for the defence submission is not on point.

I would add that whilst the so-called common law meaning was referred to in the course of submissions, it became apparent the meaning the defence were developing was based upon the line of authority discussed in R v Henderson rather than some long-standing discrete common law meaning.  In any event, it is readily apparent that the section with which we are presently concerned is not an offence that was known in the common law. 

Section 313(2) falls to be considered in accordance with ordinary principles of statutory interpretation, at the forefront of which is context. In CIC Insurance Limited v Bankstown Football Club Limited [1997] 187 CLR 384, the High Court said:

"… the modern approach to statutory interpretation(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief, which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.  Instances of general words in a statute being so constrained by their context are numerous.  In particular, as McHugh J A pointed out in Isherwood v Butler Pollnow Proprietary Limited, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.  Further, inconvenience or improbability of result may assist the Court in preferring to the literal meaning an alternative construction which, by the steps identified above is reasonably open and more closely conforming to the legislative intent.” 

Further, in AB v Western Australia, [2011] 85 ALJR 1233, it was said at 10, "The modern approach to statutory interpretation uses context in its widest sense to include the existing state of the law and the mischief to which the legislation is addressed.”

The High Court's emphasis on considering not only context but the mischief the statute is intended to remedy is consistent in Queensland with section 14A(1) of the Acts Interpretation Act 1954 Queensland.

In this instance the purpose and meaning of the section is plain on its face. Section 313(2) is clearly intended to make it an offence to assault a pregnant woman and thereby destroy the life of, do grievous bodily harm to or transmit a serious disease to the life form with which the woman is pregnant. The mischief it addresses is the occasioning of harm via an assault on the pregnant female to the life forming within her. This does not impute any requirement regarding the likely fate of that life without her.

The use of the word child in section 313(2) when looked at in context is obviously a reference to the life form with which the female is pregnant. That much is made plain by the use of the words 'female pregnant with a child' in the first limb of the section and the words 'child before its birth' in the second. In this context the use of the word child to describe the life form with which the mother is pregnant does not suggest the life form must be capable of existence independently of the mother.

In the course of submissions, there was a philosophical argument advanced that to interpret the section as applying to the unborn child without reference to some stage of advancement has the consequence that it applies to the unborn child effectively from the moment of conception.  It was suggested this could herald significant evidentiary problems in a case where the pregnancy is less advanced than the present, which is dealing with a foetus, for instance, a case which involves a zygote. 

It is self-evident that the degree of difficulty in proving the cause of damage to the unborn life form during pregnancy is greater earlier in the pregnancy.  However that is of no apparent relevance to the interpretation of the section.  The sufficiency of evidence of causation is simply a matter for consideration on a case by case basis. 

In any event, it is unnecessary in the present case for me to express any concluded view as to this philosophical argument which relates to a much earlier phase of pregnancy than that with which I am here concerned. 

For the reasons already given, I reject the defence submission and find there is a case to answer.