R v Davidson
Encyclopedia
R v Davidson, also known (particularly among medical practitioners) as the Menhennitt ruling, was a significant ruling delivered in the Supreme Court of Victoria
on 26 May 1969. It concerned the legality of abortion
in the Australia
n state
of Victoria
. The ruling was not the end of the case, but rather answered certain questions of law
about the admissibility of evidence
, so as to allow the trial
to proceed.
In the ruling, Justice Menhennitt
ruled that abortion might be lawful if necessary to protect the physical or mental health of the woman, provided that the danger involved in the abortion did not outweigh the danger which the abortion was designed to prevent. It was the first ruling on the legality of abortion in any part of Australia. The principles put forward by Justice Menhennitt have since been drawn upon in other parts of the country.
of a woman, and one count of conspiring
to do the same, offences prohibited in the Victorian Crimes Act 1958. When Justice Menhennitt gave this ruling, the trial had been going for eight days. The prosecution
was about to call expert medical testimony, and Menhennitt anticipated that the admissibility of that evidence might be challenged, so he decided to rule on certain questions of law in advance.
The relevant section of the Crimes Act, section 65, stated that:
, the only subsequent change to this law is in the classification of the crime, from felony to indictable offence
. The remainder of the wording remains the same. Menhennitt discussed the background of the section, saying that it was drawn from an 1861 English
law, the Offences against the Person Act 1861
, which in turn derived from English laws from 1837, 1828 and 1803.
indictment
s. The word was not defined in any of those statutes, although in the United Kingdom
the Abortion Act 1967
had been passed in the meantime, which provided a definition of when abortions were lawful. That legislation had no equivalent in Victoria however, and "unlawfully" remained undefined.
that "no person ought to be convicted [of the crime of abortion] unless the jury are satisfied the act was not done in good faith for the purpose only of preserving the life of the mother." The trial judge said that first this was the appropriate definition of abortion at common law, and secondly that although particular wording did not appear in the definition of the crime of abortion, it did appear in the definition of the crime of child destruction
(which applies when a person kills a child during childbirth), and that the word "unlawfully" in the definition of abortion implied that the wording should also apply to abortion.
The trial judge continued, saying:
Justice Menhennitt described why the proviso from the definition of child destruction in the English legislation should also apply to the definition of abortion, by pointing out that under another provision of the same law, abortion was an alternative charge to child destruction and vice versa (that is, the jury could choose to substitute one charge for the other). As such, there was a strong argument to say that the same proviso should apply to both.
However, as Justice Menhennitt pointed out, the Victorian definition of child destruction (in section 10 of the Crimes Act) does not include the proviso in the English legislation; instead, it simply says "unlawfully". As such, that argument would not apply in Victoria, and "what is lawful and what is unlawful must be determined by other legal principles."
On this basis, although there were differences in the Victorian legislation, the definition in R v Bourne of "unlawfully" in the context of abortion could indeed be useful in Victoria, if recognised as an expression of the common law defence
of necessity
.
Justice Menhennitt discussed various definitions of necessity, noting that the concepts of necessity and proportion are usually present. He also quoted a test for necessity laid down by a previous decision of the Supreme Court of Victoria in R v MacKay, a case about the killing of an escaping prisoner:
In the context of abortion under Victorian law, this principle of necessity would mean that anyone performing a termination would have to have an honest and reasonable belief that conducting the termination was necessary to prevent some serious harm from occurring to the woman. Thus the test would be a subjective one, with the requirement that the beliefs be held reasonably.
The primary significance of the decision was that it referred to both physical and mental health of the mother as a factor in a lawful abortion.
The principles in the ruling were largely adopted in the state of New South Wales
by the District Court of New South Wales
in 1971 in the case of R v Wald, which also involved the prosecution of a doctor for performing a termination. That case expanded the definition slightly, by pointing out that "it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health" In the state of Queensland
, the principles in the Menhennitt ruling were cited in the 1986 case of R v Bayliss & Cullen. In the other states, and in the Northern Territory
(but not the Australian Capital Territory
), legislation has been adopted to define which abortions are legal and which are not.
In 1974, the Whitlam government
provided that Medibank (now called Medicare) benefits could be paid to women who underwent a termination procedure. In 1979, however, there was a motion in the Australian House of Representatives
from Stephen Lusher
to end medical benefits for terminations, and the debate spilled over to the legality of abortion. Although the decisions in Davidson and Wald were fiercely criticised by some members of parliament, who insisted that abortion was still illegal, others defended the validity of the decisions. Former Prime Minister
Billy McMahon said "it has been stated rather foolishly, by a member not very closely attuned to the law - that there has been no appeals. But there could have been an appeal. There was no restriction in either State, Liberal Country Party or Labor government as to appeal."
Despite some disquiet from the anti-abortion lobby, no appeals have been lodged against the Menhennitt ruling or the other decisions, and in most states there have been no successful prosecutions for consensual abortion since those decisions. Anti-abortion writers contend that most abortions remain illegal, and that the courts and the prosecutors are lax in protecting the rights of unborn children. Other commentators argue that calling abortion technically illegal is incorrect, or otherwise pointless, since that is "a meaningless category in law."
In 2008, after a conscience vote in the Victorian parliament, legislation reforming abortion laws was passed. The new law legalizes abortion on request up to 24 weeks pregnancy; after that time, two doctors must certify that they "reasonably believe that the abortion is appropriate in all the circumstances", with those circumstances encompassing "all relevant medical circumstances; and the woman's current and future physical, psychological and social circumstances."
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
on 26 May 1969. It concerned the legality of abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
in the Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n state
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
of Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
. The ruling was not the end of the case, but rather answered certain questions of law
Question of law
In jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
about the admissibility of evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
, so as to allow the trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
to proceed.
In the ruling, Justice Menhennitt
Clifford Menhennitt
Clifford Inch Menhennitt was an Australian jurist. He served as a Justice of the Supreme Court of Victoria from 1966 to 1979...
ruled that abortion might be lawful if necessary to protect the physical or mental health of the woman, provided that the danger involved in the abortion did not outweigh the danger which the abortion was designed to prevent. It was the first ruling on the legality of abortion in any part of Australia. The principles put forward by Justice Menhennitt have since been drawn upon in other parts of the country.
Background to the ruling
Charles Davidson, a medical doctor, was charged with four counts of unlawfully using an instrument to procure the miscarriageMiscarriage
Miscarriage or spontaneous abortion is the spontaneous end of a pregnancy at a stage where the embryo or fetus is incapable of surviving independently, generally defined in humans at prior to 20 weeks of gestation...
of a woman, and one count of conspiring
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
to do the same, offences prohibited in the Victorian Crimes Act 1958. When Justice Menhennitt gave this ruling, the trial had been going for eight days. The prosecution
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
was about to call expert medical testimony, and Menhennitt anticipated that the admissibility of that evidence might be challenged, so he decided to rule on certain questions of law in advance.
The relevant section of the Crimes Act, section 65, stated that:
Whosoever... with intent to procure the miscarriageMiscarriageMiscarriage or spontaneous abortion is the spontaneous end of a pregnancy at a stage where the embryo or fetus is incapable of surviving independently, generally defined in humans at prior to 20 weeks of gestation...
of any woman whether she is or is not with child unlawfully administers to her or causes to be taken by her any poison or other noxious thingMedical abortionA medical abortion is a type of non-surgical abortion in which abortifacient pharmaceutical drugs are used to induce abortion. An oral preparation for medical abortion is commonly referred to as an abortion pill....
, or unlawfully uses any instrument or other means with the like intent, shall be guilty of a felonyFelonyA felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
, and shall be liable to imprisonment for a term of not more than fifteen years.
, the only subsequent change to this law is in the classification of the crime, from felony to indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
. The remainder of the wording remains the same. Menhennitt discussed the background of the section, saying that it was drawn from an 1861 English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
law, the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
, which in turn derived from English laws from 1837, 1828 and 1803.
Arguments
The main issue to be considered was what the word "unlawfully" meant in this context. Justice Menhennitt noted that the inclusion of the word implied that some abortions might be lawful. The word "unlawfully" had also appeared in the earlier English legislation from which the Victorian law had derived, and the same word was also used in earlier common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
s. The word was not defined in any of those statutes, although in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
the Abortion Act 1967
Abortion Act 1967
The Abortion Act 1967 is an Act of the Parliament of the United Kingdom legalising abortions by registered practitioners, and regulating the free provision of such medical practices through the National Health Service ....
had been passed in the meantime, which provided a definition of when abortions were lawful. That legislation had no equivalent in Victoria however, and "unlawfully" remained undefined.
English precedent
The only case that had specifically considered what "unlawfully" meant in the context of abortion was a 1938 English case heard in the Courts of Assize, R v Bourne. In that case, Dr Bourne was charged with the crime of abortion under section 58 of the Offences Against The Person Act 1861 (the same section on which the Victorian law drew). During his summing up, the trial judge instructed the juryJury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
that "no person ought to be convicted [of the crime of abortion] unless the jury are satisfied the act was not done in good faith for the purpose only of preserving the life of the mother." The trial judge said that first this was the appropriate definition of abortion at common law, and secondly that although particular wording did not appear in the definition of the crime of abortion, it did appear in the definition of the crime of child destruction
Child destruction
Child destruction is the name of a statutory offence in England and Wales, Northern Ireland and Hong Kong. The offence of that name has been abolished and replaced in Victoria....
(which applies when a person kills a child during childbirth), and that the word "unlawfully" in the definition of abortion implied that the wording should also apply to abortion.
The trial judge continued, saying:
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.
Justice Menhennitt described why the proviso from the definition of child destruction in the English legislation should also apply to the definition of abortion, by pointing out that under another provision of the same law, abortion was an alternative charge to child destruction and vice versa (that is, the jury could choose to substitute one charge for the other). As such, there was a strong argument to say that the same proviso should apply to both.
However, as Justice Menhennitt pointed out, the Victorian definition of child destruction (in section 10 of the Crimes Act) does not include the proviso in the English legislation; instead, it simply says "unlawfully". As such, that argument would not apply in Victoria, and "what is lawful and what is unlawful must be determined by other legal principles."
Necessity
Justice Menhennitt then considered a discussion of R v Bourne by Glanville Williams, in his book The Sanctity of Life and the Criminal Law, in which Williams said:The judge's direction to the jury, which resulted in Mr. Bourne's acquittal, is a striking vindication of the legal view that the defence of necessity applies not only to common law but even to statutory crimes. It is true that the direction proceeded in some slight degree on the analogy of the child destruction statute, which contains an express exemption for the preservation of the life of the mother; but the exception in the one statute was not in itself a ground for reading a similar exception into the other.
On this basis, although there were differences in the Victorian legislation, the definition in R v Bourne of "unlawfully" in the context of abortion could indeed be useful in Victoria, if recognised as an expression of the common law defence
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
of necessity
Necessity
In U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when...
.
Justice Menhennitt discussed various definitions of necessity, noting that the concepts of necessity and proportion are usually present. He also quoted a test for necessity laid down by a previous decision of the Supreme Court of Victoria in R v MacKay, a case about the killing of an escaping prisoner:
...the test laid down by the law today for determining whether the homicide is justifiable or not is a twofold test which may be stated in this form: (1) Did the accused honestly believe on reasonable grounds that it was necessary to do what he did in order to prevent the completion of the felony or the escape of the felon? and (2) Would a reasonable man in his position have considered that what he did was not out of proportion to the mischief to be prevented?
In the context of abortion under Victorian law, this principle of necessity would mean that anyone performing a termination would have to have an honest and reasonable belief that conducting the termination was necessary to prevent some serious harm from occurring to the woman. Thus the test would be a subjective one, with the requirement that the beliefs be held reasonably.
Judgement
Justice Menhennitt decided in favour of using the principle of necessity to give substance to "unlawfulness" in this context. He expressed a test for deciding whether a termination would be unlawful or not in this way:For the use of an instrument with intent to procure a miscarriage to be lawful the accused must have honestly believed on reasonable grounds that the act done by him was (a) necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted.
Consequences
The trial proceeded, and Davidson was found not guilty by the jury on all five charges, on 3 June 1969.The primary significance of the decision was that it referred to both physical and mental health of the mother as a factor in a lawful abortion.
The principles in the ruling were largely adopted in the state of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
by the District Court of New South Wales
District Court of New South Wales
The District Court of New South Wales has jurisdiction to hear most indictable offences . It hears appeals from the Local Court and civil claims up to A$750 000. In some circumstances the amount may be higher, e.g. with the consent of the parties or in motor accident claims etc...
in 1971 in the case of R v Wald, which also involved the prosecution of a doctor for performing a termination. That case expanded the definition slightly, by pointing out that "it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health" In the state of Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, the principles in the Menhennitt ruling were cited in the 1986 case of R v Bayliss & Cullen. In the other states, and in the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
(but not the Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
), legislation has been adopted to define which abortions are legal and which are not.
In 1974, the Whitlam government
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
provided that Medibank (now called Medicare) benefits could be paid to women who underwent a termination procedure. In 1979, however, there was a motion in the Australian House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
from Stephen Lusher
Stephen Lusher
Stephen Augustus Lusher was an Australian politician. Born in Sydney, he rose to become Assistant Federal Director of the Country Party National Secretariat. In 1974, he was elected to the Australian House of Representatives, defeating Labor member Frank Olley for the seat of Hume...
to end medical benefits for terminations, and the debate spilled over to the legality of abortion. Although the decisions in Davidson and Wald were fiercely criticised by some members of parliament, who insisted that abortion was still illegal, others defended the validity of the decisions. Former Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Billy McMahon said "it has been stated rather foolishly, by a member not very closely attuned to the law - that there has been no appeals. But there could have been an appeal. There was no restriction in either State, Liberal Country Party or Labor government as to appeal."
Despite some disquiet from the anti-abortion lobby, no appeals have been lodged against the Menhennitt ruling or the other decisions, and in most states there have been no successful prosecutions for consensual abortion since those decisions. Anti-abortion writers contend that most abortions remain illegal, and that the courts and the prosecutors are lax in protecting the rights of unborn children. Other commentators argue that calling abortion technically illegal is incorrect, or otherwise pointless, since that is "a meaningless category in law."
In 2008, after a conscience vote in the Victorian parliament, legislation reforming abortion laws was passed. The new law legalizes abortion on request up to 24 weeks pregnancy; after that time, two doctors must certify that they "reasonably believe that the abortion is appropriate in all the circumstances", with those circumstances encompassing "all relevant medical circumstances; and the woman's current and future physical, psychological and social circumstances."