R v Davidson Case Note - case note for exam PDF

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R v Davidson Introduction In the Supreme Court of Victoria in 1969, Justice Menhennitt created a landmark ruling which established that an abortion will be lawful if the accused held an honest belief on reasonable grounds that the abortion was both 'necessary' and 'proportionate.' The Menhenitt ruling prescribed that, pursuant to section 65 of the Crimes Act 1958 (Vic), an abortion may be lawful on the grounds of necessity relating to a subjective test which requires the woman’s health or life to be in danger and that the actions are proportionate and reasonable. The Case The case concerns a man accused on four counts of unlawfully using an instrument with intent to procure the miscarriage of a woman and one count of conspiring to unlawfully procure a miscarriage of a woman.O The Crimes Act 1958 (Vic) s 65 states: "Whosoever...with intent to procure the miscarriage 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 thing, or unlawfully uses any instrument or other means with the like intent, shall be guilty of a felony, and shall be liable to imprisonment for a term of not more than fifteen years." Menhennitt considers the use of the word ‘unlawfully’ and it’s meaning. The section implies that in certain circumstances the use of an instrument or other means to procure a miscarriage may be lawful. As there was no set definition in the legislation, Menhennitt utilised precedent cases to determine the correct and most appropriate definition. He references R v Bourne, a trial of an eminent surgeon who openly terminated the pregnancy of a 14 year old girl who became pregnant as a consequence of an extremely violent rape. MacNaughten etsbalished that: 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." Mehennitt considers the legislation reviewed in Bourne, the Infant Life (Preservation) Act 1929,O which provided in s1 that an abortion is unlawful unless the person who procured it commissioned the crime in good faith for the purpose only of preserving the life of the mother. Menhennit agrees with the definitions and principles set out by MacNaughten,

stating that ‘unlawful’ must viewed reasonably and that child destruction can be negated, by reason of the word ‘unlawfully’, to a less grave crime of unlawful abortion.

Menhennit considers the defence of necessity by reviewing by Stephen in his Digest of the Criminal Law. Stephen describes the defence of necessity as "An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained." OMenhennitt establishes that while necessity is not a justification for every criminal act, the concept opf necessity is relevant o various branches of criminal law, including that relating to abortion. He finds that, in regards to the repeated use of the word ‘unlawfully’ in s 65 of the Crimes Act 1958 and the nature of the offence created and the history thereof in light of the authorities he reviewed, it is evident that necessity is the appropriate principle to apply when determining whether a ‘therapeutic abortion’ is lawful or unlawful within the meaning of s 65. The principles of necessity contains two elements of necessity and proportion. Menhennitt refers to R v MacKay which establishes that an act done must have been necessary and not out of proportion to the mischief. The case sets out a two-fold test for determining necessity and proportion. The test proposes two questions; (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?. Menhennitt then considers the test laid out in R v Tikos, which states that necessity is satisfied subject to the conditions imposed by the test in R v Mackay. Menhennitt agrees with the principles and tests in both cases, stating that the principles of necessity imported by the use of the word ‘unlawfully’ in s 65 of the Crimes Act 1958 imports the two elements of necessity and proportion. The element of necessity should apply in relation to unlawfulness in s 65. Menhennitt rules that, based on the principles of R v Bourne, the accused must have honestly believed on reasonable grounds that the act done by him was necessary to preserve the woman from some serious danger. In regards to the element of danger, he determines that the principle should not can confined to danger of life but should apply equally to physical or mental health provided that it is a serious danger not being merely the normal dangers of pregnancy and childbirth.

In regards to the two elements of necessity and proportion, Menhennitt rules that the test must be subjective, being held to a standard of ‘reasonable grounds’. His final decision on the law establishes that for an abortion to be lawful, the use of an instrument with intent to procure a miscarriage must have commission if the person honestly believed on reasonable grounds that the act was done as a necessary step to preserve the life of a woman from serious danger to her life or her physical or mental health which the continuance of the pregnancy would entail or the accused did not honestly believe on reasonable grounds that the act done by him was in the circumstances proportionate to the need to preserve the woman from a serious danger to her life or her physical or mental health which the continuance of the pregnancy would entail.

Ratio Decidendi The Menhennitt ruling established that an abortion will be lawful if the accused held an honest belief on reasonable grounds that the abortion was both 'necessary' and 'proportionate.' 'Necessity' in this context means that the abortion was necessary to preserve the pregnant woman from a serious danger to her life or to her physical or mental health, beyond the normal dangers of pregnancy and childbirth, that would result if the pregnancy continued. 'Proportionate' means the abortion was in the circumstances not out of proportion to the danger to be averted. Impact The Menhennitt ruling has had a lasting impact on abortion laws throughout all Australian jurisdictions. The primary significant of the decision was that it referred to both the physical and mental health of the mother as a factor in a lawful abortion. The principles in the ruling have been reiterated throughout other Australian courts, particularly in New South Wales by the District Court in the 1971 landmark ‘Levine ruling’ in R v Wald. R v Davidson paved the way for the ruling in R v Wald. The Levine ruling ultimately expanded the definitions set out by Menhennitt, confirming that the economic, social or medical circumstances of the woman could constitutes reasonable grounds upon which a medical professional could honestly and reasonably believe that the continuation of the pregnancy would result in serious danger to the woman’s physical or mental health. The case instigated public discourse surrounging the issue and legality of abortion, prompting law reform and social change. Based on the principles set out in R v Davidson, in 2008 the Victorian parliament passed legislation, the Abortion Law Reform Act 2008 (Vic), which leagisled abortion on request up to 24 weeks pregnancy. After the 24 weeks, 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....