After less than an hour of deliberation late yesterday morning, the 12 Cairns citizens appointed to the jury for the trial of Tegan Leach and Sergei Brennan stood firm before Judge William Everson and delivered their verdict: not guilty on both counts.
Immediately there was sustained applause from the public gallery, which was filled with friends and supporters of the young couple, and pro-choice activists, who had continued their vigil for reform of Queensland abortion law for nearly four days outside the Cairns courthouse.
Thus ended an ordeal of more than 18 months for Leach and Brennan, who have been hounded from their home, had Molotov cocktails flung at their apartment and most difficult of all, had details of their private lives widely exposed on the internet ever since these charges were first reported in April last year.
Leach was charged under section 225 of the Queensland Criminal Code of 1899, becoming the first woman to be tried under this section, and probably the first woman in any Australian jurisdiction to face such a charge. Section 225 covers a woman who whether actually pregnant or not (since in 1899 there were no home pregnancy tests and women had simply to suspect or fear that they were pregnant) either permits another person to attempt to procure an abortion for her, or herself uses force or any “noxious” thing, or any other means, with the aim of bringing about an abortion.
Brennan was charged under section 226 of the Code with unlawfully supplying Leach with the means to procure an abortion — it was alleged that he had arranged for a relative in the Ukraine to post him tablets of the two drugs mifepristone (RU486) and misoprostol, together with instructions in their use; that he had then given these to Leach; and that she had used them to bring about an early abortion in the couple’s home in December 2008. These two drugs are those widely and safely used in many countries (and now to some extent used legally and safely in Australia) for the purpose of medical abortion.
These charges were not about the illegal importation of drugs into Australia. Brennan freely and frankly admitted that he had arranged their importation, pointing out that he knew the drugs to be legal in the Ukraine (where he was brought up) and in Russia; furthermore he believed that if they were not legal in Australia the Australian Customs would not have allowed the package into the country.
There was no attempt to smuggle these drugs — they were sent in their original wrappings through the regular postal system.
Nor were the charges about the dangers of using drugs for medical abortion without the supervision of a medical practitioner. Medical evidence was given to the court by Professor Nick Fisk, of the University of Queensland, who explained clearly and concisely that mifepristone and misoprostol are safe drugs but that there are occasional contra-indications to their use, and occasional complications from their use, and that a woman considering a medical abortion should have a consultation with an appropriate medical practitioner and access to emergency treatment if needed, as part of the procedure of medical abortion.
But as defence counsel eloquently pointed out on Wednesday afternoon, Tegan Leach did not find herself the subject of the close attention of the Queensland legal system because of concern on the part of the authorities about her health or safety. She was in court because she was charged with a crime apparently serious enough to warrant a penalty of seven years imprisonment.
The charges were initially brought by police, who were searching the couple’s apartment in Cairns in early 2009 on another matter (on which no charges have ever been brought against the couple). Empty blister packs of tablets and material written “in a foreign language” were discovered. Detective Sergeant Adrian Worth testified that he took these items to the Cairns Police Station; evidence was given to the court by a forensic chemist, showing that subsequent testing had confirmed the presence of mifepristone and misoprostol, consistent with the labels on the blister packs.
Some weeks after the search of the apartment, Detective Sergeant Worth interviewed Sergei Brennan and this interview was recorded. A DVD of the interview was played to the court on Tuesday afternoon, in the presence of Worth, the jury, both legal teams and members of the public. It lasted nearly an hour. Blinds were lowered to enable the screen to be clearly viewed, so we sat in a semi-darkness that gave a surreal and semi-p-rnographic quality to the scene as we watched Worth ask Brennan numerous pointed and detailed questions about intimate aspects of Tegan Leach’s health and life.
Leach herself was obliged to sit, silent, in the dock, while this discussion ranged about her. While I appreciate that all this was an integral part of the legal process that had been inevitably set in train by the initial police prosecution, I am appalled at the humiliation inflicted on this woman. Can the Queensland Premier and her government really believe that this was necessary, that the law should have been allowed to “run its course”, that the police and legal system do not have better things to do?
In their addresses to the jury, the defence counsel and the judge (and indeed the prosecutor) gave particular attention to the word “noxious” as used in section 225. The judge stated “that’s the trouble with these very old statutes” when he agreed with counsel that “noxious” may have had a particular meaning in 1899 (when medical abortion was unknown) but that such meaning is no longer relevant, or at least so clear, in 2010.
Professor Fisk on Wednesday stated that mifepristone and misoprostol are on World Health Organisation lists of essential drugs and that in no sense could they be described, in the 21st century, as “noxious”. The judge gave clear directions to the jury on the meaning of “noxious”, as “injurious or harmful” to the woman. He told them they would have to be sure “beyond reasonable doubt” that the drugs were “noxious” to return a verdict of guilty. After briefly returning to the court for a further direction from the judge, the jury re-appeared with their verdict.
While the verdict is good news for Leach and Brennan, what does it mean for reform of Queensland’s archaic abortion laws?
Twelve intelligent and thoughtful Queensland citizens have considered sections 225 and 226 of the Criminal Code and concluded that they are not relevant to women undergoing medical abortion in Queensland in 2010. I believe the jury’s decision reflects the opinion of the majority of Queenslanders that abortion should be a private matter for a woman, her partner, her doctor, and whoever else she may wish to involve, and not a matter for criminal prosecution. Abortion needs to be taken out of the Criminal Code and placed in the health regulations.
The Premier should seize this opportunity to explain to the people of Queensland that this very old law needs reform, and that she, the Attorney-General and the government will at once set about having new legislation drafted. If she feels she cannot do this herself, she should ask the Queensland Law Reform Commission to do so — that presumably is their job.
Quite apart from the irrelevance of the law to current views on women’s rights to access abortion, and to modern abortion practice, there is one very important medical reason emanating from the decision in the Leach and Brennan case that means this needs to happen, and soon. We know that an unknown quantity of drugs for medical abortion already enter the country, undetected, on a regular basis. These drugs are freely available from numerous internet sites, as well as via relatives and friends in countries where they can be bought over-the-counter or otherwise easily obtained.
After this week’s case, sections 225 and 226 are unlikely to be used again soon in the event of such importations being discovered (although certain Commonwealth laws might be.) But unless these sections are removed from the Criminal Code and the law reformed to allow Queensland women legal and accessible medical abortion, the decision may have the indirect effect of encouraging or at least not discouraging clandestine import.
Medical abortion with these drugs though generally safe for the woman does need oversight from a medical practitioner. Moreover drugs bought overseas or on the internet are not subject to the quality control, required by the Therapeutic Goods Administration, of drugs approved for marketing in Australia; they may not contain what they are supposed to, or may not contain a sufficient quantity to be effective, or may actually contain harmful substances. But women may feel compelled to try to obtain these drugs from overseas if they are unable to access abortion safely and legally where they live in Australia.
At the moment few Queensland doctors provide abortions — and one of the reasons is the uncertain legal status of abortion in the state. We urgently need decriminalisation of the current laws and the inclusion of sensible regulations in the health acts that would allow general practitioners, s-xual health physicians and others to provide early medical abortion to women making that choice for themselves in the event of unplanned pregnancy.
This is particularly the case for women in rural and remote areas of Queensland. Safe accessible medical abortion should be a straightforward option for Queensland women in 2010 — they should not be forced into the clandestine importation of drugs of uncertain quality from overseas.
For three days I have watched this young couple in court, watched them each day leaving the court, their heads held high, supporting each other. I am personally glad that this trial, and all it has involved, is over for them, and I wish them well in the future.
I sincerely hope that the Queensland government will now move to ensure that never again is such a prosecution brought in Queensland, by decriminalising abortion and thereby making it possible for safe accessible abortion services to be provided to all Queensland women who are faced with making a decision about unplanned pregnancy for themselves, and who choose abortion.
33 thoughts on “Cairns abortion trial: guarded optimism for reform process”
Gavin Moodie
October 15, 2010 at 4:23 pmGreat point Jonathan Maddox. I second his suggestion.
Paul
October 15, 2010 at 5:33 pmFrom Austlii:
“CRIMINAL CODE 1899 – SECT 225
225 The like by women with child
Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.
CRIMINAL CODE 1899 – SECT 226
226 Supplying drugs or instruments to procure abortion
Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years. ”
The author states “Twelve intelligent and thoughtful Queensland citizens have considered sections 225 and 226 of the Criminal Code and concluded that they are not relevant to women undergoing medical abortion in Queensland in 2010.”
Maybe the jury did conclude thus. We will never know. However in reaching a verdict the jury would have considered whether the substances in question or either of them constituted “a poison or other noxious thing” and if so whether the administration was unlawful.
nicolino
October 15, 2010 at 6:39 pmAnna Bligh may be pro choice but the majority of parliamentarians in George Street being men are against it. That’s the problem.Neanderthals win again.
John james
October 15, 2010 at 6:42 pmGo on Daniel , tell me what you really think.
Tegan’s a misunderstood girl, her boyfriend, well he’s just not ready for fatherhood.
I know, I know.
And the baby, oops, sorry, foetus, well there’s plenty more where IT came from.
This is liberation!
For the baby, oops, sorry foetus, well, no.
For Tegan, well, maybe, though those drugs have a bit of a kick.
Someone said a few girls died, but, no problems, eh Daniel?
Sergei, well he’s home free, ready to rock ‘n roll, with a pocket full of mifepristone for his next victim, oops, sorry, girlfriend, and baby, oops, sorry, foetus!
Daniel, that guy Sergei, what a man!!
Bit like you, mate!!
annamack
October 15, 2010 at 7:41 pmGreat article Caroline. A few of the response comments are mistaken however. Gavin, Damien and Nicolino: just because Premier Bligh and Attorney General Cameron Dick CLAIM the Qld Parliament doesn’t have the numbers for decriminalisation, doesn’t make it the case. In my estimation a Private Member’s Bill actually would get up. Premier Bligh uses the numbers claim as an excuse for her own lack of courage and commitment. She has also bludgeoned her own Parliamentary team into silence: not one of them (and there are many pro choice Qld MPs) will speak up. They didn’t speak up for Tegan and Sergei, they won’t speak up for women generally. They’re not anti abortion, just gutless.
Malcolm Street
October 15, 2010 at 8:47 pmSection 225 should go straight to the Queensland law reform commission at the very least over the obsolete definition of “noxious”. Bligh’s gutlessness on this matter has been disgusting. Bring on a private members’ bill to reform this ridiculous, absurd, obsolete and abused law – from the promptness of the jury’s verdict even if there is a Parliamentary majority against it all hell will break loose if this law is allowed to remain as a potential “gotcha”.
As others have said, just what was the motivation of Sergeant Worth. Was it anything other than pure harassment? Whose bright idea was it to prosecute under such an old and unused law? Did someone in the Qld government legal system set out to use this case to use Section 225 to ban legal abortion in the state?
John James – you are beyond deluded and disgusting. “For Tegan, well, maybe, though those drugs have a bit of a kick. Someone said a few girls died, but, no problems, eh Daniel?” And the risks from legal abortion to the woman concerned are far less than full-term pregnancy. Have a good look at Michael Dwyer’s post – making abortion illegal, ie returning to the moral paradise we had up until the early ’60s, doesn’t stop abortions – it kills women. Oh yes, and sets up a great line in police corruption. Nice to see how your post is all about Sergei and the foetus and stuff-all about the woman – says it all…
Elan
October 16, 2010 at 1:16 pmI’ll say it again:
I have always found it interesting that the abortion issue is described as ‘anti-abortion’, yet ‘pro-choice’ not pro-abortion. And pro-abortion it is. It is disingenuous to say otherwise.
If not, then why do we never hear from the pro-abortion lobby? Why is there such reluctance to ‘own’ to pro-abortion?
I am anti-abortion except in the most extenuating of circumstances (eg: rape or even multiple deformity-where the child is likely to face untold pain and difficulty in life). I will not wear the ‘ return to the backyard abortion’ excuse in the 21st century.
It disgusts me that a prominent feminist writer boasts about her three abortions!
_____________________________
But that is not the direct focus of this story is it?
This is about our ‘trust me, I’m a cop’ entering a home to find evidence on an unrelated matter, (which,- significantly in my view- was never pursued),-and finding the blister packs of these drugs;-pursuing that; resulting in the court case.
THAT is a bloody disgrace. The Judge it appears thought so;-the Jury thought so. They were right.
Of course that section (the whole) should be repealed. Don’t hold your breath!
However, I doubt very much that that section will be used again; this has set a precedent that will be hard to overturn in another prosecution.
Hugh (Charlie) McColl
October 16, 2010 at 1:31 pmANNAMACK and MALCOLM STREET, you both mention the possibility of introducing a private members bill into the Queensland parliament. Any member of parliament can introduce a private members bill – including any independent or member of the opposition. The fact that no one has done so says to me that no member of parliament in Queensland has any thoughts about changing the legislation. Not just Anna Bligh or Cameron Dick but the whole parliament. There is no evidence whatsoever that a private members bill would get up.
If the people of Queensland really want a change to the law then a political party needs to take that policy to the next election and let the democratic process do what the parliament itself will not do. But who creates the policy for the party to take to the election? Ah yes, the factions. The factions control the numbers and abortion law reform, like every other policy position, is simply an item on a balance sheet. To be bought and sold in deals between factions. You can flog off the QRNational rail system and we will control health policy or highway funding. Sick isn’t it? So what about some analysis and exposure of the abortion policy of each and all of the factions (ALP and LNP) embedded in Queensland politics. It can’t be that big a secret. This is where the agendas are hidden.
annamack
October 16, 2010 at 6:05 pmIn fact Charlie the Labor Party has good abortion policy, they re-affirm it at every State Conference and it’s been in place for many years. Put simply, it commits a Labor Government to abortion law repeal – they just refuse to implement their own policy. Of course any MP can introduce a Private Member’s Bill – former Labor MP Bonny Barry had intended to and was talked out of it by Beattie and Bligh. On Tuesday at the Cairns media conference she publicly apologised for failing to put the Bill and putting loyalty to her party above loyalty to her constituents. I believe most Labor MPs are pro choice and would support a Private Member’s Bill if their Premier allowed them to, which she will not.
If the ALP lacks the courage to implement their own abortion policy and no one has the spine to introduce a Private Member’s Bill, they should refer the matter to the Qld Law Reform Commission – and this time they should enact the recommendations. Can I recommend to you Caroline de Costa’s recent book ‘Never, Ever Again: Why Australian Abortion Law Needs Reform’?
Hugh (Charlie) McColl
October 16, 2010 at 8:05 pmYes, they should refer it to the Law Reform Commission but they haven’t and they won’t. So that route is blocked by either some of the Labor parliamentarians (for internal tactical reasons) or the factional heads who decide not to implement ALP policy – for their own tactical reasons. So those Labor members who you think would support a bill are never going to put up the bill themselves. They too put the Party (and their place in it) ahead of their constituents. It’s not that Anna Bligh won’t allow it, they just don’t want to make waves and they won’t.