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”
annamack
October 16, 2010 at 9:00 pmWomen can’t afford to be defeatist on this issue, it’s our lives and the lives of our daughters and granddaughters that are profoundly affected. The eventual outcome will depend very much on the strength of the campaign we are building. It actually IS that Premier Bligh won’t allow it Charlie – off the record some ALP MPs have admitted as much. They lack the backbone to stand up. Victoria and the ACT have achieved huge gains in recent years in furthering women’s abortion rights – long struggle…. many generations of women and (supportive) men. If you’d like to help, contact your local pro choice organisation, they’ll welcome your support.
Venise Alstergren
October 17, 2010 at 3:34 pmMy first comment was wiped by the moderator.
……………………………….
Under the present system of three governing bodies, Federal, State and Local it is virtually impossible to get any law on abortion or euthanasia passed with any certainty.
The Northern Territory passed the right to euthanasia, and the minute John Howard got into power he overturned it.
In Victoria abortion was decriminalised as a result of a conscience vote-the result was a vote in favour of the bill-by the narrowest of margins.
As the most vocal anti-abortion and anti-euthanasia people are Christian fundamentalists it might be worthwhile seeing how many Catholics make up the QLD parliament. If these people make up more than fifty percent of the parliamentarians then Anna Bligh has got Buckley’s of getting any pro-abortion or decriminalisation of abortion bill passed.
The most powerful man in QLD politics is Barnaby Joyce. This man is virulently Catholic and anti-abortion plus anti-euthanasia. Also, the people of QLD are infamous for their conservative opinions.
It grieves me to say this, but how are women-the tragics of religion-going to buck this system? All I know is that when VIC had its conscience vote the Age newspaper printed a list of the parliamentarians who voted- both those in favour and the ones who weren’t. The amount of names on the list of those who voted against the bill which were either Irish, or Mediterranean was frightening. It is these people who need convincing. Ask JOHN JAMES, the voice of the Catholic church in Crikey, he will willingly tell you.
The very fact that Anna Bligh refuses to start the process is indicative of where the strength lies.
ANNAMACK: Honestly I am not trying to depress you, I am completely on the side of pro-abortion. However, if the decriminalisation of abortion passed by the narrowest of margins in a relatively enlightened state like Victoria what chance does the same bill have in a state like Queensland?
Venise Alstergren
October 17, 2010 at 3:51 pmCAROLINE DE COSTA: You mentioned the drug RU486 being a banned substance.
When Tony Abbott was the minister for Health in the John Howard government he banned RU486. It took a conscience vote of the Federal government to revoke Tony Abbott’s interference-Tony Abbott had threatened to resign if he failed to get his own way. He didn’t!
How was RU486 a banned substance in QLD in the year 2010?
Gavin Moodie
October 17, 2010 at 4:52 pmThere may be people who are pro abortion, but I’ve never known of such a person. (Almost) everyone believes that abortion is extremely regrettable and should be minimised. The issue is: who should decide and on what grounds may abortion be justified?
Most believe that the decision should be made by the woman on whatever ground her conscience dictates. Many women contemplate an abortion but decide not to proceed. Others decide to proceed with an abortion. Since the majority believe that the woman should decide whether or not to have an abortion the majority’s position is correctly described as pro choice, not pro abortion.
John james
October 17, 2010 at 7:45 pmWell, on the occasion of the canonisation, Mary McKillop, a great Australian woman, its worthwhile reviewing some of the nonsense posted above, allegedly for the sake of women.
So lets begin with the worst and work our way down;
@malcolm street..”.. the risks to woman concerned are far less than full term pregnancy..”
Beware of Greeks bearing gifts, and beware of men protesting their concern for women, while urging them to swallow these poisons, and kill their unborn.
I mean, what utter nonsense!
Killing your baby is safer than having your baby.. pregnancy becomes a disease???
What sort of message is this?
God help any daughters you have, mate.
@ gavin moodie..” everyone believes abortion is extremely regrettable..”
Why?
..” and should be minimised..”
Do the figures suggest that abortion is being minimised?
Is there any circumstance in which abortion should not be permitted or done? I suspect the answer you’ll give is, no.
So, effectively, under the Victorian legislation model, you can kill an unborn baby, at any stage of the pregnancy, for any reason.
And that is exactly what is happening.
A Victorian consultative committee set up to monitor morbidity and trends associated with abortion reported a significant increase in late term abortion.
A Victorian MLC moved to set up an enquiry to investigate these trends and the facts as they were presented to the parliament. Brumby’s government blocked any investigation.
Leslie cannold is on tape, at a talk given to a Victorian neonatal medicine gathering indicating that babies born alive from late term abortion should be left to die. So we have neonates of 24-25 weeks gestation, born prematurley , being cared for in neonatal intensive care units, and babies of exactly the same gestation born alive from late term abortion, being left to die/killed.
This article suggests that abortion is good medicine, and the conduct of the couple in question was entirely appropriate.
There are no medical indications advanced for the ingestion of these drugs by this couple.
Without proper supervision these are very dangerous drugs.
The FDA protocol in the United States stipulates that before a woman undergoes this medical procedure, she must have an ultrasound done to ensure she does not have an ectopic pregnancy?
The FDA stipulates that there must be 3 visits, in total, by the woman to the supervising physician, that the two drugs should not be taken at the same time.
Did the young couple adhere to this? No way.
The trial judge poorly instructed the jury. The law is indifferent to whether the drugs was noxious, though it certainly is, Professor Fisk’s representations not withstanding
At least 12 young woman have died from this procedure, some have bled to death, and some succumbed to an infection that suggests their immune systems were compromised.
Back to Mary McKillop. She would have moved heaven and earth to assist a woman in distress, but the proposition that killing her unborn baby was a legitmate way to assist, would have horrified her.
Abortion, like slavery will one day be regarded as appalling, and those who championed it as akin to the 18th century slave traders.
I think they’re worse.
annamack
October 17, 2010 at 9:25 pmWell John since you feel so strongly about abortion, I’d suggest you never have one. But please don’t impose your views on the rest of us. And don’t tar Mary McKillop with the same anti women’s rights views you profess. Mary McKillop was a strong advocate for women’s rights and I believe you and she do not share similar values. Mary spoke up about child sex abuse by a priest – and was excommunicated for her trouble. Many of the high level pious Church men who sing her praises today would have been the first to condemn her years ago.
Your scaremongering about RU486 is just that John. Mifepristone has been used safely and effectively by MILLIONS of women in North America, France, Switzerland, the UK, Asia and New Zealand for the last 20 years plus. As the Cairns prosecution’s own expert witness, Nicholas Fisk, pointed out, mifepristone is a safe drug, not ‘noxious’ (this was crucial to the case). When used in combination with misoprostol, as used by the Cairns couple, mifepristone is even more effective. It’s a shame that your ‘concern’ for women’s safety does not extend to the many thousands of (mostly Third World) women who die every year because they cannot access safe, legal abortion. Do their lives mean nothing?
Australia lags behind other developed countries in making RU486 and misoprostol accessible to all women. To date, there are only 81 Authorised Prescribers of RU486 throughout Australia – only 4 in Queensland (Dr Caroline De Costa is one of them and pioneered its introduction to Australia – we owe you a huge debt Caroline). The limited access is why so many women believe their only option is to buy it online from overseas. But progress WILL be made over time.
To those who are pessimistic about abortion law repeal, do not underestimate women’s determination and resilience. As a young woman in the 70s I had to travel a thousand kilometres interstate to get a safe, legal surgical abortion – at least we now have clinics in Queensland. My daughter and granddaughter could now get a surgical abortion in their hometown if they ever needed one. When I was a young woman we had no domestic violence legislation, nor rape-in-marriage legislation, nor was rape of prostitutes a crime, nor could we use the term ‘Ms’, nor wear trousers to work. And I’m not 60 yet. On abortion, as on other issues, women will move forward, make no mistake.
John james
October 18, 2010 at 1:47 pm@ annamack..” Mary spoke up about child sex abuse..”
Lamenting child sex abuse, while championing the ultimate in child abuse, tearing them limb from limb, is par for the course.
That you see no contradiction in that position, given your history, is sad, but no surprise.
Venise Alstergren
October 18, 2010 at 3:08 pmGAVIN MOODIE: “”There may be people who are pro abortion, but I’ve never known of such a person. (Almost) everyone believes that abortion is extremely regrettable and should be minimised””
Stop splitting hairs. No one is about to make abortion mandatory. And, as a man WTF would you know about women’s suffering and problems?
JOHN JAMES: Got the concrete shroud firmly over your head?
“” “”Lamenting child sex abuse, while championing the ultimate in child abuse, tearing them limb from limb, is par for the course.”””
As is a Catholic who sends hate mail and photos of broken foetuses to scare the daylights out of parliamentarians when there is a conscience vote on abortion or euthanasia par for the course.
Tell me, it must be difficult for a blind catholic of rabid intent to use a keyboard; or do you have one with Braille lettering?
Venise Alstergren
October 18, 2010 at 3:26 pmANNAMACK: The reason why Tony Abbott was in a position to ban RU486 came about when John Howard was trying to get the initial Telstra bill though the house.
The Bill was failing to get through the Senate. In desperation Howard-who needed one more vote to succeed. Accordingly he got in touch with Brian Harradine, a Tasmanian senator and a rabid catholic.
“Sure,” said Harradine, “I’ll vote for the Telstra bill BUT on one condition.”
“What condition?” Asked Howard.
“On condition that you give Tony Abbott the health ministry”
“Done” said Howard.
Once there Tony Abbott was able to block any bill allowing women to be better off on the reproductive front. It took a conscience vote to undo Tony Abbott’s evil intent, and by the time the dust had settled the company making the drug lost patience with the bunch of backward church bashers we call our parliamentarians.
They withdrew the drug. And Tony Abbott wonders why he doesn’t get the female vote????
annamack
October 18, 2010 at 6:54 pmHi Venise
Yes I remember the Harradine deal (about 15 years ago) – similar to your memory but I think it was that Harradine agreed to the Telstra sell-off on condition that the Therapeutic Goods Act was amended to single out mifepristone as a drug that couldn’t be imported into Australia without special permission from the Cwealth Health Minister. I also remember the jubilation when the women MPs from the ALP, the Democrats AND the Liberal Party (not sure if the Nationals were involved) came together to overturn Harradine’s appalling amendment.
BTW John I’m a Catholic. Catholic women have abortions in the same percentages as their non Catholic sisters and Catholics generally support abortion rights in the same percentages as non Catholics. They just aren’t brave enough to speak up against the woman hating blokes in frocks who run the Church.