Federal court of australia

IS APPREHENDED BREACH ESTABLISHED?

279 The next question is whether the evidence establishes a reasonable basis for an apprehension that the Minister’s duty of care to the applicant will be breached. In that regard an assessment of the standard of care that is required of the Minister needs to be undertaken. The well-known test explaining how a tribunal of fact should decide whether there has been a breach of duty of care is stated by Mason J in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47–48:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

280 Mason J further opined at 48 of Shirt that:

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable

281 The continued applicability of the “Shirt formula” has been reaffirmed in State of New South Wales v Fahy (2007) 232 CLR 486 at [7], [78] and [129]. Its proper application requires “a contextual and balanced assessment of the reasonable response to a foreseeable risk”: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [69] (Gummow J).

282 In applying the Shirt formula, I should first ask whether a reasonable person in the Minister’s position would have foreseen, or in the context of an allegation of a continuing tort would foresee, that his conduct will involve the risk of injury to the applicant. I will then turn to address what a reasonable person the Minister’s position would do by way of response to the risk. Involved in that is consideration of the magnitude and probability of any risk occurring. In that respect I observe that the seriousness of the foreseeable risk is a material factor in framing the requisite standard of care. As Dixon J said in Mercer v Commissioner for Road Transport and Tramways (New South Wales) (1936) 56 CLR 580 at 601:

In considering the extent and nature of the measures that due care demands, the first question must be the gravity, frequency and imminence of the danger to be provided against.

283 As I think the Minister’s submissions correctly surmised, the complaint about the conduct of the Minister relates to his failure to offer the applicant “something better” than the care that the Minister has to date procured or been prepared to procure. That alleged failure has two dimensions. First, the failure to procure for the applicant an abortion in a legal setting where she is not exposed to the risk of prosecution and conviction for terminating her pregnancy. Second, the failure to procure for the applicant access to a safe abortion or, more particularly, an abortion conducted utilising those resources identified by the applicant’s medical experts as necessary to adequately diminish the risk of physical and psychological injury to her.

18.Foreseeability, Magnitude and Probability of the Risks

19.Legal Setting

284 I will address, first, the issue of the legal setting and the risks posed by it to the applicant. It is inescapable that a reasonable person in the Minister’s position would foresee that to procure an abortion for the applicant in a legal setting that exposed the applicant to the risk of prosecution or conviction, involves a risk of injury to the applicant. There can be no question that a criminal prosecution would be prejudicial and injurious and it goes without saying that a conviction would be extremely injurious. The main basis for the apprehended breach based on legal setting is that the Minister has procured an abortion in Papua New Guinea. It is necessary, then, to focus on the legal setting provided in that country in order to consider the foreseeability and risk of injury to the applicant.

285 The Criminal Code Act 1974 (PNG) (PNG Criminal Code) makes it an offence to procure an abortion, other than in limited circumstances. Sections 225 and 226 deal with procuring a miscarriage, whilst s 312 refers to the offence of killing an unborn child. The terms of those provisions are as follows:

225. Attempts to procure abortion.

(1) A person who, with intent to procure the miscarriage of a woman, whether or not she is pregnant, unlawfully administers to her or causes her to take any poison or other noxious thing or uses force or any other means, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A woman who, with intent to procure her own miscarriage, whether or not she is pregnant-

(a) unlawfully administers to herself any poison or other noxious thing, or uses force or any other means or

(b) permits any such thing or means to be administered or used to her, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

226. Supplying drugs for instruments to procure abortion.

A person who unlawfully supplies to or procures for any person any thing, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether or not she is pregnant, is guilty of a misdemeanour. Penalty: Imprisonment for a term not exceeding three years.

312. Killing unborn child.

A person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

286 Section 280 of the PNG Criminal Code is also relevant in that it arguably provides, in limited circumstances, protection from criminal responsibility in relation to a surgical operation on an unborn child for the preservation of the mother’s life. That provision provides:

280. Surgical operations.

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation on–

(a) any person for his benefit; or

(b) an unborn child for the preservation of the mother's life,

if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case.

287 I do not accept that the risk to the applicant of being prosecuted and/or convicted of a breach of either s 225 or s 312 of the PNG Criminal Code is far-fetched or fanciful. I consider it real and to have been foreseeable. Why I have arrived at the conclusion that the risk is real will become apparent from the discussion which follows, and in particular, my consideration of the probability of the risk occurring. The facts show that the Minister was aware at the time an abortion in Papua New Guinea was procured, and remains aware, that the legality of an abortion performed is Papua New Guinea is not free from doubt. It is sufficient in that regard to refer to the terms of the First RMM and to the evidence of Mr Nockels that he knew “that there was a serious issue about legality”. With that knowledge and in the circumstances of procuring an abortion in Papua New Guinea for the applicant, a reasonable person in the Minister’s position would have foreseen a risk that the applicant may be exposed to prosecution and conviction by reason of her participation in an abortion in Papua New Guinea.

288 Having answered “yes” to the first part of the Shirt formula, it becomes necessary to consider “the magnitude of the risk and the degree of the probability of its occurrence”.

289 As to the magnitude of the risk, there can be no other answer than that the prejudicial consequences of the risk are high to extreme. The risk is a risk to the applicant’s liberty. It is a risk of imprisonment for a period not exceeding 7 years if s 225 is contravened or imprisonment for life if s 312 is contravened. Whilst I have identified the maximum sentences which may be imposed, I regard any risk of imprisonment as of great magnitude. I would include in that respect the risk that the applicant’s liberty may be lost if charged and not granted bail. Further, I would regard a prosecution for a contravention of either s 225 or s 312 as itself involving substantial injurious consequences for the applicant.

290 As to the degree of probability of the applicant being prosecuted and convicted, it is necessary first to consider the question of prosecutorial attitude. The evidence does not demonstrate that the provisions of the PNG Criminal Code dealing with abortion are there regarded as a “dead letter”.

291 The judgments of the National Court of Justice of Papua New Guinea in State v Leoba Devana (unreported, Bona J, 1 October 2015), The State v Moses Manwau (2009) N3797 and The State v Gwen Maika (2004) N2605, demonstrate the contrary.

292 Leoba Devana involved a prosecution brought under s 312 of the PNG Criminal Code. The accused was a 24 year old woman who used “Cytotec” tablets to induce an abortion. After she sought medical assistance, a report was made to police and both the accused and her husband were arrested and charged. The accused pleaded guilty and was sentenced to a head sentence of 4 years imprisonment, with 3 years of the sentence suspended on compliance with certain conditions. It is notable that Bona J observed at [25] that “a custodial sentence is warranted due to the community’s condemnation of the offence”. It is also notable that Bona J imposed a custodial sentence despite having accepted that the accused had been under pressure to kill the baby because of her genuine belief that her life was in danger. Bona J referred to the case of State v Charlice Lamete [2007] PGNC 1761 in which, in similar circumstances, the offender received a head sentence of six years.

293 Moses Manwau involved a doctor charged with killing an unborn child in contravention of s 312. It was alleged that the doctor had induced an abortion for a pregnant 14 year old girl. The reasons of Cannings J observed that the aunt and uncle of the girl in question had also been committed for trial on various charges for resolving to arrange the abortion. The doctor was acquitted.

294 In Gwen Maika, Cannings J dealt with an indictment presented under s 225(2) of the PNG Criminal Code. A complaint was made to police that the accused had deliberately procured a miscarriage by consuming “some raw egg and lemon grass”. A police investigation followed leading to the laying of the indictment. A provisional plea of guilty was entered but Cannings J indicated that he intended to consider whether he should exercise his discretion to enter a not guilty plea. A not guilty plea was subsequently entered on the application of the accused and the State offered no evidence. The accused was acquitted. Cannings J made the following observation at page 5:

Section 225(2) of the Criminal Code is one of a number of so–called morality crimes whose place in today’s statute book should perhaps be questioned by the legislature. I could find no record of any woman in Papua New Guinea ever having been convicted of such an offence.

Cannings J went on to suggest that the procuration by women of their own miscarriages ought be dealt with by guidance, counselling and caring rather than criminal sanctions. Those remarks were made in 2004. The cases to which I have referred and the continued applicability of ss 225 and 312 do not suggest that his Honour’s comments have had their desired effect.

295 In arriving at my view about the degree of probability of the risk of prosecution, I have taken into account the Minister’s submission that s 280 should be construed as providing a complete defence to any charge brought against the applicant pursuant to either ss 225 or 312. The difficulty for the Minister is that I am not persuaded that a contrary construction is not at least arguable. Nor can it be said, accepting the Minister’s construction to be correct, that s 280 will necessarily provide a complete defence because of the conditional nature of the exculpation provided.

296 It is to be observed that, by its terms, s 280 directly applies only to a person performing a surgical operation and not to the person (the woman) the subject of the surgery. Second, the excusing of the surgeon from criminal responsibility is conditional upon:

(i) the operation being performed in good faith and with reasonable care and skill; and

(ii) the operation on the unborn child being necessary for the preservation of the mother’s life; and

(iii) the performance of the operation being reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

297 It is then necessary to consider what application s 280 was intended to have to conduct caught by ss 225 and 312. I think the better view is that it has application at least to s 225. But that view is not free from material doubt. For one thing, there is an oddity involved in the idea that s 280 excuses surgical intervention but not other medical intervention to procure a miscarriage. That tends to suggest that ss 225 and 312 were not in contemplation when s 280 was enacted.

298 Further still, it is necessary to consider how s 280 can have application to the criminal responsibility imposed upon the woman by ss 225 and 312. In that respect the Minister contended that both ss 225 and 312 made it an offence only if the things done to the woman or permitted to be done by the woman were “unlawful”. As a surgical procedure conducted pursuant to the conditions required by s 280 would not be unlawful, the Minister contended that the things permitted to be done to her by the woman would also not be unlawful. The argument has some attraction. I agree with the Minister’s submission that the PNG Criminal Code would operate somewhat perversely if the surgeon was excused but the woman was not. A court is likely to construe the provisions favourably to the woman in those circumstances. But again, the submission is not without its difficulties. It may be, contrary to the Minister’s construction, that the word “unlawfully” in s 225(2)(a) was intended to describe the legal consequence of the conduct once s 225 was applied to it rather than the conduct which enlivened the application of s 225. If that were not so, abortions (which seem to be the mischief which the provision seeks to avoid) could be easily procured without ramification. For instance, on the Minister’s construction, the use of force by a woman upon herself to induce a miscarriage would not be caught by the provision. The same may be said in relation to a miscarriage induced by the woman ingesting a substance not unlawful to ingest. The use of force upon oneself is not inherently unlawful. It would not be unlawful unless made so by s 225 or some other provision. Furthermore, the Minister’s construction would lead to odd results. The criminal responsibility of the woman would depend upon matters outside of her control. For instance, the failure of the surgeon to use “reasonable care and skill” to perform the operation would result in criminal liability for the woman.

299 All of those difficulties also attend the Minister’s construction in the application of s 280 to s 312. There is an added problem that, when used in s 312, the word “unlawfully” is arguably not modifying the word “prevents”, a matter crucial to the construction relied upon by the Minister.

300 To all of those uncertainties, the prospect that one or more of the conditions required by s 280 would not be fulfilled, has to be added.

301 Having said all that, I also take into account Dr Sapuri’s evidence of his experience of performing abortions regularly without legal consequence. Dr Sapuri expressed confidence that there would be no prosecution in relation to an abortion conducted at PIH so long as two obstetricians agreed that the termination was necessary to preserve the applicant’s life. That provides some evidence of the likelihood of prosecution in the setting of a private hospital. It is possible, although not stated by Dr Sapuri, that his confidence is in part based on a memorandum circulated in 1982 by the Acting Secretary of Health containing a legal opinion which suggested that s 280 would have application to s 225 (the memorandum did not consider s 312).

302 Perhaps for an abortion out of the public eye, Dr Sapuri’s confidence is well founded. But the applicant’s situation has been well publicised by this proceeding. That may have some consequence. I say that in particular in the light of the evidence before me of the following Departmental advice given to the Minister in January of this year:

Following advice received from the Department’s Acting Chief Migration Officer at the Australian High Commission in PNG, no discussions have been held with the PNG Government, including ICSA [a PNG authority], about the provision of termination services at PIH. All medical transfer cases to PNG, including the one termination case to date, are reported to ICSA as being for ‘medical treatment’ and the detail of the medical procedures to be conducted are not provided.

303 Why the Department considers that it is necessary to procure abortions “under the radar” of the Papua New Guinea government is not clear but nevertheless troubling, particularly given that the context in which that advice was given included the statement that the Department relies on PIH to ensure that any terminations it provides are in accordance with Papua New Guinea law.

304 On the evidence before me, I am not satisfied that there is no prosecutorial appetite in Papua New Guinea for the criminal prosecution of a woman involved in procuring a termination of her pregnancy. Nor am I satisfied that, in the circumstances in which an abortion has been proposed for the applicant at PIH, there is no real risk of a prosecution. Whilst the probability of a prosecution alone or a prosecution and consequent conviction of the applicant is, to my mind, very low, the risk cannot be excluded as far-fetched, or fanciful. Whilst very low, the risk is real.