Regina v Emberson [1976] FijiLawRp 21; [1976] 22 FLR 117 (23 August 1976)

[1976] 22 FLR 117

SUPREME COURT

Criminal Jurisdiction

REGINA

v

FELIX ALEXANDER STANLEY EMBERSON & ANOTHER

Grant C.J.
23rd August, 1976

Criminal law — abortion — onus on prosecution to satisfy court beyond reasonable doubt that operation not carried out in good faith for purpose of preserving the physical and mental health of the patient.

A qualified doctor is fully entitled to carry out a therapeutic abortion which in his opinion constitutes a threat to the patient's physical and/or mental health. The termination of the pregnancy only becomes unlawful if the doctor does not form an opinion at all, or forms his opinion dishonestly. Provided that the doctor honestly and in good faith believes that the pregnancy should be terminated in order to safeguard the health of the patient, then he commits no offence even though his opinion is made in error. In arriving at his opinion, the doctor is entitled to take into account the social circumstances of the patient together with all other relevant factors. The onus is on the prosecution to satisfy the court beyond reasonable doubt that the operation was not carried out in good faith for the purpose of preserving the health of the patient.

The first defendant was charged with unlawfully using an instrument on a woman with intent to procure her miscarriage, and the second defendant was charged with knowingly assisting. The summing up substantially changed what had previously been believed to be the law on abortion in Fiji.

Trial in the Supreme Court on indictment for illegally carrying out an abortion. The relevant part of the summing up to the assessors is set out below:

GRANT C.J.: [23rd August 1976]—

It is now my duty to sum up. In doing so I shall direct you on matters of law and you must accept those directions. On matters of fact, however, it is for you to reach your own conclusions and should I express any opinions on the facts you are free to disregard them. After I have completed the summing up I shall adjourn so that you may retire and consider the case as a whole You should consult with each other and consider all the evidence and then form your own personal opinions which need not be unanimous. When you are ready the court will re-assemble and you will then each be asked whether in your personal opinion each of the accused is guilty or not guilty of the offence charged.