Police v Apelu [2004] WSSC 7 (18 June 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

AKALITA APELU,
of Malie.
Accused

Counsel: R Schuster and L Petaia for prosecution
M Leung Wai for accused

Hearing: 8, 9 June 2003
Judgment: 18 June 2004

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JUDGMENT OF SAPOLU CJ

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The accused is charged with seventeen individual counts under s73A of the Crimes Ordinance 1961 for having unlawfully used an instrument on a woman with the intent of procuring her miscarriage. Each count relates to a different victim and a different incident of alleged abortion. All the incidents which are charged in the seventeen counts are alleged to have occurred on diverse dates from March 1999 to January 2003. The evidence which was adduced by the prosecution with the consent of counsel for the accused included statements given to the police by fifteen of the seventeen victims, the cautioned statement given to the police by the accused, statements made to the police by eleven other witnesses, and the instruments alleged to have been used by the accused to procure the abortions of the victims. It is to the credit of counsel on both sides and the procedure they chose to adopt that the evidence for the prosecution was completed in much less than two days.

At the close of the evidence for the prosecution, counsel for the accused made a submission of no case to answer in respect of all seventeen charges against the accused. The first part of the submission of no case to answer relates to the charges contained in information s605/03 and information s638/03. These are the two charges in respect of which the victims failed to appear to testify. Counsel for the accused submitted that there is no evidence to support those charges and they must be dismissed. Counsel for the prosecution on the other hand pointed out that the cautioned statement given by the accused to the police and produced in evidence contains admissions by the accused which support the charges in informations s605/03 and s638/03. There is no evidence which contradicts or otherwise weakens those admissions. In my view the first part of the no case submission cannot succeed.

The second part of the submission for the accused that there is no case to answer is essentially that in respect of all charges against the accused, the prosecution has not adduced any evidence to show that the alleged use of instruments by the accused with intent to procure the miscarriage of each victim was ‘unlawful’ in the sense that it was prohibited by or contrary to some statutory provision. For a better understanding of this part of the submission for the accused, I will set it out in some detail.

Section 73A of the Crimes Ordinance 1961 which is the relevant offence provision provides:

“(1) Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to procure the miscarriage of any woman or girl, whether she is with child or not:

(a) Unlawfully administers to or causes to be taken by her any poison or any drug or any noxious thing; or

(b) Unlawfully uses on her any instrument; or

(c) Unlawfully uses on her any other means whatsoever.

(2) The woman or girl shall not be charged as a party to an offence against “ this section.”

All seventeen charges against the accused have been brought under s73A(1),(b) and counsel for the accused has submitted that the two elements of each charge the prosecution has to prove are: (a) that the accused had an intent to procure the miscarriage of a woman or girl, and (b) that the accused had unlawfully used an instrument on her. I agree that the two elements of each of the charges under s73A(1)(b) that the prosecution has to prove are, firstly, an intent on the part of the accused to procure the miscarriage of the victim and, secondly, his unlawful use of an instrument on the victim.

Counsel for the accused has further submitted that the word “unlawfully” or “unlawful” used in s73A(1)(b) is not defined in the Crimes Ordinance 1961 and should be interpreted to mean, prohibited by or contrary to a statutory provision. Counsel said this is the ordinary meaning of the word “unlawfully” or “unlawful.” Counsel has also invited the Court to consider by way of analogy the elements of the crime of manslaughter which are: (a) the accused must have committed an unlawful act upon the deceased, and (b) that unlawful act must have caused the death of the deceased. He says that the word “unlawful” used in the context of the crime of manslaughter means prohibited by statute or regulation. He then goes on to say that the prosecution has alleged that the accused has “unlawfully” used an instrument on the victims without referring to any statutory provision which makes the alleged use of the instrument unlawful or adducing any evidence to that effect.

With respect to the able, thoughtful and extensively researched submission by counsel for the accused, I am not able to agree with his conclusion that there is no case to answer against the accused on all seventeen charges. The first element of each charge was not in question. It is only the second element with regard to the meaning of the word “unlawfully” or “unlawful” that is in question.

It is correct, as counsel for the accused has pointed out, that the word “unlawfully” is not defined in the Ordinance. The legislature has not defined what it means by the word “unlawfully” used in s73A(1)(b). That does not mean that the word “unlawfully” has no meaning. It has a meaning. And it is the constitutional function of the Court to ascertain what the legislature means or intends by the word “unlawfully.” That is, of course, essentially what statutory interpretation is about. When the Court has ascertained the legislative meaning or intention behind a word used in a statute, it must pronounce that meaning. The performance by the Court of that constitutional function has traditionally been described as statutory interpretation or statutory construction, not judicial legislation.

Section 73A(1) is of course an offence provision. It creates what may, in short, be called the offence of “procuring an abortion”. Section 73A(2) reaffirms that s73A(1) is an offence provision by providing that a woman or girl “shall not be charged as a party to an offence against this section.” Obviously then the offence of procuring an abortion is a statutory offence created by s73A(1). For the Court to interpret or ascertain the meaning of the word “unlawfully” as it is used in s73A(1), will not, in my view, transform what is obviously a statutory offence into a common law offence. I also do not think that the Court will be creating a new common law offence, the offence is already there created by s73A(1) itself. The Court will only be engaging in its constitutional function of ascertaining what the legislature means by the use of the word “unlawfully”, which, of course, is statutory interpretation.

As a matter of statutory interpretation, it would appear that if s73A(1)(b) had simply provided, without using the word “unlawfully”, that everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to procure the miscarriage of any woman, uses on her any instrument, a complete offence would still have been created. That offence would be, using an instrument on a woman with the intent of procuring her miscarriage. This would mean every procurement of the miscarriage of a woman with the use of an instrument would be an offence. However, the use of the word “unlawfully” in s73A(1)(b) implies that the legislature did not intend that every abortion or every procuring of an abortion should be made an offence. Only a case where the accused has “unlawfully” used an instrument on a woman to procure her miscarriage would constitute an offence, but where the accused has not “unlawfully” used an instrument to procure the miscarriage of a woman that would not constitute an offence. Thus the purpose for the use of the word “unlawfully” in s73A(1)(b) would appear to be to show that not all abortions are unlawful; some abortions would be lawful. The difficulty is where to draw the line between what is a lawful and what is an unlawful abortion because the legislature has not, itself, drawn that line. It appears the legislature has entrusted to the Courts the task of determining where that line is to be drawn in each case.

Basically where I disagree with counsel for the accused is that he takes the view that as a matter of statutory interpretation, the word “unlawfully” in s73A(1)(b) means prohibited by or contrary to a statutory provision whereas I am of the view that even without the word “unlawfully” s73A(1)(b) would still have created an offence of procuring an abortion. The purpose of putting the word “unlawfully” in s73A(1)(b) is to show that the legislature does not intend all abortions to be unlawful. Some abortions would not be unlawful, for instance, those of girls who become pregnant from violent rapes or incests and they want to have an abortion. Other abortions would be unlawful.

Section 73A of the Samoan Crimes Ordinance 1961 is in general substantially the same as s183 of the New Zealand Crimes Act 1961. More specifically s73A(1)(b) of the Samoan Crimes Ordinance 1961 is identical in terms to s183(1)(b) of the New Zealand Crimes Act 1961 except that the Samoan provision uses the numeral “7” and the New Zealand provision uses the word “fourteen” to indicate the number of years which is the maximum term of imprisonment that can be imposed as a penalty. Without having to carry out any in-depth research, I am certain that s73A(1)(b) of the Samoan Ordinance was borrowed from s183(1)(b) of the New Zealand Act. New Zealand authorities which have interpreted s183(1)(b) would therefore be highly persuasive, though not strictly binding, on any interpretation of s73A(1)(b) of our own Ordinance.

In the case of R v Woolnough [1976] NZCA 51; [1977] 2 NZLR 508, the New Zealand Court of Appeal was confronted with the interpretation to be given to the word “unlawfully” used in s183(1)(b) of the New Zealand Crimes Act 1961. Richmond P who delivered the leading judgment for the majority said with regard to the meaning of the word “unlawfully” at pp515 – 516 after referring to the relevant English authorities:

“I shall now endeavour, as a matter of legal principle, to express my own view as to the effect which should be given to the word ‘unlawfully’ in s183. I completely accept that this word is one to which effect must be given. The difficulty is that the legislature has not attempted itself to give any direct guidance on the subject. When one turns to the common law very little assistance is to be found.”

Richmond P then referred to the proviso contained in s182(2) of the New Zealand Act and the extent of its applicability to s183 and went on to say:

“Nevertheless, and as a matter of commonsense, it must have been intended by the legislature that a bona fide intention to preserve the life of the mother would prevent an abortion from being unlawful under s183. The use made by Macnaghten J of the proviso in the English Act of 1929 has been explained by Glanville Williams (op cit) 152 as being an application of the common law defence of necessity but the extreme vagueness of necessity as a general defence in English criminal law is well known. Moreover that defence, if it exists at all, would be available in any event by virtue of s20 of the Crimes Act 1961.”

The next passage which follows from the judgment of Richmond P is in my view of particular relevance to the second part of the no case to answer submission for the accused. His Honour went on to say at p516:

“For myself, I prefer to take the view that, because of the way s183 is worded, it follows as a matter of necessary implication that the legislature has entrusted to the Courts the task of drawing a line between those abortions which are and those which are not unlawful. There being no real assistance to be derived from the common law in this respect it seems to me that this Court should approach the question having regard to the purposes of the legislation and also to the fact that Parliament obviously was not saying that all abortions are unlawful. I think that it would be wrong to confine the circumstances in which an abortion is justifiable by references to such authority as exists relating to the general defence of necessity in the criminal law.”

From this last passage it becomes particularly clear that Richmond P was approaching the question of what meaning was to be given to the word “unlawfully” in s183 of the New Zealand Act as purely a matter of statutory interpretation which the Court was entitled to do as part of its constitutional function which is to interpret the statutes enacted by the legislature. In the performance of this function, the Court in Woolnough was not, in my view, creating a common law offence for s183 had already created the offence of procuring an abortion. All the Court was doing was to ascertain the meaning of the word “unlawfully” as it is used in s183. For that purpose the majority of the Court, Richmond P and Woodhouse J, accepted that the test for whether or not the use of an instrument is “unlawful” within s183(1)(b) is whether it is necessary to preserve the woman from serious danger to her life or to her physical or mental health. As it was pointed out by Woodhouse J at p521, the issue is entirely one of fact. However, both Richmond P and Woodhouse J made it clear that they were not laying down a complete definition of the test to be applied for determining what is lawful or not lawful abortion in every case. Following Woolnough, the New Zealand legislature amended the Crimes Act 1961 by providing a definition of “unlawfully.” It is respectfully recommended that the Samoan legislature should take similar action.

It is also important to note from the passage cited from the judgment of Richmond P at p516, that the circumstances in which an abortion would not be unlawful, is not to be restricted to circumstances where the common law defence of necessity applies. Necessity as a common law defence would apply by reason of s.9 Crimes Ordinance 1961.

In my respectful view, this Court should accept the interpretation of the word “unlawfully” adopted by the majority, particularly by Richmond P, in Woolnough as the same interpretation to be given to the word “unlawfully” used in s73A(1)(b) of the Samoan Crimes Ordinance 1961. I also do not think that Woolnough was wrongly decided. It follows that I do not accept the submission for the accused that the word “unlawfully” must be taken in the context of s73A(1)(b) to be restricted to what is prohibited by law or contrary to law. I have already explained the purpose for the use of the word ‘unlawfully’ in s73A(1)(b) It further follows that I do not accept that there is no case to answer in respect of all charges because the prosecution has failed to show which statutory provision makes the alleged use by the accused of an instrument with intent to procure a miscarriage unlawful or to adduce evidence of such unlawfulness. I therefore do not accept the second part of the no case submission.

In spite of this outcome, I wish to thank counsel for the accused for his extensive research and citation of relevant authorities which I have found most helpful in coming to a decision in this matter.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for prosecution
Leung Wai Law Firm for accused