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Couple to stand trial on abortion charges

By Siobhan Barry for The World Today
ABC News
Posted 5 hours 6 minutes ago
Updated 1 hour 44 minutes ago


For the first time in more than two decades a Queensland couple will appear in court on abortion charges.

Tegan Leach, 19, was charged with procuring a miscarriage after police searched her Cairns home in February on an unrelated matter.

Her 21-year-old partner, Sergie Brennan, was charged with supplying drugs or instruments to procure an abortion.

The prosecution had relied mostly on statements and interviews with the couple after their home was searched in February.

During the search, police found two blister packets that were empty and two empty sachets that had contained powder.

Those items were labelled as mifolian and misoprostol, which are both known abortion drugs, but both those sets of packets were empty so the items could not be tested.

In police interviews and statements the couple admitted Brennan had arranged for his sister to send two sets of drugs from Russia.

The couple admitted that Leach had taken those drugs and had experienced side-effects associated with a miscarriage after taking them.

The defence relied on a number of arguments.

Lawyers for the pair said there was no way of proving that the drugs Leach had taken were actually abortion drugs because no tests had been done on them.

The defence also argued that it could not in fact be proved that those drugs had caused a miscarriage, and that they could have had a placebo effect.

Magistrate Sandra Pearson said on the basis of the evidence before the court she thought there was sufficient evidence to commit both to stand trial, particularly on the evidence they had given to police.

Leach began to cry upon when told the couple would be committed to stand trial.

The couple declined to comment outside of the courthouse.

Pro-choice campaigners have issued a statement calling on the Queensland Government to change the state's abortion laws.

Meanwhile, Cairns obstetrician Dr Caroline de Costa says the committal is unfortunate for the couple who have already been through an ordeal.

"I think it is very, very unfortunate for them that their ordeal is going to continue," she said.

"They have been the subject of national and international attention for five months now and I feel very strongly for them and their families about what they still have to go through."

Viewed 11\09\09 at 15:55

What a ridiculas situation that a state in Australia still has these laws on its books. I think its time Queensland caught up to the rest of the country and the world.
 
What a ridiculas situation that a state in Australia still has these laws on its books. I think its time Queensland caught up to the rest of the country and the world.

I believe it is also illegal to import illegal drugs into the country in other states of Australia.

A CAIRNS couple who allegedly used illegally imported pills to terminate a pregnancy will face trial in the District Court.

http://www.news.com.au/couriermail/story/0,23739,26057787-3102,00.html

Emphasis added.

Are you suggesting that other States in Australia allow people to illegally import drugs from overseas? Does the same apply in other countries in the world?

The abortion laws in Queensland are sloppy, no one is denying that. They are left open to too much interpretation. Here is a brief breakdown of the laws that exist in Queensland and their brief history:

The child destruction offence in section 313(1) - 'preventing a child from being born alive'

Section 313(1) of Queensland's Criminal Code provides that it is a crime, 'when a woman is about to be delivered of a child,' to prevent that child from being born alive. There have been no cases in Queensland explaining when section 313(1) may be applicable.

The wording of this provision suggests it may be restricted to situations where delivery is imminent. If this is the case, section 313(1) might only apply to behaviour that kills a foetus late in pregnancy, when a pregnant woman is about to go into labour. On the other hand, there were some suggestions by McGuire J in R v. Bayliss & Cullen to the effect that section 313(1) may protect any 'viable' foetus, which would mean the Queensland provision would apply in the kind of situations covered by the Victorian, South Australian and English child destruction offences.(180) Whichever view is correct, it is not clear from the wording of section 313(1) whether its application depends on the foetus in question having the capacity to breathe (with or without medical assistance), or on it having a significant chance of longer-term survival, if it had been born instead of being killed at that stage.

The penalty for violating section 313(1) is life imprisonment.

A new foeticide offence in section 313(2) - 'destroying the life of an unborn child'

In 1996 the Queensland Criminal Code Advisory Working Group recommended to the Queensland Attorney-General that section 313 be amended by inserting new provisions to create a child destruction offence along the lines of the South Australian and Victorian offences discussed above. It was recommended that new subsections 313(2) and (3) be introduced to make it a crime to unlawfully assault a pregnant woman and destroy the life of 'a child capable of being born alive,' and to state that evidence that the woman had been pregnant for a period of 24 weeks or more would be prima facie proof that she was carrying a child capable of being born alive.(181)

These recommendations were adopted and incorporated into the Criminal Code Amendment Bill 1996 (Qld), the overall purpose of which was to 'update and streamline' Queensland's Criminal Code.(182) As well as proposing legal protection for a 'child capable of being born alive' from being killed, this Bill additionally proposed protecting such a foetus from grievous bodily harm and from the transmission of a serious disease.(183)

During passage of this Bill through the Queensland Parliament in March 1997, however, the relevant provisions were amended by replacing the reference to 'child capable of being born alive' with reference to 'a child.' The amendment also removed the reference to 24 weeks of pregnancy as the time at which there would be a presumption that this legal protection extended to a foetus.(184)

The amended section 313 came into effect on 1 July 1997. Thus it is now a crime under section 313(2) unlawfully to assault a pregnant woman and destroy the life of, do grievous bodily harm to, or transmit a serious disease to, 'the child' before its birth. The penalty for this new offence is life imprisonment.

There is no suggestion in this new provision that criminal liability is confined to the later stages of pregnancy. Arguably a 'child' for these purposes includes a foetus at any stage of its gestation, from the very beginning of pregnancy. This provision therefore may be best described as a foeticide offence rather than a new offence of child destruction.

The precise scope of the new section 313(2) foeticide offence remains unclear. It certainly would apply to the kind of behaviour that occurred in R v. Lippiatt, which indicates that it is unlikely that future cases involving violent assaults on pregnant women will result in prosecutions under the Queensland provisions that make unlawful abortion a crime.(185) It is less clear, however, whether the new section 313(2) could be applied in the context of medical abortion. Arguably the word 'unlawfully' in section 313(2) would limit its application in that context to those medical abortions that are already prohibited under the Queensland provisions that criminalise unlawful abortion, and thus to abortions that do not satisfy the test in R . v. Bayliss & Cullen.

http://www.aph.gov.au/library/pubs/rp/1998-99/99rp01.htm#codej

Medical abortions happen all the time in Queensland. When I found out I was pregnant with my first child, my GP clearly and concisely stated the choices available to me, one of which included a termination. In other words, you're not going to get arrested if you get an abortion. You will, however, be arrested if you illegally import abortion drugs from Russia and take them at home to bring about an abortion. I think that distinction needs to be made.

At present, the Queensland Government is in the process of clarifying the existing laws. The result has been death threats on the children of the Premier.

But that still does not take away the fact that people cannot import drugs into the country to bring about abortions.
 
bells, whats the penelty in any state for importing a drug? Any drug (not a prohibided substance of course) because as far as i know (and you could be right) the only penelty which would aplie in any other state would be the same as importing an antibotic rather than buying one through a pharmacy.
 
bells, whats the penelty in any state for importing a drug? Any drug (not a prohibided substance of course) because as far as i know (and you could be right) the only penelty which would aplie in any other state would be the same as importing an antibotic rather than buying one through a pharmacy.

Federal laws give a 10 year maximum sentence.

307.3 Importing and exporting border controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) the substance is a border controlled drug or border controlled plant.

Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.

Criminal Code Act 1995

You need to realise something. Queensland was the first state in the country that legally allowed a doctor to prescribe RU486.

The result of this couple's arrest and the DPP's decision to charge her with a little used law that existed in our criminal code (because she decided to do it herself with the drug her boyfriend had his sister send him from Russia, when she could have just gone to her doctor for a prescription or referral for a prescription) has resulted in Queensland doctors no longer prescribing it, until the Government redefines section 226 of our Criminal Code. It has been a hell of a long time before anyone was charged under this section of the law in Queensland. Doctors were prescribing drugs that had an abortificant affect and yes, some were performing abortions. Yet no one had been arrested for it.

This couple's actions were idiotic in the extreme. Why in the hell would you get someone to send you a drug you can get from a doctor?

The only good thing about it is that the Queensland Government is now looking at modernising the State's abortion laws.
 
The only good thing about it is that the Queensland Government is now looking at modernising the State's abortion laws.

The Premier, Anna Bligh, has said that her government will not introduce legislation to decriminalise abortion because she thinks that such legislation would not pass and that whatever legislation was passed could result in stricter restrictions on abortions rather than a liberalising of the law. (She personally supports the legalisation of abortion.)

She has said that the only way for such legislation to be introduced would be via a private member's bill.
 
The Premier, Anna Bligh, has said that her government will not introduce legislation to decriminalise abortion because she thinks that such legislation would not pass and that whatever legislation was passed could result in stricter restrictions on abortions rather than a liberalising of the law. (She personally supports the legalisation of abortion.)

She has said that the only way for such legislation to be introduced would be via a private member's bill.

You're right. But abortions are still available in Queensland. Doctors were prescribing pills to induce periods long before RU486 and they also performed abortions.

No one, since the 80's, has been chaged under section 226 of the Criminal Code for performing an abortion (medically). That should tell you something. Because of what this couple has done, doctors are now becoming hesitant, because of the fear that they could be arrested, when such a fear did not exist before.

There is a dire need for the legislation to be overhauled and yes, she has said she can't/won't over turn the law. But the discussions at the moment are centering around how doctors can be protected.

It's one of those things in Queensland that everyone knows you can get an abortion if you need or want one and in the past, the police and the DPP had always turned a blind eye to it. People have been charged for attacking or beating pregnant women. But medical abortions? The police knows it happens, as do the DPP, and doctors had not been arrested, nor women seeking a termination.
 
..they should have never admitted to it. Since they can't prove what substances were included in those sachets, every other argument about "illegal import of drugs, etc" would have been moot if only they would have never ..admitted to it. :shrug:
 
What a ridiculas situation that a state in Australia still has these laws on its books. I think its time Queensland caught up to the rest of the country and the world.

Afganisatan?

Oh, Myuu above, get a spellchecker, get a spellchecker! Yaarg!
 
bells, whats the penelty in any state for importing a drug? Any drug (not a prohibided substance of course) because as far as i know (and you could be right) the only penelty which would aplie in any other state would be the same as importing an antibotic rather than buying one through a pharmacy.

Speaking of Aussies illegally importing drugs for banned medical procedures, I read an interesting article in the SD Reader recently about Australian suicide tourism to San Diego/Tijuana. It's rather easy to get any pharmaceutical one wants in Tijuana, including the suicide drug of choice (which is apparently sold at veterenary outlets in TJ). And so there's a regular traffic of elderly and invalid visitors - largely from Australia, for some reason - that fly into San Diego, spend a couple of days on the beach, and then take a day trip to TJ to obtain suicide drugs. They then return to San Diego and fly back home with their drugs, hoping not to get caught along the way. There are apparently entire web sites detailing which drugs to get, where to get them, legal issues related to the whole process, advice on travel, etc.

Fairly crazy stuff...
 
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