R v. King 

59 NSWLR 472; [2003] NSWCCA 399
Download Judgment: English

The respondent was charged with maliciously inflicting grievous bodily harm to Kylie Flick with intent to do grievous bodily harm. Prior to the crime, the respondent and Ms. Flick engaged in a single act of consensual sexual intercourse after which Ms. Flick became pregnant. The respondent sought to persuade Ms. Flick to have an abortion, but after she refused the respondent attacked Ms. Flick, kicking and stomping on her in the stomach. Ms. Flick was taken to a hospital immediately, where an ultrasound was performed. No fetal heartbeat was detected and the fetus was delivered stillborn. Other than the harm done to the fetus, the assault on Ms. Flick did not inflict grievous bodily harm on her.

Respondent was charged with violation of §33 of the Crimes Act of 1900 (the “Crime Act”)_, where the word “person” was first included in the statutory language: “Wounding etc with intent to do bodily harm or resist arrest. Whosoever, maliciously, by any means… inflicts grievous bodily harm upon any person… with intent… to do grievous bodily harm to any person… shall be liable to imprisonment for 25 years.”

The respondent to the appeal moved for a permanent stay of proceedings in District Court.. Based upon a finding that the statutory language did not apply to assault upon an unborn fetus, a permanent stay on the proceedings was granted. That decision was appealed by the Director of Public Prosecution.

The Supreme Court held that, as a procedural matter, it was entitled to exercise discretion regarding whether a permanent stay on proceedings may be treated as a final judgment subject to appeal. The Court found that in this case, where permanent stay was originally sought by respondent, appeal was valid.

The Court determined that the issue in the case was whether, as a matter of statutory construction of s. 33 of the Crimes Act, the death of a fetus was capable of constituting grievous bodily harm to a pregnant mother. The Court found substantive, reversible error in the opinion of the District Court where that court inappropriately relied upon the decision R v. F (1993) 40 NSWLR 245, as precedent. The Court found that the relevant portions of that case had been subsequently overturned by the same court.

The Court examined case law from various countries. Although no previous holdings binding on the Court directly answered the question, the Court found that the UK House of Lords, in dicta of related decisions, endorsed the view that a fetus should be considered a “connected part” of the mother’s person, in cases of a criminal nature.  Conversely, the Court acknowledged a considerable line of cases in tort and family law adhering to the common law rule that injury to a person (including an unborn fetus) was only legally recognized once the child was born living, even if death resulted soon after. While finding this rule valid for those contexts, the Court observed that it resulted mainly from a practical interest in avoiding excessive litigation. From its review of case law, the Court noted that there was no clear rule as to whether the mother and fetus were considered as one or as separate; rather the answer depended on the “the particular legal situation under consideration including, where relevant, the scope, purpose and object of a particular statutory scheme.” (Paragraph 87).

The Supreme Court allowed the appeal, finding  it persuasive that, for the purpose of the offense at hand, the close physical bond between mother and fetus was such that the fetus should be regarded as part of the mother. The Court determined that the purpose of the law, which was to control violence between persons, was best served by acknowledging that the fetus was part of the mother as the contrary view would allow the aggravated form of the offense to depend on whether the fetus was born alive. The Court specified that the underlying logic of this holding should not necessarily be applied within family law and tort, and was limited to this matter of criminal statutory interpretation.

“The close physical bond between the mother and the foetus is of such a character that, for purposes of offences such as this, the foetus should be regarded as part of the mother. The aggravated forms of assault reflect the community's legitimate concern to control violence between persons. The greater the degree of injury, as compared with the result of common assault, the greater the community's concern. Where such enhanced injury is inflicted on a foetus only, I can see no reason why the aggravated form of offence should depend on whether the foetus is born alive. The purpose of the law is best served by acknowledging that, relevantly, the foetus is part of the mother.” Paragraphs 96-97.