Under Australian law a foetus in utero cannot be the victim of any kind of homicide, regardless of the stage of pregnancy at which it is killed.(189) A foetus can only be the victim of murder or manslaughter if it is born in a living state. For these purposes, a child is born in a living state when it-but not necessarily the umbilical cord, placental tissue or afterbirth-is completely extruded from the pregnant woman's body.(190) Except in the Australian Capital Territory, and in New South Wales for murder prosecutions, a child need not have breathed to be considered born alive. Nor is it necessary that the child be viable in the sense that it has the capacity to stay alive.(191) A functioning heart is probably sufficient.(192) Birth includes surgical removal of the child from its mother, as in the case of birth by Caesarean section, as well as vaginal delivery.
Thus where a foetus is killed in utero in the course of an abortion there can be no prosecution for homicide.(193) The legal situation is different, however, where an abortion does not produce a dead foetus. The law of homicide may apply if the foetus is born alive according to the above definitions, but then dies as a result of its prematurity.(194) Authorities for this under English common law are the old cases R v. West (195) (which involved a murder prosecution) and R v. Senior (196) (which involved a manslaughter prosecution). A similar result was reached in a more recent case involving a manslaughter prosecution under the Queensland Criminal Code, R v. Castles.(197) In that case, the accused, who lacked medical qualifications, had attempted to abort a pregnancy of between 20 and 24 weeks by injecting warm water into her uterus. Two days later the pregnant woman gave birth to a child who apparently had breathed before dying two hours later. At the commencement of the trial, Lucas J of the Supreme Court of Queensland stated that although this was a 'most unusual indictment for manslaughter,' it was nonetheless one in which a verdict of guilty would have been open on the evidence given at the committal proceedings. The evidence subsequently presented to the court, however, introduced a reasonable doubt as to whether the child had in fact been born alive. Accordingly, Lucas J stated that the case should not go to the jury. He also expressed the view that it would have been more appropriate to have charged the accused with the crime of unlawful abortion, under section 224 of the Queensland Criminal Code.
