Mehar Singh Bansel v. R.
Kenya, East African Court of Appeal

Mehar Singh Bansel v. R.

DATE 13-10-1959DOWNLOAD LEGAL DECISION

Judges:

Alastair Forbes

Alastair Forbes

Ralph Windham

Ralph Windham

Owen Corrie

Owen Corrie

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Topics:

Abortion

WHY IT MATTERS:

The East African Court of Appeal, defunct since 1977, heard appeals from national courts in Kenya, Uganda, and Tanzania on both civil and criminal matters. This case was appealed from the Supreme Court of Kenya.

At the time, the case was responsible for affirming a common law standard for permissible abortion. However, this Court is no longer in existence. There has also been subsequent constitutional reform in Kenya (2010), Uganda (1995), and Tanzania (1977, current reform process underway). Despite that, the case continues to hold persuasive value in the countries that were once bound by the East African Court of Appeals.

A surgeon was convicted of manslaughter in Kenya following an abortion-related procedure in which the woman died. At the trial level the case was heard by a judge with the assistance of assessors. Assessors provide non-binding opinions on the guilt of the accused. While the appeal technically rests on procedural challenges to the judge’s summary of the case and manner of questioning the assessors, it affirms the common law standard for legal abortion. This standard, echoing Rex v. Bourne, holds that abortion is permissible if the doctor holds the honest belief that an abortion is necessary to save the life of the mother or prevent “serious prejudice to her health.” The appellate bench upholds the conviction of the doctor, finding that even though the trial judge may have erred in some respects, none of the errors were significant enough to alter the verdict.
The facts, as summarized in the appeal, involve a pregnant woman who reported to the office of Dr. Mehar Singh Bansel. The doctor alleged that when she arrived, her trousers were soaked with blood and it appeared she had undergone a rudimentary abortion procedure. He testified that he needed to operate immediately to save the woman’s life. The prosecution called her mother to the stand, who stated she had seen her daughter earlier and that she seemed in good spirits and her clothes were not bloodstained. The prosecution used this information to argue that the woman had not earlier attempted to abort. The doctor called an anesthesiologist, who arrived and sedated the woman. Dr. Bansel then performed a dilation and curettage. The operation appeared to be successful. However, several hours later, when the woman was dressing to leave, she collapsed. She died about half an hour later. The doctor called a relative of the family to collect the body, and informed them they should report the death at a police station. When the autopsy was performed, the police pathologist noted a series of puncture wounds in the uterus and cervix. The doctor was then charged with manslaughter. The trial was conducted by a judge with the assistance of assessors. Assessors, like jurors, hear the facts of the case. Then, the judge provides a summation of the proceedings and poses questions to the assessors. However, unlike jurors, the assessors’ determination of the facts is not binding, and the judge may choose to disregard their findings in declaring guilt. Here, after a lengthy summation, the judge asked the assessors if they thought the doctor operated pursuant to a good faith belief that the woman’s life was at risk, and whether or not he performed the operation with gross negligence. They responded that the doctor did not honestly believe he needed to operate to save the woman’s life, and that the operation was performed with gross negligence. The judge then found the operation to be illegal, and convicted the doctor of manslaughter. The judge found the operation illegal because it did not meet the common law standard for permissible abortion. This standard requires the doctor hold the honest belief that an abortion must be performed to save the woman’s life or preserve her health. As a supplementary theory to support conviction, the judge stated that even if the doctor did believe the operation was necessary to save the woman’s life, he had performed the operation with such gross criminal negligence as to support a manslaughter conviction. The doctor appealed based on several procedural grounds. The doctor first alleged that during the summation the judge spoke prejudicially against a defense witness, made false statements, and inappropriately weighted certain testimony. The doctor second alleged that the trial judge did not ask the assessors for their opinion on ultimate guilt, as required by statute. Instead, the judge asked the assessors a more particular set of questions based on the elements of permissible abortion.
The judges first review the doctor’s complaints that the trial judge’s summation was inappropriate and prejudicial. For every potential problem raised by the defense, the judges find that there was no error, or if there was an error it did not harm the defense enough to affect the verdict. Second, the appellate judges decide whether or not the trial judge’s failure to ask the assessors’ for their opinion on the defendant’s ultimate guilt affected the verdict.

First the judges review the comments the trial judge made during summation about Dr. Eraj, a defense witness. This witness had supported the doctor’s diagnosis and had experience working with Indian populations in Kenya. During summation, the trial judge repeatedly insinuated he found the doctor untrustworthy. The appellate judges decide that these comments did not amount to a misdirection of the assessors.

The judges next review the defense assertion that the trial judge did not take into account the testimony of the anesthesiologist who was present at the operation. The anesthesiologist had concurred with the doctor’s assessment that immediate surgery was necessary to save the woman’s life. Here the appellate judges review the testimony and summation and decide that disregarding that testimony was acceptable, and even if it should have been taken into account, the testimony was not of sufficient significance to discredit the verdict.

Then the judges examine the portion of the summation where the trial judge recalls that a prosecution witness testified that the serrated curette used by the surgeon likely caused the puncture wounds found during the autopsy. The curette used by the surgeon was not serrated. However, the appellate judges decide that this characterization of the facts, while false, was not material.

The defense also raises the fact that the trial judge did not acknowledge that the woman’s mother was busy at the water tap when they saw each other earlier in the day. It was likely she did not look directly at her daughter, and therefore would have been unable to notice if her trousers were bloody. The appellate judges decide the failure to mention this fact during summation is not significant.

Lastly, the defense contested the trial judge’s suggestions during summation that he believed the defendant doctor to have behaved in a guilty manner following the operation. The appellate judges say that although the trial judge may have inappropriately stressed certain facts, there was no misdirection serious enough to overturn the verdict.

Thus the appellate bench dismisses all of the irregularities in the summation the trial judge issued before questioning the assessors. They then move on to the issue of asking the assessors if they believe the defendant was guilty of the crime of manslaughter. This question is required by statute. Instead, the trial judge asked the assessors a number of more particular questions, such as whether they believed the doctor felt he was saving the woman’s life, whether the doctor caused the uterine wounds, and whether they thought the doctor operated with gross negligence. They replied they believed the operation was illegal, that the doctor caused the wounds, and that the doctor operated with gross negligence.

The appellate judges recognize that the failure to ask whether or not the accused is guilty of the crime charged did violate the statute. However, according to Kenyan law, trial irregularities can only serve as a basis to overturn verdicts if they amount to a “failure of justice.” Here, they found the failure to ask the assessors their opinion on ultimate guilt to not rise to that level. They noted that even if the trial judge had asked the assessors their opinion on ultimate guilt, he is not bound by their opinion.

The appellate judges find that none of the grounds for appeal are valid and dismiss the appeal. The doctor’s conviction for manslaughter thus stands.
East African Court Of Justice.
East African Court Of Justice.
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