The principle of necessity
Justice Menhennitt & Australia’s Roe v Wade
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The designers of the Fourth Court in Victoria's Supreme Court had nothing so plain as the mere practice of law in mind; its whole effect is to inspire respect for, even dread of, the justice system. The ornate coffered ceiling is lofty. The gallery is supported by freestanding Doric columns. The judge's presence is magnified by a great elevated hardwood canopy, while the witness stand is a lonely circular island. Nearest of all courts to the cells, and thus the most secure, it has traditionally been the venue for the most public and most lurid of cases, such as those of Julian Knight and the Russell Street bombers. It was here that, on 30 March 1966, Ronald Ryan studied the sombre jurors about to give the verdict in his murder trial and muttered to his co-accused, Peter Walker: "I think we're in deep shit."
Yet no decision has ramified so powerfully as one just 14 months after Ryan's execution, in a case that occasioned little publicity, and on the crucial day none at all. On 26 May 1969, the front page of the Age proposed as the most pressing question for contemporary women ‘Are Ladies in Trousers Respectable?' The question resolved that same day by Justice Clifford Inch Menhennitt in the Fourth Court was what constituted a legal abortion. His answer was gradually echoed in each Australian state; in some states it has been reinforced by legislation, but not all: in Victoria as well as New South Wales and Queensland, abortion remains part of the Crimes Act.
No social issue in Australia, indeed, can have enjoyed majority public support so long as women's entitlement to safe, legal abortion - and such constant political irresolution. Ranks closed again this year when Victoria lurched towards decriminalisation by way of a private members' bill from Labor MP Candy Broad; Premier John Brumby averted a confrontation by directing the matter to the Law Reform Commission.
But then, this is what necessitated Menhennitt's ruling in the first place, political paralysis having left helpless patients at the mercy of an uneasy coalition of misfit medicos and corrupt cops. This is the story of how abortion became legal in Australia, while paradoxically remaining a crime. It involves several peculiar men, many frightened women and some decidedly ancient laws, including one of the oldest: the law of unintended consequences.
Not every conception is designed or desired. This being so, there has been a demand for abortion in Australia since colonial times, which doctors and others, for good and ill, have sought to meet. By the 1960s, the system had become relatively sophisticated. It was a poorly kept secret that many, and probably most, of Victoria's 3000 GPs knew where to direct women with unwanted pregnancies - often with a kickback for their custom. And while the popular image of illegal abortion remained seedy and furtive, by this time the overwhelming proportion of the annual 20,000 abortions were carried out by qualified physicians.
The burden of abortion's illegality was borne by women, who took huge chances in an industry where prices, standards and attitudes varied vastly. Doctors, by contrast, did rather well. Abortion's grey eminence in Melbourne was Dr John Heath, for almost 40 years a fixture at 94 Collins Street. Abortion had made him a wealthy and well-connected man. Heath not only forged a close friendship with Homicide chief Bill Mooney but found him a retirement role managing the doctor's rural property in Campbellfield, and he was said to have a line straight to the attorney-general, George Reid. Certainly, Heath seemed suspiciously secure in his activities. Police who called at his practice not only found it apparently forewarned, the premises entirely spotless, but forearmed, with a solicitor in attendance.
Heath was a law unto himself. One custom was pricing his services according to the quality of the patient's car: the better the vehicle, the more they could afford. Preparation for the procedure featured not advice or reassurance but a stern lecture about the patient's rights should they be questioned by police. The actress Sue Ingleton, then a student, recalls her state of panic after stumbling from the surgery in 1963 still retching from the anaesthetic: "I was expecting a policeman's hand on my shoulder any second and to be taken away in a paddy-wagon."
There were other veteran practitioners. Oldest was William Fenton-Bowen, a genial drunk with the audacity to operate at 456 Lonsdale Street, across the road from the Supreme Court. Most dedicated was Rodney Bretherton, following in his famous father Albert's footsteps, mixing radical gynaecology with radical politics at 341 High Street, Prahran. On the road, flitting from suburban kitchen table to kitchen table, was the mobile abortory of hardworking midwife Jean Field, AKA ‘Gracie Fields'.
By the mid-'60s, though, abortion's stronghold was discreetly wealthy East Melbourne. In Albert Street alone were former Prince Henry's Hospital general surgeon Lister Catchlove, at number 39, and the young Heath protégés Dr Peter Bayliss and Dr Max Sizeland, at 340. Nominally best qualified was the suave Dr Jim Troup, a member of the Royal College of Obstetricians and Gynaecologists, with his David Niven moustache, two-tone shoes, floral bowties and devoted mistress. His practice was an unlikely partnership with the fearless, impulsive and theatrical Peggy Berman, Melbourne's Mata Hari of maternity. The practice's phonebook entry hints at the extent of their industry:
1087 Hoddle St
If no answer ring 38 2181
11 George St
If no answer ring 38 2181
Unlikeliest of all in this East Melbourne clique was Dr Ken Davidson, an old Geelong Collegian trained at Melbourne University and then the Royal Women's and Royal Children's hospitals. A handsome, cultured, courteous man entering his fifties, Davidson's natural diffidence was deepened by a stammer. Women nonetheless seemed to flock to him: his sometime girlfriend was the society belle Janice Wakely, who had featured in the first issue of Australian Vogue and now ran a successful modelling agency. "He was the kind of bloke who women want to mother," recalls Peggy Berman's son Peter, then a law student. "All these glamorous girls seemed to want to look after him. I remember going to a party at his home and the whole room seemed to be full of Janice Wakelys. Made me think that maybe I should study medicine."
Davidson was no campaigner. Abortion simply suited his way of life, enabling him to work just two days a week from the unostentatious two-storey Victorian terrace at 106 Hotham Street he had bought for a princely £14,000 in 1964. And by the topsy-turvy standards of this shady world, this made him strangely appealing. "Some of the worst people around then were people on the Left who said it wasn't time [for legality]," recalls the feminist Beatrice Faust, who was turning an unflinching eye on the industry in researching her PhD:
The revolution would come, so why bother working up a sweat? Well, a woman who's pregnant can't wait for the revolution. Ken at least wasn't a hypocrite. He never pretended he was God's gift to the proletariat, never said he was doing it for anything other than money. It was just a means for him to maintain a very desirable lifestyle.
It is one of the many improbabilities of the Menhennitt ruling that the man in the dock should have been Ken Davidson: not a self-immolating martyr, but a genteel dabbler who drank milk for his ulcer.
Forty years ago, 7.30 on a Tuesday night was an Australian television institution. It was then that more than half the viewing audience tuned to Channel Seven for their weekly dose of Homicide. Filmed on location in Melbourne, it portrayed the Homicide Squad as a thin grey line between order and chaos, acting out plots developed in collaboration with Victoria Police. Homicide was often praised for dramatising social issues: prostitution, drugs, suicide, mercy killing. Yet in hindsight it may not be wholly coincidental that none of its 510 episodes touched on abortion - not coincidental because the force was up to its pork-pie hats in it.
Until the '60s, the Homicide Squad had mainly overlooked abortion, extorting tribute only when a matter needed ‘sorting out': a complaint, a charge, sometimes even a death. But its detectives became greedier, casting envious eyes on the spoils of the Vice Squad from prostitution and the Gaming Squad from illegal gambling dens and starting-price bookmakers; abortionists, meanwhile, grew more plentiful and more protective of their rackets. At Jim Troup's Hoddle Street surgery, corruption was a way of life, Peggy Berman distributing gratuities among a widening circle of police contacts, including consecutive Homicide chiefs Jack Matthews and Jack Ford, and even employing the wife of another Homicide detective, Martin Jacobson. Sealing the deal, as it were, she pursued an affair with Ford. Onlookers were baffled: the combustible Berman seemed an improbable match for the abstemious, crewcut Ford. "But Peggy," the Truth journalist Evan Whitton once asked her, "why Jack Ford?" Berman flashed a misty look: "Oh darl, he seemed such a strong man."
Exactly what disrupted this enchanted circle in the mid-'60s may never be known definitively. Berman claimed it was the accession as Homicide chief of Frank Holland in November 1965. Masons and Catholics were then alternating in the squad's top job, and ‘The Dutchman' was a rock-ribbed Roman Catholic; Berman strongly suspected that, through police connections, John Heath's "Collins Street Machine" was trying to eliminate its competitors. Others see Berman as protesting too much; Beatrice Faust describes the breakdown as a "trade war". The market was being undermined by the birth-control pill, leading to increasingly jealous competition among a still-growing group of rival practitioners with a tendency to inform on one another.
First to be collared were the young doctors Peter Bayliss and Max Sizeland, dragged unceremoniously through the County Court after a raid, even being pitched into Pentridge for a period. Sizeland remembers the terror of being manacled in the back of the black mariah with some decidedly notorious criminals who were nonetheless surprisingly solicitous. "You shouldn't be here," said one. "You perform an important social service." Thanks largely to the brilliance of the criminal barrister Jack Lazarus, the two were acquitted in May 1966, leading the mercurial Bayliss to gloat to Truth, "Never forget this, Whitton: the law exists for the protection of the rich no less than the protection of the poor." But the changing rules were made obvious when the Homicide detective Fred Russell, a tall, lugubrious man known for his affectation of silk socks, acted on a tip-off on 31 July 1967. Seventeen-year-old clerk Judith Carroll was pregnant to her 19-year-old apprentice-printer boyfriend, Michael Martin. Carroll wanted an abortion; Martin seems to have let something slip to a police informer; both were taken in for questioning, where it emerged that they had an appointment with Ken Davidson the next morning.
When Russell's team arrived on Davidson's doorstep at 10.30, they found that Carroll had wisely not kept her appointment. In the waiting room they found instead Marie Falls, a pregnant 17-year-old shopgirl from Ararat accompanied by her mother and an envelope containing $120 cash. Davidson was able to deflect police enquiries: people knew this was a standard aborter's fee and, he claimed, sometimes turned up in hope. Two and a half hours' searching and questioning looked like going to waste until Russell lit upon, and laid claim to, the metal card file containing the practice's patient records.
Davidson, now 92, recalls the moment: "He shouldn't have asked, and I probably shouldn't have allowed him. It was unethical." Russell, indeed, had superceded his warrant's authority, which entitled him only to those records concerning Carroll. Yet it looked to Russell and his colleague Roy Currie like the mother lode, as it were: within three days, they had begun contacting women whose names were on the cards, pressuring them into co-operation with threats and promises. A fortnight after the raid, they went a step further.
Dr Bert Vanrenen, of 426 Punt Road, South Yarra, was the model of a suburban GP: a soft-spoken, fastidious Presbyterian. He was one of the rare doctors who did not seek a kickback for abortion referrals, for he had personal insight into the service: twice he had turned to John Heath, once for his brother, once for himself when a girlfriend had fallen pregnant.
Vanrenen's name had appeared as the referring doctor on the card of one of Davidson's patients, 21-year-old computer programmer Robin Ann Dunn, whom the police had then interviewed. Confused and disoriented by a late-night interrogation, she recounted visiting the GP: "He asked me what I was going to do. I told him I'd probably get married. He said that to be pregnant was not a good reason to get married. He said I could have the baby adopted or have an operation." Vanrenen had sent the girl away to contemplate her choices, and she had returned a week later resolved on an abortion.
The referral, says Vanrenen, was a fluke: "Ken actually wasn't one of my usual ones. I generally sent them to Max [Sizeland] or Rod [Bretherton]. But this girl was on the other side of the river, and I'd heard Ken was a nice guy." Vanrenen admitted nothing under Fred Russell's questioning, but had to surrender his own records of Robin Ann Dunn and was warned to expect further enquiries. Frank Holland's vendetta then claimed another victim on 3 October 1967 when Roy Currie led a raid on William Fenton-Bowen's practice, finding a groggy recovering patient and a lot of cash. Asked why he was carrying $1674, Fenton-Bowen's anaesthetist, Patrick Hickman, gave the Packeresque reply, "I like the feel of it." With a warrant out for his arrest, Ken Davidson fled to Sydney.
Peggy Berman persuaded Davidson that he needed special help. At the end of October, she took Homicide's Jack Ford to the Florida Inn Motel in Potts Point for what was either a dirty weekend or a quaintly clean one; Ford would later claim that they had shared a bed but not had intercourse, as he wished to demonstrate his imperviousness to her feminine wiles. Between whatever transpired, they twice met Davidson. Ford advised him to wait another week, then return to Melbourne and turn himself in: he promised immediate bail. Davidson paid $500 as a "gesture of appreciation". So it was that Davidson attended the Russell Street CIB on 3 November 1967, made an unsigned statement, was charged with twelve counts of "procuring a miscarriage" and released on $1000 surety. Berman was confident that Ford would take care of it from there. Her confidence was entirely misplaced.
On 1 February 1968, the Homicide Squad descended on 1087 Hoddle Street. Dr Jim Troup had always felt invulnerable; now his mistress had to pass round the hat to raise bail for him and his anaesthetist, William Crombie, including a contribution from Davidson. On the advice of Ford and his colleague Jack Matthews, a panic-stricken Berman holed up in Melbourne's Palm Lake Motel with two other women from the practice and prepared six books of fake medical records: these, they said, could be quietly swapped for those the police had taken. But the policeman on whose doorstep Berman was instructed to deposit the books, Constable Ronald Jackson, instead turned them in to Holland, the Homicide chief.
Now it was Ford's turn to panic. He visited Holland the next evening and asked for the books left on Jackson's step. Holland wrote in his diary: "At 5.45 pm saw Inspector Ford. He made request regarding arrest of doctors Troup and Crombie - request not acceded to." When Ford repeated the request by phone the following morning, Holland recorded: "Received telephone call from Inspector Ford re same as above - same result." These scratchings would later help send Ford to jail.
The pro-choice campaign of the Abortion Law Reform Association had been more intellectual than political. Some impressive minds had gathered: in April 1968, for example, the youthful civil libertarians Gareth Evans and Peter Singer argued successfully in a debate at Melbourne University "that this house would legalise abortion". The ALRA's methods, however, were relatively genteel. The abortion debate would prove instead the wisdom of Ulysses S Grant: "There is no method to secure the repeal of bad or obnoxious laws as effective as their stringent application." Homicide's swoop on Troup had made the squad an enemy of Berman, and she was not a woman to be trifled with; the charging of Bert Vanrenen on 12 February 1968 with "conspiring to procure a miscarriage" for Robin Ann Dunn then radicalised his wife, Ila, the vivacious daughter of a Canadian diplomat.
Two more different campaigners can hardly be conceived of than Peggy Berman and Ila Vanrenen, and neither really started from a reforming agenda: Berman, as she set to substantiating allegations of police corruption, was driven to fury by betrayal; Vanrenen, as she waged a paper war in the Liberal Party, was provoked by the social ostracism that followed her husband's arrest. "I know what it's like to walk into a room and have everyone turn their back on you," she observes.
For the Vanrenens were as establishment as Berman was not: not only was Bert a nephew of the Liberal Party grand dame Jessie Sutherland OBE and had the industrialist Sir Robert Knox given the speech at their wedding, but they lived two doors from Sir Robert and Dame Pattie Menzies in Haverbrack Avenue, Malvern. Ila Vanrenen began writing to everyone she knew and calling in every favour possible in order to publicise the plight of GPs referring patients for abortion, at one stage even eyeballing an uncomfortable Premier Henry Bolte in his office. For his part, Bert Vanrenen prompted Rodney Bretherton to force the local branch of the Australian Medical Association to discuss abortion, and more than 450 doctors attended an unruly gathering on 14 June 1968 at which a majority called for a government inquiry into "the needs and desires of the population and the medical profession", expressing "deep concern" at the existing laws.
While Berman and the Vanrenens worked, as it were, opposite sides of the same street, a third figure barged noisily down the middle of the road. Two days after the AMA meeting, Ila Vanrenen was surprised in her husband's waiting room, now eerily empty, by a burly, balding stranger shrouded in cigarette smoke. Bertram Wainer was a St Kilda GP, born in the slums of Glasgow and most recently an army colonel: a crazy-brave, charismatic man, seldom predictable, sometimes melodramatic.
"Who's helping you?" he asked Vanrenen. When Vanrenen confirmed he had been shunned by colleagues, Wainer was outraged: "Hell, we all do it." As his widow, Jo Wainer, puts it: "He said, ‘There but for the grace of God go I.' Because he'd been referring patients like everybody else. Doctors needed to defend Vanrenen, because they were all involved."
It had been difficult for any medical practitioner, of course, to act as apologist for an illegal practice. Those who knew most tended to be most deeply implicated; in a way, too, the lack of regulation and oversight suited many operators. Bertram Wainer brought to the reform movement a doctor's authority and a pugilist's presence: over the next few years he would orchestrate a campaign that made his reputation publicly, even as it ruined him financially.
It was a timely arrival. In the late '60s, abortion's reformers were struggling for traction. The police were corrupt, the medical profession compromised and, above all, the political classes paralysed. Bolte's lethargic Liberal administration was propped up by the preferences of the Democratic Labor Party, and averse to anything that alienated its Catholic core. In reality, the Roman position on abortion wasn't monolithic. Berman herself was a Catholic, schooling her son at Xavier College, while Bert Vanrenen recalls that it was Catholic patients who probably saved him from ruin: "Why? Because Catholics have more need of abortion than any other group." Many took the attitude of one Italian woman, who told Wainer, "The Pope, he no play the game, he no make the rules." There was support, too, from surprising quarters. The Menzies never turned their backs on the Vanrenens. And one lunchtime, Sir Robert Knox accosted Bert Vanrenen's father-in-law at the Australia Club. "I read about your son-in-law," he said. "He'll be all right. What he's done is save someone from a worse fate. You should be proud of him."
Bolte's specialty was a kind of surly inaction. Campaigners were easily dismissed; on this issue, Bolte was prepared to ignore his own party: twice in two years, the Liberal State Executive, at the instigation of the Young Liberals, voted in favour of legislative clarification of abortion law, only for the premier to state that the executive had no power over him. "The government will handle this in its own way," he grunted. "We don't require any assistance and we will not be pressured."
When on 22 April 1968 prosecutor Geoffrey Byrne opened the Crown case against Ken Davidson in the City Court before magistrate RM Hudspeth, however, the law's indiscriminate viciousness was exposed. The first witness was a veterinary-science student from Melbourne University, Edward Andriessen. Evidence of his nurse girlfriend, Lynette Matthews, undergoing a termination at Davidson's hands had come from the doctor's confiscated cards. Yet under the statute, an abortion implicated everyone: Andriessen's driving Matthews to Hotham Street on his motorcycle was a breach of the Crimes Act, exposing him to a maximum sentence of 15 years. Like other witnesses, police had offered him an indemnity from prosecution. Andriessen wasn't convinced. When Byrne asked him if he was a student, he replied: "I cannot give any further evidence."
Hudpseth: You were asked if you were a university student, what is your answer to that?
Andriessen: I cannot give any answer for fear it may incriminate me.
Hudspeth: Do you think that giving your occupation would incriminate you?
Andriessen: I still cannot give any evidence for fear it may incriminate me.
When the hearing resumed the next day, the law's potential to make private life a public spectacle was also revealed. Andriessen not only reiterated his refusal to give evidence, but requested that his name be suppressed, for his identification had caused "a great deal of trouble at home". He gulped: "Until last night my folks never knew anything about it and my name is splattered all over the paper."
Although Hudspeth deprecated Andriessen's complaints, it was increasingly difficult to see how justice was served by the succession of witnesses, with their sad stories and embarrassed silences. Davidson's savvy defence counsel, Ray Dunn, was a cross-examiner of forensic minuteness, and his effect on Andriessen's girlfriend, Lynette Matthews, is recorded in the transcript:
Dunn: Now you say that he [Davidson] discussed your boyfriend with you. What was the substance of that discussion?
Matthews: What would my boyfriend say ...
Matthews: ... and think about the situation. And oh, he suggested that would we consider getting married.
Dunn: What if anything did you say to him when he said that?
Matthews: Well I said he had - he had his studies and we didn't want to get married yet.
Dunn: Well now?
Matthews: Oh, excuse me, I feel faint ...
So saying, she did.
Dunn's coup then came while cross-examining Marie Falls, the Ararat girl found with her mother in the waiting room. Davidson, of course, had not aborted her - but someone had.
Dunn: Do you swear you did not go to Dr Heath's rooms in Collins Street on the Wednesday?
Dunn: Just take your time. You understand that you are on oath, do you not?
Dunn: Will you swear that you were not there?
Falls: I was there.
Dunn: Of course you were. Why did you lie about that?
Falls: [sic] To incriminate others.
Dunn, who was also defending Bert Vanrenen, knew he was onto something. When the GP appeared in the City Court on 17 June 1968, the barrister homed in on the unfortunate Robin Ann Dunn. The girl described being operated on by Davidson, but then under questioning from her namesake tearfully admitted to another termination six months later, after consulting Heath. When Fred Russell of the Victoria Police appeared in the witness box, Ray Dunn was waiting to pounce. Homicide now had evidence in two cases that an abortionist called Heath was operating at 94 Collins Street. Why had the practice not been raided? "Pressure of business," said Russell. Nobody was convinced. Soon after, magistrate LT Griggin adjourned, apparently in response to a note he had just been passed. Dunn reported to the Vanrenens: "It's Bolte. You seem to have the premier's ear. Write again and ask why Heath hasn't been investigated." Ila Vanrenen's letter was a delicious mix of remonstrance and reprimand; Bolte would have received few such missives in his premiership:
Monday has come and gone and I have watched the police of Victoria crucify my husband, Dr Bertram Sutherland Vanrenen, that gentle man whose only concern is the health and welfare of his patients. Bother you. [...]
The present girls who have appeared in court have been pathetic nobodies. How long before they produce somebody including people that you and I know? This could become terribly nasty. [...]
Why has Dr Heath not been charged? Is it because he enjoys a particular relationship with someone which causes the police not to take action against him? [...]
Bolte's emollient reply avoided this last question, but the Crown case was nevertheless obviously in trouble. R v Davidson was scheduled to resume in the Supreme Court on 12 March 1969, but Ken Davidson called the Vanrenens in excitement when it was further adjourned: "I-I-Ila, m-most extraordinary news. They've dropped the charge of Robin Ann Dunn." It was the first hint of the nolle prosequi - the prosecution's decision to drop the case - that would spare Bert Vanrenen further business in court. Then Davidson added: "Apparently their case is so poor they're going through the boxes trying to find more witnesses." So they were - in increasing desperation. On the eve of R v Davidson's resumption, Dr Bertram Wainer received an early morning visit from a divorcee with three young children, who described being barged in on by three detectives. Wainer wrote:
They had asked her if she had been to see this doctor and her reason for doing so. What was wrong with her medically? They produced her medical history card with a big "P" written on it and asked: "What does that mean? Are you pregnant or are you on the pill? You're divorced; who's the man who got you pregnant?" Then came threats and intimidations. "If you don't tell us what we want to know, we'll come and see you at your work. Everyone will know why we are questioning you. Give this doctor up. You'll be all right; we won't expose you if you tell us about him, but if you don't give him up we'll hound you into the ground."
It was the provocation for what became a famous advertisement which Wainer placed in the Sun on 20 May, headed ‘Abortion Abortion Abortion', urging women visited by police "not be intimidated by bullying or intimidatory tactics" and promising, "You are an Australian citizen and the law is on your side." While Wainer was given to grandiloquence, on this claim he would be proven stunningly correct.
No character involved in the Menhennitt ruling is so improbable as the man himself. Cliff Menhennitt had risen to the Supreme Court bench because of his expertise as an equity lawyer. He had been best known at the bar for his expertise in Section 92 (‘Free Trade Between the States') of the Constitution; his most famous brief had been as HV Evatt's junior in the bank-nationalisation case; his most regular client had been Ansett, where his overriding instruction was to ensure that Sir Reginald Ansett never testified.
His reputation was for thoroughness tending to voluminousness. One day, says the veteran silk SEK Hulme, he drove even Justice Wilfred Fullagar, a man of famously saintly disposition, to distraction. "But I don't want any more authority for that proposition," Fullagar groaned. Menhennitt was unabashed: "Then I will content myself with giving Your Honour the names of all the cases cited." Hulme recalls: "And on he continued, to Fullagar's fury." When Menhennitt was mooted as a candidate for the High Court, Garfield Barwick is said to have scoffed, "Heavens, no. We don't have time."
In private, Menhennitt was hugely devoted to his wife, though they had no children, and his social manner was awkward, inclining to that slightly forced effusiveness that engenders awkwardness in others; he seemed sometimes a naif, sometimes a prude. It was the law that was his life's work. In a more leisured era for the bench, Menhennitt was a glutton for work: toiling through lunches and nights, he seemed capable of almost instant judgements. In court, he was known for immaculate manners and a telltale mannerism. "His lower lip would stick out," recalls Allan McDonald, then at the bar, later a Supreme Court judge. "And the more it stuck out, the worse you were doing."
What Menhennitt relished above all was a rich legal area in which he could rely on his prodigous recall. The transcript of R v Davidson from 12 May 1969, when the case recommenced in the Supreme Court, suggests a man in his element. When some police notes went missing, for instance, Menhennitt obliged barrister Jack Lazarus ex tempore.
Menhennitt: Mr Lazarus, doubtless you are aware of Elias v Pasmore 1934, 2 King's Bench, 164 at 173.
Lazarus: No, I am sorry, Your Honour.
Menhennitt: Well, perhaps if you could take note of it. Elias v Pasmore 1934, 2 King's Bench, 164 at 173.
Even so, Lazarus, representing Davidson, dominated the early stages of the trial, bringing delight to an audience lent a touch of society glamour by Janice Wakely and of fun by Ila Vanrenen, who wore something red to court each day and dined invariably at Lazar's.
Ken Davidson's defence was to claim that he had never intended aborting Judith Carroll, and merely curetted what had now been winnowed away to a total of four women. This defence was made easier by the shaky grasp of gynaecology displayed by the police:
Lazarus: What did you understand a curette was?
Russell: Some interference with the uterus.
Lazarus: Did you know what sort of interference or have you any belief as to what sort of interference?
Russell: In the form of a medical operation.
At the end of 16 May, Menhennitt announced that he had been reflecting on "a possible view as to what is involved in the concept of lawfulness and unlawfulness" concerning abortion. In the relevant section of the Crimes Act, based on Section 58 of Britain's Offences Against the Person Act 1861, anyone who "unlawfully administers" a poison or "unlawfully uses any instrument" to "procure the miscarriage" is a felon: from this can inferred that some circumstances exist under which abortion might be lawful. Such circumstances had been hinted at by Britain's Infant Life (Preservation) Act 1929, which made it a felony to cause the death of a child close to the stage of birth, but with the proviso "unless it is proved that the act ... was not done in good faith for the purpose only of preserving the life of the mother".
On 14 June 1938, with an eye to testing the law, a British gynaecologist, Aleck Bourne, had aborted a 15-year-old girl pack-raped by a group of Horse Guards, who had lured her into their stables to see "a horse with a green tail". When police arrived at the surgery, he went quietly: "I emptied the uterus this morning. I want you to arrest me." His trial became a cause célèbre, and Justice MacNaughten's judgement a momentous precedent: abortion was permissible where "the probable consequences of the continuance of the pregnancy will be to make the woman a physical and mental wreck". This wreckage, however, remained undefined, and soon an area of legal conjecture. Just six months after R v Bourne, the brilliant Melbourne barrister Jack Barry published a paper, ‘The Law of Therapeutic Abortion', in the Proceedings of the Medico-Legal Society of Victoria claiming that a sturdier defence still might be the legal principle of "necessity" - classically defined as the excusing of a crime committed "in order to avoid consequences which could not otherwise have been avoided" and which would otherwise lead to "inevitable and irreparable evil".
The wheels of justice, however, grind exceeding small. Legal interest in abortion in Australia dwindled. Even Barry, by now on the Supreme Court bench, belied his reforming reputation. When Beatrice Faust interviewed him for her PhD, he said airily that abortion had become like the road toll: everyone realised the problem; nobody had a solution. For the three Catholic judges on the bench, Greg Gowans, Kevin Anderson and Sir Norman O'Bryan, R v Bourne would have been a challenging precedent; the man enforcing the law, meanwhile, didn't care for it at all. "Bourne's case does not bind us," Homicide chief Frank Holland insisted. "That decision was stated by one judge alone and it was never established that the girl's life was in danger. To say that Bourne's case has any influence in Australia is nonsense. One judge can't make a decision affecting the rest of the world."
That the case came before Menhennitt was yet another accident in a story replete with them: judges simply took it in turns to sit a month in ‘crime'. "If anyone had looked at the list," says one of Menhennitt's contemporaries, the former Chief Justice Sir John Young, "I suspect they might have marked the case ‘Not for Cliff.'" Justice Bill Gillard, whose father, Oliver, also served on the bench with Menhennitt, puts it bluntly: "What Cliff knew of abortion would have been exactly nothing."
Yet Menhennitt might have known a little more than anyone suspected about unwanted pregnancy. The birth certificate of his father, born Frederick Inch to Emma Inch on 7 December 1879 in Creswick, leaves a blank space where normally would be inserted the name of a father; when he married, as Frederick Inch Menhennett on 27 September 1911, he listed his mother as "deceased"; in fact, she was still alive, dying a spinster on 27 August 1938. The documentation is consistent, then, with Menhennitt's father having been born illegitimately and adopted out, and with his grandmother spending her life in lone disgrace. It appears, furthermore, that they lived their lives in neighbouring suburbs, each probably unaware of the other. Did Menhennitt know? Did Menhennitt not? Strictly speaking, the questions are without force: he was too much the legal stickler to be swayed by anything purely personal. But his ruling radically improved the choices confronted by women after an untimely conception - the life-altering and potentially life-destroying choices faced by women like his grandmother.
The ‘Menhennitt ruling' of 26 May 1969 is just six pages, densely packed with precedent, and read aloud would have sounded like an inky cloud of abstractions: no wonder, really, that newspapers ignored it. On the page, however, it is quite stately, even elegant. Abortion, he concluded, could be lawful when it was "(a) necessary to preserve the woman from a serious danger to her life or her physical or mental health which the continuance of the pregnancy would entail; and (b) in circumstances not out of proportion to the danger to be averted".
The impact of the ruling on the outcome of the case is debatable; Ken Davidson's acquittal on 3 June probably owed more to Jack Lazarus. The Truth journalist Evan Whitton once asked the silk how he chose juries. "That is a question I will not answer unless compelled!" Lazarus laughed. In R v Davidson, he had ensured an all-male jury. Then, on the last day of evidence, in a trademark tactic, he had Davidson - on grounds of patient confidentiality - read an unsworn statement from the dock, rather than submit to cross-examination. Davidson was thus unchallenged in his quaint assertion that the patients concerned had simply imagined themselves pregnant, this being their "inborn desire" as women. The jurors were probably as influenced by male delusions about the female psyche as the judge's fine-grained arguments. But when Bertram Wainer "confessed" a fortnight later to the first of three "test case" abortions and theatrically surrendered to police, Menhennitt, or at least the result of his lucubrations, was front page-news in the Age: ‘This Was Supreme Court Ruling' - tacit admission of missing the original story. Attorney-General George Reid hemmed and hawed, finally harumphing on Channel Seven that Wainer was fully aware of "the fact that he had not committed a crime". Nor, the corollary was, had Troup, Bretherton, Fenton-Bowen and, when almost as an afterthought he was charged, Heath done so: all were acquitted.
Ultimately, indeed, Menhennitt's ruling suited government as much as it did doctors and women, sparing politicians the ordeal of legislating - an ordeal they have shown no eagerness to risk since. What suited the Victorian government less was Wainer's use of the limelight to publicise Peggy Berman's allegations of police corruption, which first appeared in Truth on 21 June 1969, and which led finally to a board of inquiry chaired by the Melbourne silk Bill Kaye - and in turn the convictions of Homicide's Jack Ford, Jack Matthews and Martin Jacobson. But this was all very nearly a sideshow. The inquiry, for all its sound and fury at the time, is little recalled; proof of the Menhennitt ruling is its longevity. "It was a sound judgement well-founded in established principles of British law," says Jo Wainer. "And judges in other states have been able to build on it because it is such a solid foundation." It was a case that needed exactly Menhennitt's pedantry. Conservatively structured, precise in some places, vague in others, the ruling offers almost nothing legally objectionable. It is not adventurous, stopping short of abortion-on-demand. It is not prescriptive, making no specific requirement regarding numbers or nature of medical or psychiatric opinions. Yet, after a succession of accidents and a parade of the peculiar, it made a shambles coherent - a court in the business of incarceration, and even execution, proving that the law is also about emancipation.