Barrett v Coroner's Court of South Australia
[2010] SASCFC 70
•9 December 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
BARRETT v CORONER'S COURT OF SOUTH AUSTRALIA
[2010] SASCFC 70
Judgment of The Full Court
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Peek)
9 December 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
MAGISTRATES - CORONERS - THE CORONER AND THE CORONER'S COURT
Application for judicial review of decision of Deputy State Coroner – decision that coroner had jurisdiction to conduct an inquest into the death of a new born infant – plaintiff a midwife who assisted the mother during planned home birth – during birth infant became entrapped within the birth canal – infant born without visible or aural sign of life – infant registered “pulseless electrical activity” (PEA) – infant declared dead due to hypoxia.
Whether Deputy State Coroner has jurisdiction to hold inquest – whether the death of the infant a “reportable death” per s 3, Coroner’s Act 2003 (SA) – whether “death of person” – consideration of the common law “born alive rule” – whether PEA could be considered a “sign of life” for the purpose of the born alive rule.
Held: (Anderson, White and Peek JJ): application for judicial review dismissed – the Deputy State Coroner was correct in deciding that he had jurisdiction to proceed to hold the proposed inquest – the born alive rule is satisfied by any sign of independent life – indicia of life are not limited to those which have been applied in previous cases, and advances in medical science can be used to determine signs of independent life – accordingly, the presence of pulseless electrical activity (PEA) was sufficient in the present case to be regarded as a sign of life.
(White and Peek JJ): It would not be appropriate to question the born alive rule in the present case – the rule should be applied – the jurisdiction of the Coroner’s Court should be construed broadly because of the important benefits of inquests to the public.
(Peek J): Having correctly formulated the test, even if the Deputy State Coroner then went on to err in his analysis of the evidence, or in the application of the correct test to the evidence before him, such later error would not be a jurisdictional error and would not be amenable to judicial review on that or on any other basis.
Coroners Act 2003 (SA) ss 3, 10, 11, 13, 21; Coroners Regulations 2005 (SA); Death (Definition) Act 1983 (SA) s 2; Births, Deaths and Marriages Registration Act 1996 (SA) s 4, referred to.
R v Iby (2005) 63 NSWLR 278, applied.
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; Re Estate of the Late K and Re the Administration and Probate Act 1935: Ex Parte the Public Trustee [1996] TASSC 24; R v Sullivan & Lemay [1991] 1 SCR 489; Attorney-General's Reference (No 3 of 1994) [1998] AC 245; R v King [2003] NSWCCA 399; Craig v South Australia (1995) 184 CLR 163; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Paton v British Pregnancy Advisory Service Trustees [1979] 1 QB 276; R v Hutty (1953) VLR 338; R v Handley (1874) 13 Cox CC 79; Brock v Kellock (1861) 30 LJ Ch 498; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"reportable death"; "person"; "sign of life"; "born alive rule"
BARRETT v CORONER'S COURT OF SOUTH AUSTRALIA
[2010] SASCFC 70Full Court: Anderson, White and Peek JJ
ANDERSON J. I agree that the application for judicial review should be dismissed. I agree generally with the analysis undertaken by White J and Peek J of the evidence placed before the Coroner. In my view the issues arising for determination by this Court are as follows:
1.Whether the Coroner had jurisdiction to inquire into the death of this particular newborn baby.
2.That, in turn, depends on whether the death in this case was a reportable death within s 21(1)(b)(i) of the Coroners Act 2003.
3.That, in turn, depends on whether this death was the “death of a person” within the definition.
4.That question involved an analysis of the decision of the New South Wales Court of Appeal in R v Iby (2005) 63 NSWLR 278 and whether the decision should be followed.
5.Assuming Iby should be followed then by applying the principles, was there evidence before the Coroner capable of showing that the baby was born alive?
In respect of each of those questions I agree generally with the conclusions of both White J and Peek J.
In my view the issues narrow to whether there is any evidence supporting the conclusion that the baby was born alive. That is, any sign of life. Although the evidence of Pulseless Electrical Activity (PEA) in the heart after the baby was separated from the mother may at first sound like an unrealistic proposition to indicate a sign of life, it is supported by the expert evidence of Dr Wheaton.
Whilst the PEA detected by the witness Ms Rowlands, an intensive care paramedic, of 15 beats a minute is one side of the picture, the fact is that the baby, when delivered, did not move, did not breathe, did not make any sound and had no pulse or heart beat. The question then is what constitutes a sign of life, and where is the line drawn?
I have found the PEA evidence difficult to rationalise with common sense. There are no signs of life apart from the PEA. But the expert evidence is there. Dr Wheaton, a paediatric specialist, says that PEA is one of four main cardiac arrest rhythms and in this case his opinion was that it was caused by hypoxia leading to asystole. From this conclusion it is reasoned that the baby was born alive.
Despite some misgivings at first, I consider that the Coroner was correct in accepting that evidence, finding that the baby was born alive and therefore finding that he had jurisdiction to inquire into the death.
I would therefore dismiss the application for judicial review.
WHITE J. This is an application for judicial review of a decision of the Deputy State Coroner that the Coroner’s Court has jurisdiction to conduct an inquest into the death of a new born infant.
Factual Background
The evidence relied upon at the hearing by the plaintiff and by the Attorney-General, who intervened in the proceedings,[1] was the same evidence which had been considered by the Deputy State Coroner. Apart from the plaintiff’s affidavit proving that evidence and the Deputy State Coroner’s ruling, the Court was not asked to receive additional evidence.
[1] Crown Proceedings Act 1992 (SA), s 9(2).
On 16 July 2007, the plaintiff (an experienced midwife) was assisting the infant’s mother in a planned home birth. The pregnancy had been unremarkable and the antenatal tests suggested that the infant, although considerably in excess of the mean birth weight,[2] was a “perfect healthy and viable foetus”.[3]
[2] Deputy State Coroner’s Ruling [1.2], [1.17].
[3] Ibid.
The labour commenced shortly after midnight on 15 July 2007. During its continuation, the infant’s foetal heart rate was within normal limits.[4] The infant’s head crowned at 5.10 am on the 16th and, at that point, her heart rate was 120 beats per minute, ie, at the lower end of the scale of normality.[5] The infant’s head emerged at about 5.20 am, but the infant then became entrapped within the birth canal due to a condition known as shoulder dystocia.[6] I understand that this condition occurs when an infant’s shoulder becomes caught behind the mother’s pelvic bone, thereby preventing the infant moving down the birth canal. In that position, the compression on the infant’s body precludes the infant from breathing and the compression on the umbilical cord prevents the infant from gaining oxygen by that means. It is a very dangerous circumstance which, if not corrected quickly, can result in the death of the infant or at least serious brain damage.
[4] Ibid at [1.4].
[5] Ibid.
[6] Ibid at [1.5].
The plaintiff and the mother tried various manoeuvres to release the infant, but she was not fully born, ie, fully separated from the mother, until some time between 5.36 am and 5.44 am. The Deputy State Coroner selected 5.40 am as the time of birth. At that time the infant appeared to be lifeless. The plaintiff immediately carried out resuscitative steps, but to no avail.
An ambulance crew arrived at about 5.48 am. They took over the attempts at resuscitation and within two minutes of arrival, one of the crew (Ms Rowlands) applied a heart monitor to the infant’s chest. This produced a form of electrocardiograph registering “pulseless electrical activity” (PEA) in the infant’s heart at the rate of 15 beats per minute.[7] I will describe PEA shortly. The evidence did not indicate the period during which the heart monitor was used, nor the period during which it indicated the presence of PEA. The ambulance crew tried various resuscitative measures, including intubation, ventilation and administration of adrenalin, all without success. The infant could not be resuscitated and eventually the PEA ceased and the infant was declared dead.
[7] Ibid [1.20].
The death resulted from significant hypoxia (deprivation of oxygen).[8] The infant did not display at any time after separation from the mother any of the recognised signs of life such as a heart beat or pulse, breathing, moving or crying. The only possible sign of life was the PEA registered on the heart monitor as observed by Ms Rowlands.
[8] Ibid [1.5].
These circumstances gave rise to the question of whether the death of the infant was a death into which the Coroner had jurisdiction to conduct an inquest. The Deputy State Coroner ruled that the Coroner’s Court did have that jurisdiction. In my opinion, he was correct to do so. My reasons for that conclusion follow.
Jurisdiction of the Coroner’s Court
The Coroner’s Court is established as a court of record: Coroners Act 2003 (SA), ss 10 and 11. Section 13 of the Coroners Act specifies the Court’s jurisdiction:
The jurisdiction of the Coroner’s Court is to hold inquests in order to ascertain the cause or circumstances of the events prescribed by or under this Act or any other Act.
Thus, the Coroner’s Court has jurisdiction to hold inquests in order to ascertain the causes and circumstances of “the events prescribed” by or under the Coroners Act itself or any other Act. The Coroner’s Regulations 2005 made under the Coroners Act do not contain any relevant prescription of “events”, and it was not suggested that any Act other than the Coroners Act did so.
Section 21 appears to be the only provision within the Coroners Act itself containing such a prescription. It requires the Coroner’s Court to hold an inquest to ascertain the causes or circumstances of a number of specified events:
(1)The Coroner's Court must hold an inquest to ascertain the cause or circumstances of the following events:
(a) a death in custody;
(b) if the State Coroner considers it necessary or desirable to do so, or the Attorney-General so directs—
(i) any other reportable death; or
(ii)the disappearance from any place of a person ordinarily resident in the State; or
(iii) the disappearance from, or within, the State of any person; or
(iv) a fire or accident that causes injury to person or property;
(c) any other event if so required under some other Act.
It is the category of “reportable death” in s 21(1)(b)(i) which is presently pertinent. That expression is defined in s 3 of the Coroners Act relevantly as follows:
reportable death means the State death of a person—
(a) by unexpected, unnatural, unusual, violent or unknown cause …
Section 3 also defines a “State death” to mean the death of a person within the territorial jurisdiction of this State.
The effect of these provisions is that the Coroner’s Court had jurisdiction to conduct an inquest into the death of the infant if that death was the “death of a person” for the purposes of the definition of a reportable death.
Jurisdictional Error
The concept of jurisdictional error by an inferior court was discussed by the High Court most recently in Kirk v Industrial Court of New South Wales.[9] The plurality summarised what had been said previously by the High Court in Craig v State of South Australia[10] in the following passage:
First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples:
(a) the absence of a jurisdictional fact;
(b)disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c)misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.[11]
(Emphasis in original) (Citations omitted)
[9] [2010] HCA 1; (2009) 239 CLR 531.
[10] (1995) 184 CLR 163.
[11] Kirk v Industrial Court of New South Wales [2010] HCA 1 at [72]; (2009) 239 CLR 531 at 573-574.
For the purposes of the present case, there will be jurisdictional error warranting an order by way of judicial review if the Coroner’s Court “makes a decision outside the limits of the functions and powers conferred on [it], or does something which [it] lacks power to do”.[12] If the Deputy State Coroner was wrong in concluding that the death of the infant on 16 July 2007 was the “death of a person” for the purposes of the definition of a “reportable death”, then the Coroner’s Court lacked jurisdiction to conduct an inquest into that death.
[12] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [163], (2000) 204 CLR 82 at 141 (Hayne J), cited by the plurality in Kirk v Industrial Court of New South Wales [2010] HCA 1 at [66]; (2009) 239 CLR 531 at 571.
The Born Alive Rule
The Deputy State Coroner used the “born alive” rule to determine whether the infant was a person whose death was within the jurisdiction of the Coroner’s Court. The “born alive” rule holds that for a foetus to achieve legal personhood, the infant must have been born alive. Sir George Baker P said in Paton v British Pregnancy Advisory Service Trustees:[13]
The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil rule of this country (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia and, I have no doubt, in others.[14]
[13] [1979] 1 QB 276.
[14] Ibid at 279.
In R v Hutty[15] Barry J stated the rule in the following terms in the course of his charge to the jury on a trial of infanticide:
Murder can only be committed on a person who is in being, and legally a person is not in being until he or she is fully born in a living state. A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or of manslaughter or of infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs.[16]
[15] (1953) VLR 338.
[16] Ibid at 339.
The content, purpose and application of the “born alive” rule were discussed recently by Spigelman CJ (with whom Grove and Bell JJ agreed) in R v Iby.[17] Spigelman CJ described the rule as consisting of two distinct components: first, that the foetus must have completely left its mother’s body (although the umbilical cord does not have to be cut); and, secondly, the child must be alive at or after birth, in that sense, has occurred.[18] The “born alive” rule is satisfied by any indicia of independent life.[19] That is to say, there is no single indicator of life, such as breathing, heart beat or voluntary movement, which must be present before it can be said that the infant was born alive. On the other hand, evidence that the infant did breathe,[20] have a heart beat[21] or pulse,[22] move voluntarily, or cry may be sufficient by itself to indicate that the infant was born alive. Further, the “born alive” rule does not include a requirement of viability in the sense of the physiological ability of a newly born child to survive as a functioning being.[23]
[17] [2005] NSWCCA 178; (2005) 63 NSWLR 278.
[18] Ibid at [27], 283.
[19] Ibid at [56], 287.
[20] R v Handley (1874) 13 Cox CC 79.
[21] R v Iby [2005] NSWCCA 178 at [62]; (2005) 63 NSWLR 278 at 288.
[22] Brock v Kellock (1861) 30 LJ Ch 498.
[23] R v Iby at [54], 286.
Spigelman CJ described the “born alive” rule as being based on two anachronistic and antiquated factors.[24] The first was the primitive state of medical knowledge at the time when it was adopted. The second was that birth was a process fraught with risk until comparatively recently and accordingly there was a high probability that a stillbirth had natural causes. Spigelman CJ also considered that there is a strong case for abandoning the “born alive” rule completely.[25] He held that if the “born alive” rule is to continue to be applied, it should be done so in a way which is consistent with contemporary conditions:
In the current state of medical technology and with the extremely low rate of stillbirths in the Australian community, the “born alive” rule, if it is to survive at all, should continue to be applied … so that any sign of life after birth is sufficient. This happens to be consistent with the authorities.
It is also the approach which conforms best with contemporary conditions. It is now virtually certain that a new born baby which shows any sign of life would have lived but for the conduct said to constitute manslaughter or dangerous driving, inflicted on the baby late in the mother’s pregnancy. The viability of a foetus can now be both established and ensured in a manner which was beyond the realms of contemplation when the born alive rule was adopted. That rule should now be applied consistently with contemporary conditions by affirming that any sign of life after delivery is sufficient.[26]
(Emphasis added)
[24] Ibid at [32], 284.
[25] Ibid at [63], 288.
[26] Ibid at [64]–[65], 288.
On the present application, both parties accepted that the issue of whether the death of the infant was the death of a person for the purposes of the Coroners Act was to be determined by reference to the “born alive” rule. All the submissions to this Court were prefaced on that acceptance. This case is not therefore an appropriate occasion to revisit the continued utility or appropriateness of the “born alive” rule. Further, and in any event, the decision in Iby, being a judgment of an intermediate Court of Appeal concerning the common law of Australia, this Court would be slow to take a different view of that law.[27] Accordingly it is appropriate to determine the present application by applying the “born alive” rule, and to do so in the way suggested by Spigelman CJ, that is, that any sign of life after the complete delivery of an infant will be sufficient to satisfy the rule.
[27] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135]; (2007) 230 CLR 89 at 151-2.
Spigelman CJ also referred to an old common law presumption that all children are born dead with the consequence that the fact of live birth had to be established by evidence.[28] His Honour did not indicate whether or not he regarded the presumption as continuing to be part of the Australian common law. For my part, I doubt that it is. The operation of the presumption is not essential to the operation of the “born alive” rule and it is entirely out of keeping with contemporary experience of child birth. The incidence of perinatal death (which includes foetal deaths as well as the stillborn) in Australia is now less than one per cent of all births.[29] Further, the presumption does not seem to have any work to do in determining where the onus of proof lies. One would expect that onus to be determined by the context in which the issue arises. In those cases like the present in which a court is exercising an inquisitorial function, it would be inappropriate to apply a rule concerning onus of proof derived from adversarial litigation. The Coroner must nevertheless be satisfied that the factual circumstances enlivening the jurisdiction of the Coroner’s Court have been established.
[28] R v Iby at [31], 283.
[29] Australian Bureau of Statistics, “Perinatal Deaths, Australia” (2008), 3304.0; Australian Bureau of Statistics, “Births, Australia” (2009) 3301.0.
The resolution of the present application does not require this Court to express a concluded view on the current status of this old common law presumption and I refrain from doing so.
The Nature of PEA
In the present case, the only sign of life in the infant following birth was the PEA detected by Ms Rowlands at about 5.50 am. Although the plaintiff accepted the statement of Spigelman CJ that any sign of life after complete separation was sufficient to satisfy the born alive rule, she disputed that a PEA of 15 beats per minute could be regarded as such a sign.
Dr Wheaton is an experienced paediatric cardiologist. He provided a written report which was tendered at the hearing in the Coroner’s Court and, in addition, gave oral evidence at that hearing. The Deputy State Coroner appears generally to have accepted Dr Wheaton’s evidence, although he did not regard his opinion that PEA could not be regarded as a sign of life in the present case as conclusive of that issue.
Dr Wheaton described PEA as follows:
Pulseless electrical activity (PEA) means the absence of a detectable pulse in the presence of a heart rhythm on electrocardiogram which would normally be expected to produce a pulse. PEA requires relatively normal coordinated electrical activity on the electrocardiogram. Despite the presence of this rhythm there is either complete absence of contractions of the heart, or the contractions of the heart muscle are so weak that they fail to generate sufficient output from the heart to create a palpable pulse.
Complete absence of contractile activity is sometimes known as “true PEA”, while the occurrence of weak contractions without a detectable pulse may be known as “pseudo PEA”. The detection of weak contractions would require direct imaging of the heart with ultrasound, and audible heart rate (using a stethoscope) without a palpable pulse, or pressure monitoring within an artery.
… PEA is one of four main cardiac arrest rhythms, the others being asystole, ventricular fibulation and pulseless ventricular tachycardia. PEA is sometimes known by the older term electro mechanical dissociation.
PEA may have a reversible cause such as hypoxia (low oxygen), hypovolemia (reduced blood volume as a consequence of blood loss), or hypothermia (low temperature). This list is not exhaustive.
The cause of PEA in this case was almost certainly hypoxia. The usual response to prolonged severe hypoxia is initial acceleration of the heart rate (tachycardia) followed by progressive slowing of heart rate (bradycardia) and eventual cessation of heart beat and electrical activity (asystole). In a new born infant, it is considered that the circulation is inadequate once the heart rate is below 60 beats per minute. If the underlying cause of hypoxia is not reversed and death ensues, it would be reasonable to expect that a detectable pulse might be lost before electrical activity ceases because hypoxic myocardium (heart muscle) contracts less strongly. Therefore in the context of severe hypoxia, PEA with a very slow heart rate may simply be part of the “normal” progression to asystole, and will occur at a late stage.
Patients with PEA are effectively in cardiac arrest and require full cardiopulmonary resuscitation measures including assisted ventilation, oxygen and treatment with adrenalin. These measures along with treatment of any underlying reversible cause, may result in successful resuscitation of some patients with PEA. PEA will not respond to use of a defribulator (ie PEA is not a “shockable” rhythm).
(Emphasis added)
Dr Wheaton added to this description of PEA in his oral evidence by saying:
The ECG is a recording of the electrical activity related to each heart beat which consists of depolarisation of heart muscle causing that muscle to contract in normal circumstances, followed by repolarisation prior to the next heart beat. In this situation there was conduction occurring because apparently normal beats – albeit at a slow rate – were evident when the monitor was placed.[30]
[30] Tx 147.
Later in his written report, Dr Wheaton said that there was “definitely” a chance of survival in some cases of PEA but that one could not generalise so as to say that this was true in all cases. He referred to a guideline issued by the Australian Resuscitation Council in February 2006 which indicated that “it is reasonable to consider discontinuing resuscitation if an infant has not responded with any measurable heart rate after 10 minutes of maximal resuscitation”.
The Deputy State Coroner also received a written report from Professor Pepperell, a professor emeritus of obstetrics and gynaecology. Professor Pepperell did not attend to give oral evidence and his report does not add to the Court’s understanding of the nature of PEA.
The evidence before the Coroner’s Court did not address some general features of PEA. For example, the evidence did not indicate the relationship between the beat of the electrical activity in the heart of a normal functioning infant with the heart beat of that infant. The Coroner’s Court was not told whether or not the beat of regular electrical activity is the same as that of the heart. This meant that in the present case, the Court was not told whether the detected electrical activity of 15 beats per minute, if it had not been pulseless, would have produced a heart beat or pulse at the rate of 15 beats per minute or at some other rate. The evidence did not address the stage at which the electrical activity may become so weak as to cease to produce a pulse.
In relation to the PEA which was detected in the infant, the evidence did not indicate for how long Ms Rowlands had kept the heart monitor in place on the infant, and for how long observations had been made of the PEA. It did not indicate whether there were any observed changes in the PEA, or in its rate during the period of the ambulance service’s attendance. If there had been a decline, it may have been possible to infer that the PEA had been at a higher rate at some earlier time.
Application of the “Born Alive” Rule
As noted earlier, the plaintiff accepted that the “born alive” rule was to be applied, and accepted the statement of Spigelman CJ that the rule should be applied by regarding any sign of life after the infant’s complete separation from her mother as sufficient to satisfy the rule.
The plaintiff contended, however, that PEA, especially in the absence of any other sign of life previously recognised in the cases (breathing, crying, voluntary movement, heart beat or pulse) should not be regarded as a sign of life for the purposes of the rule. PEA, it was submitted, should be regarded only as “precursor” to life or as a “preliminary, inchoate or potential indicia of life”.
The plaintiff urged the Court not to adopt “a PEA definition of life” and referred to the opinions of Drs Pepperell and Wheaton that PEA should not be regarded in this case as a sign of life. Next, the plaintiff referred to a number of texts which indicate that, traditionally, coroners do not have jurisdiction with respect to stillbirths.[31] Finally, the plaintiff sought to draw support from the definition of death in the Death (Definition) Act 1983 (SA) and from provisions in the Births Deaths & Marriages Registration Act 1996 (SA).
[31] Thomas, Leslie, Friedman, Danny and Christian, Louise, Inquests: A Practitioners Guide (Legal Action Group, 2002), 85; Dorries, Christopher, Coroner’s Courts: a guide to law and practice, (John Wiley & Sons, 2000), 24; Abernethy, John, et al, Waller’s Coronial Law and Practice in New South Wales, (LexisNexis Butterworths, 4th ed, 2010), [4.7]; Levine, Sir Montague and Pyke, James, Levine on Coroners’ Courts, (Sweet & Maxwell, 1999), 142-143; Matthews, Paul and Forman, J.C., Jervice on the Office and Duties of Coroners, (Sweet & Maxwell, 3rd ed, 1986), 197; Farrell, Brian, Coroners: Practice and Procedure, (Sweet & Maxwell, 2000) 5-08 – 5-10.
In considering these submissions, it is appropriate to bear in mind the public interest served by the conduct of inquests by the Coroner. The purposes of a coronial inquiry have been said to include the determination of the medical cause of death; the advancement of medical knowledge; the investigation of deaths to allay suspicions; recommendations to avoid future fatalities; and the monitoring of death investigation systems.[32] The importance and value of these purposes suggests that the jurisdiction of the Coroner’s Court should not be construed narrowly. This means that it would be inappropriate to give a narrow meaning to the expression “death of a person” for the purposes of the definition of a “reportable death” in the Coroners Act. This is especially so in circumstances like the present in which the infant was, in a practical sense, treated as a person immediately before the commencement of the labour, during the labour and after her birth, and also because of the use of the resources of the community and of the State in the endeavour to ensure her survival.
[32] P Matthews, "Involuntary Manslaughter: A View from the Coroner's Court" (1996) 60 J of Crim L 189 at 191.
To my mind, a number of matters suggest that the PEA in the present case should be regarded as a sign of life, even though it was not supported by any other sign of life in the infant.
First, PEA is a form of electrical activity produced by the body, presumably the body’s autonomic system. Dr Wheaton described the electrical activity as a “necessary facet” of the existence of life. The PEA in this case was an indication of vitality. The activity may have been involuntary and short-lived, but in that respect it does not seem materially different from, say, short-lived breathing which would, as a matter of course, be regarded as a sign of life.
Secondly, even with a PEA as low as 15 beats per minute, Dr Wheaton thought it possible that there could still be some accompanying heart beat, albeit of a very faint and slow kind.
Related to this is that in some cases of very slow PEA, the person may nevertheless be resuscitated. Dr Wheaton said that it would be “entirely possible” in some cases for a new born infant with PEA by reason of hypoxia to be resuscitated successfully. Of course, the prospects of a successful resuscitation would depend upon the stage at which the intervention occurred. It would be incongruous to my mind that the presence of a bodily activity indicating that a successful resuscitation may be possible, and which may prompt resuscitative attempts to be commenced or continued, should nevertheless be disregarded as a sign of life.
Although the evidence in the present case did not indicate that there had been any change in the rate of the PEA, it does seem reasonable to suppose that the PEA had been higher at the time of parturition (assuming that the heart beat had already stopped at that stage) than it was some six minutes, or possible 12 minutes, later at the time of Ms Rowlands’ observation. There is inevitably some speculation about this, but to my mind it is reasonable to infer that the sign of life detected by Ms Rowlands may have been even stronger when the infant first separated from her mother.
Next, the fact that the observed PEA may have been towards the end stages of the infant’s transition to death does not, to my mind, preclude it being a sign of life. A sign of life remains a sign of life, whether it be found at the incipient or terminal stages of life. Similarly, the fact that in a particular case the PEA may have reached a stage which turns out to be irreversible seems immaterial. The prospect that death is almost certain does not deprive an indication of life of its effect as a sign of life. The indicia of life in fully grown adults at the final stages of a terminal illness are still signs of life despite the imminence and inevitability of their death.
Finally, I regard it as immaterial that, in the absence of the ECG evidence produced by the heart monitor applied by Ms Rowlands, it is likely that the infant would have been regarded as stillborn. The ECG evidence is not to be ignored. There is no reason not to have regard to all of the available evidence, and the increased knowledge or information made accessible by modern medicine and its equipment is not to be disregarded. The Coroner’s Court is not confined only to the kinds of evidence available to the Courts considering the same question in the 18th or 19th Centuries.
The plaintiff’s submission that PEA should be regarded only as a “precursor” to life or as a “preliminary, inchoate or potential indicia of life” does not seem persuasive. It is not entirely clear what the plaintiff meant by the latter expression in any event. There is a sense in which the electrical activity of the heart is a “precursor” to a heartbeat, in that, without the electrical impulse, there can be no contraction of the heart muscle. It does not follow, however, that the electrical activity cannot, by itself, be a sign of life. The illustration proffered by the plaintiff to support the argument indicated its weakness. She contended that just as the presence of lungs in the infant’s body did not indicate that the infant could breathe, so did the presence of electrical activity in the heart not indicate the presence of life. This analogy seems particularly inapt, if only because it seeks to liken the presence of a necessary bodily organ, on the one hand, with a sign of vitality, on the other.
Contrary to the plaintiff’s submission, the Coroner’s Court’s satisfaction that the presence of PEA may be a sign of life satisfying the “born alive” rule is not the adoption of “a PEA definition of life”.
In his report, Professor Pepperell speculated that the PEA may have been produced by the plaintiff’s attempts at resuscitation immediately after the infant’s birth. It is not clear whether the Professor was suggesting that the observed PEA may have been an artefact, or that electrical activity in the heart, having ceased, was then renewed by the resuscitative steps. Professor Pepperell did not explain this opinion. I do not consider that it indicates that the PEA should not be regarded as a sign of life.
I accept that traditionally, coroners’ courts have not had jurisdiction with respect to stillbirths. However, that is a consequence of the statutory provisions vesting jurisdiction in coroners’ courts. Further, to assert that coroners do not have jurisdiction with respect to stillbirths is only to state the present issue in a different way, as one would then have to ascertain when a birth is to be regarded as a stillbirth. In this respect, the Births, Deaths and Marriages Registration Act, to which the plaintiff referred, provides an illustration. By s 4 of that Act, “still-birth” is defined to mean “the birth of a still-born child”. A “still-born child” is defined to mean:
A child of at least 20 weeks’ gestation or, if it cannot be reliably established whether the period of gestation is more or less than 20 weeks, with a body mass of at least 400 grams at birth, that exhibits no sign of respiration or heart beat, or other sign of life, after birth but does not include the product of a procedure for the termination of pregnancy.
(Emphasis added)
This definition applies only for the purposes of the Births, Deaths and Marriages Registration Act but the inclusion of the words “or other sign of life” does provide a convenient illustration that the issue presently under consideration may arise even when the enquiry is whether a particular birth is to be regarded as a stillbirth.
Similarly, I do not consider that the definition of death in the Death (Definition) Act provides much assistance. Section 2 of that Act provides:
For the purposes of the law of this State, a person has died when there has occurred—
(a) irreversible cessation of all function of the brain of the person; or
(b) irreversible cessation of circulation of blood in the body of the person.
It can be seen that this provision applies “for the purposes of the law of this State” and not just for the Death (Definition) Act itself. However, this Act defines when a person, ie, a person who has previously had life, is to be taken to have died. There seems little logic in applying a law specifying when a person is to be regarded as being dead, which presupposes that the person was once alive, to determine whether an infant did once have life.
A similar argument in relation to the relevantly identical provision in the Human Tissues Act 1983 (NSW) was addressed by Spigelman CJ in R v Iby.[33] I respectfully agree with the reasons of Spigelman CJ on this topic.
[33] [2005] NSWCCA 178 at [68]-[74]; (2005) 63 NSWLR 278 at 289-90.
Conclusion
For the reasons given above, I do not consider that it has been established that the Coroner will act in excess of his jurisdiction by conducting an inquest in this case. Accordingly, I would dismiss the application for judicial review.
PEEK J. This is an application for judicial review of a decision by the Deputy State Coroner that he had jurisdiction to conduct an inquest.
Background
On 16 July 2007 the plaintiff, a registered nurse and midwife, was in charge of the delivery of a baby, whose mother had elected to give birth at home.
The evidence was that the baby’s heart-beat was normal until about 5.10am when the baby crowned, with her head later emerging at 5.20am but full birth did not occur until about 5.40am, immediately after which the cord snapped. The significant delay in delivery was caused by shoulder dystocia, a known complication whereby a baby’s shoulder becomes caught in the birth canal. At the time of autopsy, the baby was at 40 weeks gestation and in the 95th percentile for Australian babies for weight.
Although there were some contrary indications,[34] the facts upon which the State Deputy Coroner proceeded were that the baby never moved, made any sound, took a breath or exhibited a pulse or a heart-beat.
[34] Intensive Care Paramedic Ms Rowlands believed that the plaintiff had informed her that the baby had breathed but not cried (CB 94). Mr Koch, the baby’s father, thought that the ambulance officers had told him and his wife that her heart beat was about 5 beats per minute and he thought that the plaintiff had said “we’ve got a pulse”(CB 273). The plaintiff also recalled an ambulance officer saying they detected “five beats a minute”. I consider it highly likely that they were simply confused by a reference to “PEA” (discussed below) rather than actual heartbeat.
However, Intensive Care Paramedic Ms Rowlands detected “pulseless electrical activity” (hereafter “PEA”) of 15 beats a minute on the cardiac monitor (after full separation from the mother). She stated that:
…there was an electrical activity but the muscle wasn’t actually contracting. So the electrical part of the heart was sending an electrical signal but the actual muscle wasn’t pumping so therefore there is no blood movement.
Ms Rowlands assessed a Glasgow Coma Score of 3, which she described as indicating unresponsiveness.
Attempts at resuscitation, including injection of adrenaline and atropine, were unsuccessful and no return of spontaneous circulation or respiration was achieved. Ms Rowlands stated that the baby became aystole during transport to the hospital, in the sense of losing all PEA.
It is useful to note here that, even though resuscitation was unsuccessful in the present case, the Deputy State Coroner correctly noted in the course of his judgment that:
[T]he evidence was that even in cases of PEA caused by hypoxia, resuscitation and the establishment of a mechanical heart beat sometimes might be achieved.
Professor Emeritus Pepperell, a gynaecologist who provided a report but did not give evidence, concluded that there would appear to be little doubt that the baby died due to intra-partum hypoxia.
Dr Khong, the pathologist who undertook the autopsy, initially categorised the baby’s death as a “stillbirth” but in interview indicated that it was not possible for him to tell whether this was the correct classification and that because of the artificial ventilation that was conducted, he was not able usefully to have resort to the state of the lungs to determine whether she had taken a breath. However, he observed during evidence that an acute asphyxial event happened during delivery, probably before her head was delivered or around the time of labour before she would have been expected to take her first breath. He said he was comfortable with Professor Pepperell’s view that the baby died from intrapartum hypoxia associated with the prolonged time interval between delivery of the head and delivery of the remainder of the baby.
Dr Wheaton, Medical Director of the Division of Paediatric Medicine at the Women’s and Children’s Hospital, a paediatric cardiologist, stated that the baby was stillborn and that her death occurred after delivery of her head but prior to completion of delivery. He noted that, although PEA was detected by ambulance officers, there was an absence of contractions of the heart and no detectable pulse. He did not concur with a view expressed by Ms Rowlands that it was unlikely that the baby had died in utero by reason of her having PEA a relatively short period of time later. He classified the baby as having an Apgar score of 0 at all times and stated:
This describes a baby with no detectable heart rate, no spontaneous breathing, blue or pallid colour, no muscle tone (i.e. completely limp) and no response to stimulation. ... The presence on the monitor of electrical activity at a very slow rate with no detectable output from the heart does not, in my view, constitute a heart rate in this context.
As to the matter of PEA, Dr Wheaton described PEA as “the absence of a pulse in the presence of a rhythm which would normally be expected to generate a pulse.” He stated that it is one of four main cardiac arrest rhythms and that although it can be caused by a number of things, in this case it was almost certainly caused by hypoxia. He further stated that the baby would effectively have been in cardiac arrest and in this context regarded PEA as “the very far end of a process that was leading to asystole”. Dr Wheaton stated that her PEA would not have responded to a defibrillator.
However, there is a further important aspect of Dr Wheaton’s evidence that should be specifically mentioned, namely that although PEA may be detected while heart-beat is not detected in a given case (such as the present), that does not necessarily mean that heart-beat is definitely absent; heart-beat may still be present but not detected because appropriate detecting equipment is not utilised.
Thus the following passage of evidence occurred during the examination of Dr Wheaton by Counsel assisting the Coroner:
Q:…PEA is that not nevertheless a bodily process. I mean the quality may vary depending on the person and the state of resuscitation but is it not nevertheless a bodily process that does go to make up, along with other processes a person’s life?
A:By that you mean electrical conduction in the heart?
Q:Yes.
A:Yes.
Q:I mean it’s something that you may not be able to see and it doesn’t necessarily move, like a heart can be seen to move but it’s still a necessary facet of a person’s existence, isn’t it, that electrical activity in the heart?
A:Yes, it is.
Q:You say in this case, however, the – what was in existence in this particular child’s case was PEA albeit it was in existence at a very late stage of the child’s progression towards total asystole and death, is that your position on it?
A:That’s my position. On all of the usual criteria that we employ to make a judgment as to whether a baby is live born or stillborn, the baby was stillborn. Therefore in that context I don’t believe that the finding of some electrical activity within the heart was meaningful.
Q:Just in relation to the detection of the PEA at 15 beats per minute, if the chest had been osculated at that time with a stethoscope, is there a possibility that had there been any heart activity going on, that could have been detected through those means?
A:That is possible, so it would certainly be possible to have an audible heart rate, without having a palpable pulse. Further to that point, an audible heart rate would constitute a sign of life in my view, certainly one would assign an Apgar score of at least one if there was an audible heart rate.
Q:So in effect in the absence of osculating the chest and listening for that possibility, we can’t say whether or not it existed?
A:I agree.
Q:Therefore on what you’re suggesting, it can’t be said definitively that that sign of life did not exist in conjunction with the PEA?
A:No that can’t be stated, can’t be known.
Q:That as per your comments in your report at – I think it’s p.3, that you would accept and this is in para. 4 under question 3, that you would conclude that a PEA is not a sign of life per se, but that it may co-exist with a sign of life and you say the audible heart rate. So if that were a possibility, that would then satisfy as far as you were concerned, a sign of life exists?
A:Yes.
Q:I’m sorry, in the case of PEA of 15 beats per minute, do you say that it is possible that there could be a heart beat occurring, although it might be very faint and very slow?
A:Yes, it’s not possible for us to know whether the heart was contracting or not.
Q:No, but you can’t say definitively that it would not have done that with such a low PEA rate?
A:No.
Q:In your report, you refer to – and in fact it’s at the same point that I’ve just taken us to on p.3, and that is you refer to pseudo PEA and true PEA. Can you please explain to us what each of those are and the distinction between the two.
A:Well true PEA is electrical activity with no contraction of the heart. Pseudo PEA is electrical activity with contraction of the heart, which is insufficient to generate enough output to give a pulse. Again we’re not able to know with certainty, therefore I’m not sure that this is a useful distinction for us to try and make.
Q:I appreciate that, because we don’t know in this case. But in saying that, would you distinguish pseudo PEA from true PEA in terms of signs of life?
A:My view of that would be that if there was evidence that the heart was contracting, I believe that would be a sign of life, even in the absence of a pulse. That’s my view, I’m not able to refer to any literature.
The jurisdiction of the Coroner’s Court – Coroners Act 2003
The jurisdiction of the Coroner’s Court is bestowed and delineated by ss 13 and 21 of the Coroners Act 2003 (“the Act”) as follows:
13—Jurisdiction of Court
The jurisdiction of the Coroner’s Court is to hold inquests in order to ascertain the cause or circumstances of the events prescribed by or under this Act or any other Act.
21—Holding of inquests by Court
(1)The Coroner’s Court must hold an inquest to ascertain the cause or circumstances of the following events:
(a) a death in custody;
(b)if the State Coroner considers it necessary or desirable to do so, or the Attorney-General so directs—
(i) any other reportable death; or
(ii)the disappearance from any place of a person ordinarily resident in the State; or
(iii) the disappearance from, or within, the State of any person; or
(iv) a fire or accident that causes injury to person or property;
(c) any other event if so required under some other Act.
The correct approach to an interpretation of the statutory provisions delineating the jurisdiction of the Coroner’s Court
The jurisdiction of the Coroner’s Court is both important and wide. Far from being contingent upon proof of a death in every case, it includes such prescribed events as fires (deliberate or accidental) or accidents of any type that cause injury to any person or property in South Australia.
While the holding of an inquest is mandatory in some instances,[35] it is left to the Court itself to decide if it considers it necessary or desirable to convene an inquest in relation to the matters referred to in s 21(1)(b) of the Act.[36] For reasons that have been made clear in various writings, the work of the Coroner’s Court within this “pro-active” jurisdiction may be of immense benefit to the community.
[35] For example, see Coroner’s Act 2003, s 21(1)(a) (a death in custody) and s 21(1)(b) (where the Attorney-General so directs).
[36] By contrast, the jurisdiction of most courts is only enlivened by the action of an exterior person, beyond the control of the court, in deciding to commence litigation. So it is that important legal issues not infrequently may lie dormant for many years if it so happens that no person initiates litigation which enlivens the jurisdiction of the relevant court to consider them.
Accordingly, the ambit of the jurisdiction of the Coroner’s Court should be construed broadly as, indeed, should generally be the case when considering the ambit of jurisdiction invested in any court by the relevant enabling statute.[37]
[37] Thus in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [9] and [11], Gaudron, Gummow, Hayne and Callinan JJ stated: “The inquiry must begin with the relevant statutory provisions. … Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits.”
A reportable death
In the present case, an initial question is whether what occurred constituted a “reportable death” within s 21(1)(b)(i) of the Act since this is the only basis on which it is asserted that the Coroner’s Court presently has jurisdiction. The Act presents the following definition in s 3:
reportable death means the State death of a person— (emphasis added)
(a) by unexpected, unnatural, unusual, violent or unknown cause;
Death of a person
It can be seen from the above definition that there can only be a “reportable death” if there is a “death of a person” occurring within the state of South Australia. We thus come to a critical question in the present proceedings – what precisely is meant by the phrase “death of a person”?
The decision of the Deputy State Coroner
The Deputy State Coroner made it clear that he was following and applying the decision in R v Iby[38] and proceeded to consider some essential features of that decision. His Honour stated:[39]
[38] (2005) 63 NSWLR 278.
[39] Ruling of Deputy State Coroner, at [1.9].
1.9The judgment of the Court of Criminal Appeal of New South Wales in R v Iby identifies the following features of the born alive rule:
1) The born alive rule has never encompassed a requirement of viability in the sense of the physiological ability of a newly born child to survive as a functioning being.
To my mind this is hardly surprising because the question of whether a newly born infant has been born alive is invariably examined in circumstances where there is a very real issue as to its viability and physiological ability to survive and usually arises in cases where the child eventually dies.
2) The rule is satisfied by any indicia or sign of independent life;
3) There is no requirement that unassisted breathing must exist before a baby can be said to be born alive;
4) Evidence of a child’s heart beating after delivery is sufficient evidence that a child was born alive;
I would add here that this aspect of the judgment also identifies that a heart beat alone is sufficient to satisfy the common law born alive rule, even in the absence of any other sign of life.
5) That the New South Wales identical equivalent of the South Australian Death (Definition) Act 1983 as contained in s 33 of the Human Tissues Act 1983 (NSW) does not change the definition of life for the purposes of the common law born alive rule, nor should the born alive rule be adapted so as to be consistent with the statutory definition of death.
1.10In my opinion this Court should follow and apply all aspects of the decision of the New South Wales Court of Criminal Appeal in R v Iby.
His Honour later returned to that decision and observed that:
Despite the fact that the child’s brain function was virtually non-existent, and that its life was being sustained by artificial means, the Court held that it had been born alive for the purposes of the common law rule. Indeed, it was held that the heart beat was, in and of itself, sufficient to be regarded as a sign of life. I take this to mean that it would have been so regarded even in the absence of any ventilation, be it spontaneous or artificial. It is also clear that any sign of life that existed in the child in the R v Iby case was non life sustaining and temporary. The Court also regarded it as relevant that but for the trauma occasioned by virtue of the motor vehicle accident, there was no reason to suppose that the child would not have been born as a healthy and living person. The Court observed that the viability of a foetus can now be established in a manner that was beyond the realms of contemplation when the born alive rule was adopted. Having regard to the contemporary ability to establish the viability of a foetus to a point almost before delivery, the Court was of the view that the born alive rule should now be applied consistently with contemporary conditions by affirming that ‘any sign of life after delivery is sufficient’.
His Honour also held that the Death (Definition) Act 1983 (SA) does not alter the requirements of the common law rule for the reasons expressed by Spigelman CJ in R v Iby and considered below.
The Deputy State Coroner formulated the essential question to be addressed as follows:[40]
[1.22]The question that I have to decide is whether the PEA that was detected in Tate’s heart by the intensive delivery care paramedic approximately 10 minutes after her delivery is a sign of life for the purposes of the born alive rule such as to provide this Court with jurisdiction to hold an Inquest.
[40] Ruling of Deputy State Coroner, at [1.22].
His Honour then proceeded to examine the evidence before him. He particularly noted that there was evidence before him that there were circumstances in which a newly born baby who was in PEA by reason of hypoxia might be successfully revived. Thus he stated:[41]
[1.23]Dr Wheaton described PEA as a ‘rhythm of survival’ and said that depending on the circumstances it was possible to successfully resuscitate a person in PEA depending upon the underlying cause of it. Both Ms Rowlands and Dr Wheaton told me that PEA was a pre-asystolic state, that is to say a circumstance involving the heart prior to its eventual cessation of any mechanical or electrical activity. However, Dr Wheaton believed, as did Ms Rowlands, that there were circumstances in which a newly born baby, who was in PEA by reason of hypoxia, might be successfully resuscitated.
[41] Ruling of Deputy State Coroner, at [1.23].
However, a most important part of his Honour’s judgment was to emphasise that the matter before him for decision was in fact a matter of law going to jurisdiction as distinct from a weighing of medical evidence and opinion; the phrase “sign of life” was to be construed as a legal term of art as distinct from the medical meaning or meanings that might be given to such a phrase by medical witnesses. Thus his Honour stated:[42]
[1.24]… I indicate that in any event, whether the PEA in this case was a sign of life is a matter for me to decide as a matter of law and fact, but I nevertheless take into account the views of Dr Wheaton. That said, it is evident to me that what the medical profession might regard as a sign of life might well differ from what a sign of life might be when considered in the context of the criminal law or the law relating to the jurisdiction of a court. Dr Wheaton did acknowledge that in some circumstances, depending on the underlying cause of PEA, one might regard PEA as a sign of life. One can well envisage circumstances in which a PEA exists in a person but there is some anatomical obstruction to the beating of the heart. In those circumstances one can readily understand that the PEA that still exists should be regarded as a sign of life even if the underlying cause of it cannot be reversed. For my part, it is difficult to see why there should be any distinction drawn between PEA as a sign of life in those circumstances and PEA as a sign of life in the current circumstances. The evidence was that even in cases of PEA caused by hypoxia, resuscitation and the establishment of a mechanical heart beat sometimes might be achieved. This was not able to be achieved in Tate’s case. However, I pose this scenario. A newly born child is detected in a state of PEA no doubt caused by a sustained period of hypoxia. It is not breathing and there is no mechanical heart beat. The child is successfully resuscitated. In those circumstances, in my view it would be very difficult to argue against the proposition that the child’s PEA should be viewed at least in hindsight as having been a sign of life. It is difficult to discern why a PEA that could not be successfully reversed should be differently viewed. Its characterisation as a sign of life in my view ought not depend on whether the child eventually dies or survives after resuscitative efforts that may or may not even be applied. The PEA was still a sign of life irrespective of the eventual outcome.
[1.25]One other matter of relevance to be discerned from Dr Wheaton’s evidence is his acknowledgement that bodily functions such as breathing and heart beat can be regarded as signs of life notwithstanding that they might only exist in the course of the dying process and are not in themselves life sustaining. He also, importantly in my view, acknowledged that PEA was a bodily process that went to constitute, along with other bodily processes, a person’s life. He also acknowledged that the electrical conduction in the heart was a necessary facet of a person’s continued existence. This is an important acknowledgment because the electrical activity in the heart, causing as it does the heart to beat, is in my lay view as much an essential ingredient of a person’s existence as a heart beat or breathing. Without the electrical activity in the heart, the person will die just the same as he or she would in the absence of a mechanical heart beat.
[1.26]In my view, it is important that also as a matter of law it is not an essential facet of a sign of life that the bodily function argued to be such a sign is in and of itself life sustaining. I draw this from the decision in R v Iby where it is said that a heart beat in the absence of any other bodily function would be sufficient to be regarded to be a sign of life. The heart beat in itself would not sustain life without other bodily functions such as respiration taking place, and the person in such a state will undoubtedly die, but the heart beat on its own is nevertheless regarded as a sign of life for the purposes of the law. I see no distinction between a mechanical heart beat that exists as a sign of life on its own and the existence of electrical activity in the heart that also cannot sustain human existence on its own but, like the beating of the heart, is a necessary bodily function in order to sustain life. Ms Rowlands told the Court that profound bradycardia (a very slow heart beat) will eventually descend to a point where it will not sustain life. Nevertheless, nobody could sensibly argue that the state of bradycardia was not a sign of life. In my view both the mechanical heart beat and the electrical activity that causes the heart to beat are to be equated as signs of life irrespective of the life sustaining quality of the heart beat or the PEA as the case may be.
[42] Ruling of Deputy State Coroner, at [1.24]-[1.26].
The “born alive rule” and the case of R v Iby
The so called “born alive rule” was addressed in argument in the present case largely on the basis that, since there is no statutory definition of a “person” in the Act, a definition must be supplied through the application of the common law generally and the “born alive rule” in particular.
The consequence is said to be that if there was no person born alive, there was never a “person” in existence at all for the purposes of s 3 of the Act and accordingly there can be no jurisdiction in the Coroner’s Court.
The decision of the New South Wales Court of Criminal Appeal in R v Iby constitutes the most thorough reported examination of the “born alive rule” in Australia and was the authority referred to, and relied upon, by the State Deputy Coroner in the present case.
In R v Iby Spigelman CJ gave a brief overview of the rule and its essential two-fold nature as follows:
[3]Where an offence involving killing or death of a newly born child arises as an element of a criminal offence, there is a long-established common law rule that the element cannot be established unless the baby was “born alive”. The issue that arises in this case is what is meant by the words “born alive”?
…
[25] The “born alive” rule can relevantly be traced back to the 17th century. …
[26]The born alive rule was applied in a number of distinct areas of the common law, including, relevantly, the law of homicide, where it had considerable practical significance in distinguishing the misdemeanour of procuring an abortion from the felony of homicide.
[27]The rule consists of two distinct components. First, that the foetus must have completely left its mother’s body (although the umbilical cord did not have to be cut…). Secondly, the child must be alive at or after birth, in that sense, had occurred. The case law does not always clearly distinguish between the two elements. …
(Authorities omitted)
The decision of the trial Judge in R v Iby
It is perhaps helpful to first consider the judgment of the trial Judge at first instance in R v Iby and then turn to the approach of the Court of Criminal Appeal.
The test propounded by the trial Judge is at [51]-[52] of his reasons[43] and [51] appears thus:
[51]... a newborn baby is born alive or lives when it is fully extruded from its mother and is living by virtue of the functioning of its own organs with or without medical stimulus or assistance.
(Emphasis added)
[43] Reproduced by Spigelman CJ in R v Iby (2005) 63 NSWLR 278 at [12].
Taken alone, the emphasised portion of [51] might be thought to constitute a relatively demanding test. However, his Honour immediately proceeded at [52] to define the phrase “living by virtue of the functioning of its own organs” in a very broad way. Thus his Honour stated:
[52]The Court further finds that a newborn is living by virtue of the functioning of its own organs when it breathes with or without assistance or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscle whether or not the umbilical cord has been cut or the placenta is attached and regardless of whether such function has been achieved by medical assistance or stimulus.
The words “or shows any other evidence of life” must be taken to be intended to bear a very broad meaning. This is so for several reasons.
First, the phrase is obviously in the disjunctive and intended to connote a stand alone alternative to any breathing, either assisted or unassisted.
Second, the words “such as” clearly indicate that what follows those words are merely examples of what may be sufficient as distinct from being an exhaustive list of the possibilities.
Third, the decision of trial Judge is here couched in terms of “any evidence of life”. The deliberate choice of the word “evidence” rather than “sign” serves to emphasise that his Honour sought to avoid the more limited ambit of indicia that might be suggested by the phrase “sign of life”.
If the above approach of the trial Judge in R v Iby is correct, one can readily appreciate the force of the Attorney–General’s submission in the present case, namely that PEA is no more, and no less, evidence of life in the same way as the beating of the heart, pulsation of the umbilical cord or a definite movement of voluntary muscle may also be considered to be examples of such evidence.
The decision of the Court of Criminal Appeal in R v Iby
The Court of Criminal Appeal came to the same conclusion as the trial Judge.
Spigelman CJ made it clear that the trial Judge’s test that any sign of life was sufficient, was to be understood in the sense of “any evidence of life”. His Honour initially stated:[44]
[20]… The appellant challenged his Honour’s test, which accepted that any sign of life was sufficient and submitted that his Honour misdirected himself or, alternatively, that the verdict is unreasonable and cannot be supported.
[44] (2005) 63 NSWLR 278 at 282.
In a later passage[45] that goes to the heart of the required analysis in the present case, Spigelman CJ further stated:
[40]The case law does not suggest that there is a common law definition of what constitutes ‘life’ for the purposes of the born alive rule. The issue is one of fact for the tribunal of fact, relevantly, in the case of serious crime, the jury. Medical evidence has usually been of central significance. Such evidence has often included evidence of direct observation, as well as inferences drawn from post mortem examination.
[41]The evidentiary basis of the born alive rule was indicated as early as 1537 when a court pronounced “crying is but a proof of life”. (See Atkinson supra at 154.) In the earliest modern authority (R v Sims (at 176; 1076), in which Sir Edward Coke appeared as Attorney General) the court said:
“... for if it be dead born it is no murder for non constat [it does not necessarily follow] whether the child were living at the time of the batterie or not, or if the batterie was the cause of the death, but when it is born living, and the wounds appeare in his body, and then he dye, the batteror shall be arraigned of murder, for now it may be proved whether these wounds were the cause of the death or not, and for that if it be found, he shall be condemned.” (Emphasis added, translation inserted.)
[42]Similarly, in R v Poulton (1832) 5 Car & P 329, 172 ER 997, the judge directed the jury (at 330; 998): “Whether the child was born alive or not depends mainly on the evidence of the medical men.”
[43]The analysis of the evidentiary basis of the rule by Forsythe (1987) supra is compelling. (See esp at 564-565, 575-577, 586, 589, 590, 605-507. See also Atkinson supra at 134, 146-150.)
[44]As in other cases, the medical evidence in R v Hutty (339, 342), to the effect that the child lived after being fully extruded, was left to the jury as an issue of fact without a direction of law as to what constituted life.
[45] (2005) 63 NSWLR 278 at 284.
As is clear from the whole of his Honour's judgment against the background of the materials to which he refers, the point that his Honour here makes is not that the common law did not attempt to state in a general way what was required under the born alive rule.[46] Rather, his Honour is making the critical point that the common law did not define “life” by reference to a test of whether one or more, or some combination of, particular listed physical phenomena or actions did or did not occur in a particular case under consideration.
[46] His Honour refers to a number of these general statements including that of Barry J in R v Hutty [1953] VLR 338.
Indeed, it is this very distinction that Atkinson had made in his learned article entitled “Life, Birth, and Live-Birth” published in 1904: [47]
Many judicial statements may be cited as to the nature of the test of the consummation of live-birth. Repeatedly is the proof of ‘independence’ of either ‘existence’ or ‘circulation’ insisted upon, seldom is that condition defined, even parenthetically.
[47] Atkinson S, “Life, Birth, and Live-Birth” (1904) 78 LQR 135 at 143.
I agree with Spigelman CJ[48] that Mr C.D. Forsythe in his rather more recent article[49] makes a compelling case that the rule did in fact originate as a rule of evidence in this sense and that, on balance, it should be taken to have essentially retained that character over the centuries.[50]
[48] In R v Iby 63 NSWLR 278 at 285.
[49] Forsythe CD, “Homicide of the unborn child: The born alive rule and other legal anachronisms” (1986-7) 21 Valparaiso LR 563. One point with which I would disagree is Mr Forsythe’s assertion by way of analogy that the year and a day rule in homicide was also a rule of evidence rather than a substantive element of that offence. I would differ in this regard but it is of no moment since that aspect is only a very small part of his thesis.
[50] In light of the fact that the various judicial and extra-judicial statements are made over a period of hundreds of years in many different contexts, and always by reference to a different evidence matrix, a substantial degree of inconsistency and confusion is expected, and can readily found.
With respect, Spigelman CJ sums the matter up perfectly when he proceeds from the previous passage cited to state:[51]
[45]The evidentiary basis of the born alive rule must be kept in mind in order to understand the case law. In each reported case there is a particular constellation of evidence which was relied upon to establish whether or not the particular child was alive at or after birth. The observations made by judges, including directions to the jury, in each case must be understood in the context of the particular evidence in the case. For that reason, the observations and directions are not necessarily reconcilable.
[51] R v Iby (2005) NSWLR 278 at 285 [45].
Thus Spigelman CJ proceeds, as had the trial Judge, to the use of neutral language, adopting the words “indicia” and “indication”. His Honour states:[52]
[56]Authority is clearly in favour of a conclusion that the common law “born alive” rule is satisfied by any indicia of independent life. There is no single test of what constitutes “life”. …
…
[58]The clearest authoritative statement that the born alive rule can be satisfied by any indication of life is the judgment of Vice Chancellor Stuart in a civil case, Brock v Kellock (1861) 30 LJ Ch 498; 3 Giff 58. His Lordship referred to the evidence of the doctor who attended at the birth. He had felt the birth cord pulsating but could not give evidence that the child had taken a breath. His Lordship rejected the contrary medical evidence that asserted, as a matter of opinion, that in the absence of evidence of breathing after the baby had exited the mother’s body it could not be said that the child was born alive. His Lordship accepted the evidence of the doctor present at the birth and said at (504): “...in order to prove the existence of animal life, I think that proof of the performance of one clear vital function is enough. I think it is enough to prove pulsation in order to prove the existence of life.”
[52] (2005) NSWLR 278 at 287 [56].
It is interesting to note that Atkinson in his article “Life, Birth, and Live-Birth” mentions that Dr Swaine Taylor F.R.S. (the Doctor whose evidence had been preferred by the Court in Brock v Kellock), wrote in a letter: [53]
We should not affirm that a child is dead in law, until it is completely dead in a physiological sense, and all vital actions have ceased.
[53] Atkinson S, “Life, Birth, and Live-Birth” (1904) 78 LQR 135 at 146.
In R v Iby,[54] Spigelman CJ referred to a further decision of Fish v Palmer which unfortunately appears to be unreported but is mentioned in several text books. It is worthwhile adding the following observation by Atkinson in relation to that decision in his article “Life, Birth, and Live-Birth”:[55]
This Exchequer case was tried in 1806 (July 14), the issue being directed from the Equity side of the court. There is no official report. Verbally identical accounts occur in contemporary newspapers, The Times is silent. A decade after the birth of a well-formed child, evidence was given that (1) the accoucheur, since deceased, declared the foetus to be living an hour before its birth; (2) he acted, after its birth, as though it was not dead; (3) the two women also present (one since deceased) had commented on ‘twice a twitching and tremulous motion of the lips.’ Lord Macdonald C.B. put it to the jury: ‘Was there any spark of life whatever in the child at its birth or not?’ The verdict affirmed a vital scintillula sufficient to establish a contingent tenancy by the curtesy.
[54] (2005) NSWLR 278 at 288 [61].
[55] Atkinson S “Life, Birth, and Live-Birth” (1904) 78 LQR 135 at 154.
Although decided almost exactly two hundred years before R v Iby, this direction to the jury – a scintilla test – seems to conform very closely with the views of Spigelman CJ and the decision to which his Honour came.
The possibility of resuscitation
As has been seen above, the Deputy State Coroner considered that the possibility of resuscitation in some cases of babies displaying PEA tended to indicate that PEA in general should qualify as a sign of life or, in the sense that I have indicated in accord with Spigelman CJ, as “evidence” or “an indication” of life.
Once again, it is interesting to note that the importance of this matter is by no means a new thing. For example, Atkinson in his article “Life, Birth, and Live-Birth” stated: [56]
Medical men have signed declarations too hastily, for only after vigorous treatment and great delay, have some children cheated death by drawing their first breath—snatched from the grave…
[56] Atkinson S “Life, Birth, and Live-Birth” (1904) 78 LQR 135 at 155. Atkinson in this context makes some extremely interesting comments concerning the original meaning of “still-born”, explaining that it originally meant “born alive but still” as distinct from the quite different present day meaning of “born dead”. Thus he states (1904) 78 LQR 135 at 155-156: “The still-born differs from the dead born; the former is alive but its intra-uterine apnoea persists…, the maintenance of the rectal temperature and the possibility of revival mark it as not defunct. … Apparently a still-born child was one that could not cry when born; for in the absence of even a still small voice, it was numbered among the silent dead.”
During argument of the present application attention was drawn to this matter of a possible attempt to resuscitate a person displaying PEA. One passage is as follows:
Peek J:If you are an ambulance officer and you arrive on a scene and you with your modern tools are able to detect this electrical impulse but nothing else, then as the ambulance officers said in this case indeed, but I put it more in the generality, ‘‘There is a real reason why we should attempt to resuscitate given that sign we have detected because we are able to distinguish this from a body that is definitely a corpse”. Here we have, so they say, a sign of life. They attempt to resuscitate and in some cases may be successful so that’s just the central issue, it seems to me. Why is that not a sign of life?
Dr Freckelton: It is central, but with respect, what they say is that they attempt to resuscitate just as ambulance officers attempt to resuscitate people who appear to have recently died in the hope that they may be successful. But it does not follow from the fact that they attempt to resuscitate and occasionally are successful, that that which they attempt to resuscitate is alive at that time and that’s a really important distinction.
I am still of the view that this matter of possible resuscitation is very important and that the answer given by Senior Counsel for the plaintiff – which seems the only answer that could be given – confirms rather than negates the strength of the argument for the Attorney-General that PEA is a sign of life within the born alive rule.
It is quite true that ambulance officers, who are famously keen to resuscitate, might well attempt to resuscitate what appears to be a completely lifeless corpse as a matter of hope. However, if faced with a choice between attempting to resuscitate that apparently lifeless corpse on the one hand and a body which is displaying PEA on the other hand, who can doubt which the ambulance officer would prefer? And if one were to question the basis of that preference, who would be surprised to hear the laconic reply “Of course we would prefer to attempt to resuscitate a body showing PEA – it’s a sign of life!”
It is also my view that a very small reading of PEA will be quite sufficient to satisfy the “born alive rule”. That this is so must follow from the various decisions to the effect that the smallest amount of breathing or heart-beat will constitute a “sign of life” and even in circumstances where it is patent that the baby will not be able to survive.
The matter is summed up in the following passage in the transcript:
Peek J:I think your position is, isn’t it, that in relation to what I might call the older signs of life that you’ve been referring to, such as breathing, you would take an objective approach, wouldn’t you? In other words, you would say ‘you don’t have to assess how much breathing in any particular case, one breath is enough’.
Dr Freckelton: That’s so.
Peek J: So almost an objective test rather than a subjective test, if you follow.
Dr Freckelton: Yes.
Peek J: That would apply to heart-beat and the other signs?
Dr Freckelton: Yes.
Peek J:If the court thought that PEA was indeed a sign of life, that approach would also have to apply to PEA, wouldn’t it?
Dr Freckelton: I would say so, yes. … The case authorities dating back a long way certainly endorse the formulation in respect of those other indicia in the way your Honour put it. … Were PEA to be included it would, I suppose, have to be that if there was any pulseless electrical activity, as against a particular amount of it, that would be sufficient to constitute life.
Other South Australian legislation
Death (Definition) Act 1983
Senior Counsel for the plaintiff argued that there should be a consistent, or not inconsistent, definition of both life and death. As I understood him, he essentially contended that the state of the baby in the present case, after full separation from the mother, was at all times within the definition of “death” in s 2 of the Death (Definition) Act 1983 and therefore it was not possible that the baby had been born alive.
That section defines death thus:
2 –– Definition of death
For the purposes of the law of this State, a person has died when there has occurred-
(a) irreversible cessation of all function of the brain of the person; or
(b) irreversible cessation of circulation of blood in the body of the person.
The words of this provision and the words of the NSW statute considered in R v Iby are exactly the same and I consider that the Acts are not relevantly distinguishable. It is true that the titles of the Acts are different but, in my view, the intention of both legislatures was that the above provision should be “generally” applied and Spigelman CJ accepted that that was so in his judgment in R v Iby.[57]
[57] (2005) NSWLR 278 at 289 [69].
As is well known, the passage of such legislation was made necessary by specific developments in the context of organ transplants – a matter connected to an examination of the transition from life to death rather than with the quite different concept of birth. As Dr Freckelton, Senior Counsel for the plaintiff in the present case, has elsewhere written:[58]
With the development of organ transplantation, the need for vital body organs to be available for transplantation posed practical, legal and ethical dilemmas for the community. The traditional medical view that death could be diagnosed when the circulation of blood and breathing had stopped was clearly inadequate. The advent of intensive care techniques whereby breathing and the circulation of blood could be artificially sustained directly contradicted old attitudes regarding the medical determination of death. In order for organ transplantation to occur, a distinction had to be drawn between somatic death, where all the organs and tissues of the body had ceased to function, and the notion of isolated brain death, whereby there was no realistic hope for recovery of the function of the brain that maintains physiological processes by regulating and sustaining heart and lung function, either unsupported or supported by medical technology. Such a bodily state would permit surgeons to remove viable body organs such as hearts, lungs, kidneys and livers from brain-dead people for immediate transplantation.
The notion of brain death had clearly been understood medically for some time but was perhaps articulated most clearly for the first time in 1959 with the use of the phrase ‘le coma dèpassè’ (literally, a state beyond coma). The idea that a patient could be medically and legally dead and yet have normal (albeit medically supported) heart and lung function raised the important issue of how potential organ donors should be properly assessed as being dead. With the growth of the medical field of organ transplantation, community concerns that organs would be harvested from people who were not in fact dead emerged. It became clear that traditional medico-legal approaches to the definition of death would need to be reviewed and that new definitions of death and new death diagnosis standards were required.
(Footnotes omitted)
[58] Freckelton I and Ranson D, Death Investigation and the Coroner’s Court (Oxford University Press, 2006), at 132.
I respectfully agree with the treatment of this legislation by Spigelman CJ and consider it to be sufficient simply to adopt gratefully the following relevant passage in his Honour’s judgment:
[68]The appellant’s submissions appear to rely on two alternative arguments with respect to the implications of s 33 of the Human Tissues Act 1983, (set out at 282 [21] supra). First, it was suggested that the Act operated of its own force to change the common law by reason of the fact that it introduced a definition of death “for the purposes of the law of New South Wales”. The second argument appears to be that the common law should be adapted, so that the definition of life coincides with the new statutory definition of death.
[69]In Ansett Australia v Dale (2001) 22 NSWCCR 527 at 538 [31], the Court of Appeal described the introductory words of s 33 as meaning that the definition of death was one “of general application”.
[70]The thrust of the appellant’s submissions was that it would be anomalous if a person could be classified as “dead” for virtually all purposes of the law of New South Wales, but also be classified as “alive” for some of those purposes, specifically with respect to the application of the common law born alive rule to criminal offences. I cannot myself identify any relevant anomaly, other than perhaps a semantic one, which should not be determinative.
[71]It is important in this, as in so many contexts, to bear in mind Fullagar J’s warning in Attorney General (NSW) v Perpetual Trustee Co Limited (1952) 85 CLR 237 at 285 to resist “the temptation, which is so apt to assail us, to import a meretricious symmetry into the law”. Although a similar argument has succeeded in the United States (see State of Wisconsin v Cornelius 152 Wis 2d 272 (1989)), I would not adopt it here.
[72]The scope and purpose of the Human Tissue Act, to which I will further refer below, providing as it does a definition of death of general application, does not indicate any legislative intention to alter the concept of “life” for purposes of the law, specifically the born alive rule. There is no purpose of the legislative scheme that would be served by extending its application in this manner, on the basis of a semantic analogy of the character relied upon by the appellant.
[73]The Act finds its origins in the consideration of brain death by the Australian Law Reform Commission Report, Human Tissue Transplants, No 7 (Canberra, AGPS, 1977). The purpose of the rule proposed by the Commission, and eventually adopted, is indicated in the following observation (at 53 para 118):
“[118] ... In practice the determination of death involves a judgment that the patient’s progress to a state of nonliving or non-existence is sufficiently far advanced to be diagnosed with certainty as irreversible.”
[74]The report went on to note that irreversible cessation of all brain function is referred to as brain death. It recommended a definition of death which included reference to brain death. The definition is applicable to the case of a person who had been alive, where the issue is to determine the time of death. The born alive rule is concerned with the identification of life at a time after the baby has been completely separated from his or her mother’s body. This is not the reciprocal of “death”, as now defined, because it adopts an artificial and non-scientific standard of when life begins, that is, after delivery.
[75]As indicated above, the second way in which the proposition appeared to be put by the Appellant was that the common law should be adapted so that the born alive rule is consistent with the definition of death. There is only a single common law of Australia (see Lange v Australian Broadcasting Corp (1997) 189 CLR 520; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503).
[76]The Human Tissue Act is part of a scheme which is in large measure a national scheme. The Australian Law Reform Commission recommendation of a definition has now been adopted in all States and Territories, other than Western Australia. (See s 45 of the Transplantation and Anatomy Act 1978 (ACT); s 27A of the Human Tissue Act 1985 (Tas); s 23 of the Human Tissue Transplant Act 1979 (NT); s 2 of the Death (Definition) Act 1983 (SA); s 41 of the Human Tissues Act 1982 (Vic); s 45 of the Transplantation and Anatomy Act 1979 (Qld).) There is one difference: the definition in Queensland is only “for the purposes of this Act”. Other States adopt the New South Wales formula of “for the purposes of the law of ...” the relevant jurisdiction.
[77]There are considerable difficulties in developing the common law by analogy with statute. See the discussion in Esso Australia Resources Australia Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 especially at 61 [23], 73 [64], 83 [91] and 99 [144]. Here there is a much closer approximation to a national uniform regime than that considered by the High Court in Esso Australia Resources Australia Ltd. Only Western Australia wholly fails to adopt the definition and only Queensland limits its application to the particular purposes of the Transplantation and Anatomy Act 1979 (Qld). Nevertheless, there is no uniformity.
[78]More significant, however, for present purposes is the above analysis with respect to the application of the statutory definition of death to the common law born alive rule. The courts should also resist the temptation to introduce a meretricious symmetry between the common law and statute law. The definition of death does not, other than in the context of semantic symmetry, require a corresponding definition of life. This is particularly so for the purposes of a common law rule which, as I have indicated above, is itself anachronistic and which adopts an artificial and non-scientific concept of when life begins. Other than in semantic terms, this test for the born alive rule is not the reciprocal of death as now defined by statute.
Births, Deaths and Marriages Registration Act 1996 (SA)
Senior Counsel for the plaintiff further argued[59] that “the traditional approach of the law has been to regard coroners as having no jurisdiction in respect of ‘still-births’ and cited adequate authority for that proposition. He then attempted to invoke the following definitions in s 4 of the Births Deaths and Marriages Registration Act 1996 (SA):
[59] Plaintiff’s Outline of Argument at [33].
4––Definitions
…
birth means the expulsion or extraction of a child from its mother;
still-birth means the birth of a still-born child;
still-born child means a child of at least 20 weeks’ gestation or, if it cannot be reliably established whether the period of gestation is more or less than 20 weeks, with a body mass of at least 400 grams at birth, that exhibits no sign of respiration or heartbeat, or other sign of life, after birth but does not include the product of a procedure for the termination of pregnancy.
It seems to me that a number of responses may be made to that argument.
First, it is to be noted that the above definitions contained in s 4 of the Births, Deaths and Marriages Registration Act 1996 are prefaced at the start of the section with the words “In this Act”. Accordingly it is difficult to see how such definitions can play any part beyond the borders of the particular Act.
Second, even if one were to take into account the definition of “still-born child” above,[60] it seems to me that this does not carry the argument of the plaintiff forward. One notes that for a child of at least 20 weeks gestation (as the present child was) to be classified as “still born”, it must exhibit “no sign of respiration or heartbeat, or other sign of life, after birth.”
[60] I am sure that the modern meaning of the term “still-born” is here intended, namely a child born dead. See the discussion above at footnote 56.
Bearing in mind that virtually every example of a sign of life that one can find in the reported cases is a sign that, in one way or another, indicates the presence of respiration or heartbeat, it would appear that the words “other sign of life” as used here were intended to have a broad meaning.
Indeed, in the light of the various other considerations referred to above, it seems to me that if that definition section were of general application, it would in fact constitute an argument in favour of the Attorney-General’s position since, in my view, PEA would clearly come within the meaning of the words “other sign of life” as used in this section.
Contexts and consequences
It is important to appreciate that the “born alive rule” historically appears in a number of quite different contexts and, due to its somewhat uncertain historical origins and development, its application tends to differ somewhat according to the precise context of its application.
Thus, in R v Iby, the context was a charge of manslaughter constituted by dangerous driving by the defendant resulting in a collision with a car driven by a lady who was 38 weeks pregnant, the baby being delivered by caesarean section in poor condition and pronounced dead exactly two hours after delivery. The defence was that the offence of manslaughter required proof of the element that the victim was “born alive”. In such circumstances, one may appreciate that the overall onus of proof in a criminal prosecution may tend to permeate the various aspects of the case.
In the present case the context is quite different: It is the determination of the jurisdiction of the Coroner’s Court. As stated above, the ambit of the jurisdiction invested in any court by the relevant enabling statute should generally be construed broadly.
The statutory question at the heart of the present case is “Can it be established that a ‘death of a person’ has occurred?” However, since it is clear that the baby is now dead, the precise question therefore becomes: “Was the baby ever ‘a person’ within the meaning of that term as used in the definition section in the Coroners Act 2003?”
It is, of course, only human to think of an unborn child as “a person” and nor is it “wrong” to do so. One can sympathise with a certain bewilderment by the member of the public who is told that a child is not a person while clearly moving in the womb or when the head has emerged or when first fully separated from the mother but suddenly, on taking its first breath after such separation, it is suddenly transformed into “a person” for the first time.
Indeed, the Deputy State Coroner expressed much the same view in the present case when he stated:[61]
[1.6]… It will be seen from those two requirements that a child who dies in the womb prior to its complete removal from the mother and who therefore exhibits no sign of life following that full delivery will not be regarded as having existed as a person in the eyes of the law, notwithstanding that the evidence clearly establishes that at some point in time, even very close to the child’s delivery, it had existed as a healthy and viable foetus. I would only add that for some time now academic writers and jurists have regarded the born alive rule as anachronistic and have pointed to the fact that physiologically there is little to distinguish the unborn foetus as it exists immediately prior to its delivery on the one hand from the healthy child immediately following delivery on the other. It is a matter for the legislature as to whether or not these technical and some might say immaterial niceties, based as they are upon the need to demonstrate life only after the child has been ‘fully extruded from the mother’s body’, should continue to be entertained in the context of the investigation of per-natal death.
[61] Ruling of Deputy State Coroner, at [1.6].
It is considerations such as these that may lead to a view that the born alive rule might be abandoned. Similarly, in R v Iby, Spigelman CJ observed:[62]
[63]The born alive rule is, as I have indicated above, a product of primitive medical knowledge and technology and of the high rate of infant mortality characteristic of a long past era. There is a strong case for abandoning the born alive rule completely, as has occurred by statute in many states of the United States and by judicial decision in Massachusetts, South Carolina and Oklahoma. … It has also been modified in some states by removing the requirement of complete separation from the mother’s body. … The rule has also been widely criticised in other states, although regarded by some courts as too well entrenched to overrule. …
[64]The context in which the rule arises for present consideration is a context in which the appellant wishes to avoid criminal responsibility for manslaughter of a baby which was injured as a late term foetus, indeed was fully developed in perfect condition and within a week or two of actual birth. In the current state of medical technology and with the extremely low rate of stillbirths in the Australian community, the born alive rule, if it is to survive at all, should continue to be applied, as Ellis DCJ did, so that any sign of life after birth is sufficient. This happens to be consistent with the authorities
(Authorities omitted)
[62] (2005) NSWLR 278 at 288.
However, both the Deputy State Coroner in the present case and Spigelman CJ in R v Iby stopped short of suggesting that the rule could be abrogated by the courts and, I consider, for good reason.
Putting aside the question of its precise formulation, it is my view that there is a definite need for the continued existence of some form of rule to determine whether or not a baby is “born alive”. It is particularly important to appreciate that a number of distinctions must be drawn, and borders must be erected, so as to delineate and protect quite different interests which, unfortunately, are sometimes in opposition to each other.
I particularly note the comments of Ms Kristin Savell in her article “The Legal Significance of Birth”:[63]
A number of questions arise: if the ‘born-alive’ rule was to be abandoned, what criteria would the law recognise as evidence that a foetus was the sort of being that could be the victim of homicide? Would legal liability for the death of a foetus extend beyond third party assailants to include doctors performing late terminations of pregnancy and even pregnant women themselves? Could abandonment of the rule be confined to the criminal law or would it inevitably extend to the civil law as well? If so, could we see wardship jurisdiction exercised over a foetus, as was suggested by the dissenting judges in Winnipeg Child and Family Services (Northwest Area) v G? It is, no doubt, due in large measure to the difficulties raised by these questions that, as the Court noted in R v Iby, the rule ‘has been regarded by some courts as too well entrenched to overrule’.
The difficulties raised by these questions suggest that there may be very good reason to be cautious about abandoning the ‘born-alive’ rule, notwithstanding the ‘anachronistic, indeed antiquated, factors’ upon which the rule was originally based. The legal significance of birth remains a crucial factor in safeguarding the autonomy of women in decisions concerning pregnancy termination and obstetric treatment and offers a measure of protection against oppressive state supervision in the interests of the foetus. It is arguable, in light of contemporary attitudes to autonomy, that there are substantive reasons for continuing to recognise birth as legally significant, even if the historical basis for the ‘born-alive’ rule no longer seems appropriate. Accordingly, any modification of the rule should be carefully circumscribed and confined to the purpose of attributing criminal responsibility to third party assailants. The Court of Appeal’s contextual approach to configuring the maternal body suggests that this would be possible
(Footnotes omitted)
[63] Savell K, “The Legal Significance of Birth” (2006) 29(2) UNSWLJ 200 at 205.
In answer to Ms Kristin Savell’s questions “Could abandonment of the rule be confined to the criminal law or would it inevitably extend to the civil law as well?”, I think the answers are clearly “no” to the first question and “yes” to the second.
Of course, none of this is new. Some of the areas in the civil jurisdiction where the born alive rule may assume importance include the law of torts, family law, succession and testamentary bequests and various equitable doctrines all of which have been the subject of a plethora of authorities and academic debate over the centuries.[64]
[64] For some of the older authorities, see Atkinson S “Life, Birth, and Live-Birth” (1904) 78 LQR 135 but particularly at 151-152; see also Lynch, “The Coroner, the Forensic Pathologist and the Unborn Child” (2000) 7 Journal of Law and Medicine 415 at 416
As just one example, one may note the judgment of Slicer J in Re Estate of the Late K and Re the Administration and Probate Act 1935: Ex Parte the Public Trustee[65] where his Honour referred to a number of civil doctrines and consequences that may turn on the application and content of a born alive rule. His Honour stated:[66]
[7]The common law has refused to confer legal rights on a human embryo or foetus unless, and until, it is born and has a separate existence from its mother (Attorney-General for the State of Queensland (Ex Rel Kerr) and Another v T (1983) 57 ALJR 285 and Re F (in utero) (1988) 2 All ER 193. Civil law recognised the maxim (infans conceptus pro natura labetur quoites de commodus ajus agiter) which means that the foetus enjoys certain privileges provided that it is born alive and viable (see Crimes Against the Foetus, Law Reform Commission of Canada 1989, Paper 58, p25, n62).
[8]The foetus is considered to have potential or contingent legal interest which vests and becomes enforceable upon its live birth. Those contingent interests are recognised in the law of succession and tort (see Manns v Carlow (1940) VLR 282 and Watt v Rama (1972) VR 353) and includes the right to seek provision from an estate under testator family maintenance legislation (V v G (1980) 2 NSWLR 366).
[65] (Unreported, Supreme Court of Tasmania, Slicer J, 22 April 1996, Judgment No. A16/1996).
[66] Re Estate of the Late K and Re the Administration and Probate Act 1935: Ex Parte the Public Trustee (Unreported, Supreme Court of Tasmania, Slicer J, 22 April 1996, Judgment No. A16/1996) at [7] and following.
His Honour proceeded to consider some of the many equitable doctrines of succession relating to the contingent rights of a child “en ventre sa mere” – which is, of course, made relevant to the present matter of discussion by his Honour’s emphasis that such rights are contingent upon it being shown that the child was later “born alive.”
Of a broader “over arching” nature, fundamental matters such as the relationship between the mother and the developing foetus, the changing nature and viability of the developing foetus, and associated matters including the respective “rights” of the mother and an unborn foetus may potentially be affected by any modification of the nature and content of the “born alive rule”.
Further, it may also be suggested that the present question is to be debated in the broader context of various matters which may be affected by any decision given here. Thus, it has been suggested both in the present case and in previous cases[67] that a decision extending or diminishing the ambit or interpretation of the “born alive rule” may have consequences in a number of areas including such matters as termination of life support systems, organ transplants and the criminal law generally.
[67] Notably R v Iby (2005) 63 NSWLR 278.
On a more indirect level, it has been suggested both here, and in previous cases,[68] that statutes and the common law relating to the concept of “death” may be relevant to, and inform the interpretation of, the “born alive rule”.
[68] Again, notably R v Iby (2005) 63 NSWLR 278.
As to the criminal law, again there are various contexts in which the matter may arise including charges of homicide, aggravated assault, abortion and driving offences alleged to be committed by a “third party” and impacting on the unborn child and/or the mother; as well as similar charges sometimes brought against the mother herself.[69]
[69] The present is not the time to reflect upon all of the difficulties that may, and do, arise in this and associated areas of the criminal law. A good place to commence such consideration is the suite of cases constituted by R v Sullivan & Lemay [1991] 1 SCR 489, Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, R v King [2003] NSWCCA 399 and R v Iby (2005) NSWLR 278.
I consider that enough has been said to demonstrate that all of these matters are interlinked in such a close and interactive way that if it be thought that substantial change should be made, it is a matter for the legislature and, with respect, only after the most thorough and broad ranging review of all of these areas.
The present application for judicial review
Application was made by the plaintiff for orders preventing the Deputy State Coroner from conducting an inquest into the circumstances of the “birth” or “death” of the baby on the basis that it was beyond his jurisdiction to do so.[70]
[70] It is assumed that the basis of judicial review asserted in the present case is jurisdictional error rather than error on the face of the record since, in South Australia, the limitations on the ambit of “the record” adumbrated in Craig v South Australia (1995) 184 CLR 163 continue to apply with full force.
The Coroners Act 2003 establishes the Coroner’s Court as a court of record with such seals as are necessary for the transaction of its business.[71] It is an inferior court of record and is therefore to be contrasted with an administrative tribunal for the purposes of judicial review.
[71] Coroners Act 2003, ss 10-12.
In Craig v South Australia[72] the High Court delineated the ambit of jurisdictional error in a case of this type and stated in relation to the position of an inferior Court: [73]
[12]Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.
[72] (1995) 184 CLR 163.
[73] Craig v South Australia (1995) 184 CLR 163 at 177 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Their Honours later contrasted the position of an administrative tribunal with that of a court and stated:[74]
[14]At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. …
[15]In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
[74] (1995) 184 CLR 163 at 179.
In the more recent decision of the High Court in Kirk v Industrial Relations Commission of New South Wales,[75] the High Court held that the NSW Industrial Court had committed jurisdictional error. Their Honours considered the decision in Craig but, in my view, did not qualify or alter its present application. They said of the case before them:[76]
[74]The first of the errors in question in this case – the errors of construction of s 15 of the OH&S Act – can be identified as a jurisdictional error of the third kind identified in Craig. That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.
[75]The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make.
[76]In addition to the error just considered, the Industrial Court misapprehended a limit on its powers by permitting the prosecution to call Mr Kirk at the trial. The Industrial Court’s power to try charges of criminal offences was limited to trying the charges applying the laws of evidence. The laws of evidence permit many forms of departure from the rules that are stated. Many, perhaps most, departures from the strict rules of evidence can be seen as agreed to by parties at least implicitly. But calling the accused as a witness for the prosecution is not permitted, even if the accused consents to that course. The joint trial of Mr Kirk and the Kirk company was not a trial conducted in accordance with the laws of evidence. The Industrial Court thus conducted the trial of Mr Kirk and the Kirk company in breach of the limits on its power to try charges of a criminal offence.
[75] (2010) 239 CLR 531. Joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ and a separate judgment of Heydon J concurring in the result but dissenting as to the form of the orders.
[76] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 574-575 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Conclusion
While there are certain subtleties associated with the above two decisions, I suggest, perhaps optimistically, that the present case is relatively clear.
I find that the Deputy State Coroner was correct in his delineation of the test to be applied, namely that it is the “born alive” test as formulated by the Court of Criminal Appeal in R v Iby[77] that is determinative and that “any sign” (in the sense of “any evidence”) of life will satisfy that test.[78]
[77] (2005) 63 NSWLR 278.
[78] His Honour’s correct formulation of that test is to be contrasted with the incorrect construction of the OH&S Act by the Industrial Court in Kirk v Industrial Relations Commission of NSW.
Having correctly formulated the test, it is my view that even if his Honour then went on to err in his analysis of the evidence, or in the application of the correct test to the evidence before him, such later error would not be a jurisdictional error and would not be amenable to judicial review on that or on any other basis.
However, irrespective of what may be the formal limitations of judicial review in the present case, I indicate that it is my view that his Honour did not err and that the conclusion he ultimately reached was indeed the correct result. I consider that, as a matter of legal analysis, the evidence adduced as to the presence of PEA did satisfy the requirements of the born alive rule as it should now be interpreted and, accordingly, the Deputy State Coroner was correct in deciding that he has jurisdiction to proceed to hold the proposed inquest.
It therefore follows that I consider that the application for judicial review should be dismissed.
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