Haydon v Chivell (No 1) No. Scgrg-99-902 Judgment No. S382

HAYDON v CHIVELL (No 1)
[1999] SASC 382

Full Court: Doyle CJ, Debelle and Bleby JJ

DOYLE CJ: The court is asked to grant injunctions to restrain the disposal of the remains of deceased persons, that disposal being by burial or by cremation.
One of the deceased persons is to be cremated this evening, one is to be buried tomorrow, and one is to be buried or cremated in about a week. As things stand at present, the others are to be disposed of after that.
The remains in question have been released by the Coroner, acting under the Coroners Act.
The Court has part-heard and adjourned an appeal against the validity of the Coroner's order for release. The injunctions that are sought from the Court are sought in aid of the appeal against the release order. If granted, the injunctions would preserve the remains in the event of the appeal being successful.
The application to the Court raises difficult issues. The Court has had to consider the prospects of the appeal against the Coroner's release order succeeding, the usual question of the balance of convenience, and the court has also had to consider matters relevant to the general discretion that it has in relation to the grant of injunctions. The court has had to deal with the matter at very short notice, for obvious reasons.
For the reasons that follow, we are of the opinion that the injunctions should not be granted. These reasons are the reasons of all of us.
In this case, further post-mortems are sought to be carried out on the remains, in case that might provide material of assistance for the defendant, who is the present applicant, in criminal proceedings that he faces. At present, there is no basis for saying that those further post-mortems would, in fact, provide material of assistance to the defence. Of course, the post-mortems might do that, but it cannot be put any higher than that. As well, there is material before the court that indicates that there can be no confidence that a second post-mortem at this relatively late stage will be of value, bearing in mind changes in the remains and in the condition of the remains that will have occurred with the passage of time.
A further matter to consider is that the grant of an injunction would have a serious effect on the family of the deceased persons. Some of those families, as I have indicated, are expecting to bury or cremate a family member very shortly. The making of an order, at least in the case of those families, at this very late stage, would only add to the effects on them of the involvement of the relevant deceased person in the alleged crimes.
The family members were given notice only in the last day, as a result of the court's intervention. Reasons have been put forward for not giving notice any sooner, and it is not necessary to comment on those reasons at this stage. But the fact is that, in some cases at least, if the injunction were now granted, it would come almost at the final moment in the case of the families affected, and that would add to the upset caused to those families.
Another matter to consider is that, if the appeal were to succeed - that is, the appeal against the Coroner's release order - and if the release order were to be quashed, the question would then arise of whether the Coroner could still assert control over the remains. It is not clear that he can. That is a matter that still has to be decided.
If the Coroner is unable to reassert control over the remains, there is then a further obstacle to any further post-mortem, and one must bear in mind that a further post-mortem is the ultimate aim of the appeal and the injunctions. If the Coroner cannot reassert control over the remains under the circumstances, that would probably be an insuperable obstacle to any further post-mortem. That is so because there is no basis apparent, and none has been identified to us, either at common law, or by statute, for requiring the next of kin to agree to the present applicant having a second post-mortem performed, should the body remain in the control of the next of kin and not return to the control or custody of the Coroner.
Even if the Coroner were to regain control of the remains, and even if he has power, either to direct a further post-mortem, or to consent to a further post-mortem, both of which are uncertain, the Coroner might refuse to do either. That decision could be challenged in this court by way of judicial review, but, if the reasons that the Coroner gave were adequate, and if there was no other matter affecting the validity of his decision, then that decision itself would not be able to be set aside. In other words, depending upon the course that the Coroner took, a further post-mortem still might not result. Accordingly, not only is the value of a further post-mortem uncertain; it remains uncertain whether a further post-mortem would ever take place.
A final, although I stress a minor matter, is that if injunctions are granted at the last minute, certain costs are likely to be inflicted on the families of the deceased whose remains are about to be disposed of. Those costs would have to be borne by them, the present applicant not being in a position to offer an undertaking as to those costs.
It is for those reasons, in the exercise of our discretion, and weighing up all factors relevant to the balance of convenience, that we have decided that injunctions should not be granted.
We reserve the right to amplify these reasons, should that be necessary or appropriate, bearing in mind that these reasons have been prepared immediately prior to me announcing them, and immediately after hearing argument.
Our present view is that we should press on with the hearing of the appeal tomorrow and, on that occasion, hear any submissions Mr Stratford wishes to put on the appeal against the judge's striking out of the application for judicial review, and, if we are able to complete the appeal tomorrow, as we would aim to, we would anticipate being able to give a fairly prompt decision on the appeal itself.
DEBELLE J: I agree with those reasons. I have nothing to add. As the Chief Justice said, those reasons were prepared in conference, and are the reasons of us all.
Perhaps the only thing that I would add, as a rider, is that, even if the Coroner could regain possession of these bodies, and even if there were to be ultimately a further, or a second post-mortem examination, the delay in the conduct of that examination can only exacerbate the difficulties of that examination yielding any useful result.
BLEBY J: I agree. I have nothing to add.

[1999] SASC 382

5 August 1999