Haydon v Chivell No. Scgrg-99-902 Judgment No. S315

[1999] SASC 315

HAYDON V CHIVELL

Civil
Ex Tempore

LANDER J. This matter first came before me yesterday, as a matter of urgency. The original application made by the applicant was for judicial review of an authorisation made by the coroner on 22 July 1999, where the coroner authorised the disposal of the human remains of ten persons.
When the matter first came before me, the coroner was not represented. However, Mr Mark Johns, an assistant Crown solicitor, attended on behalf of the coroner for the purpose of assisting me in reaching my conclusion on the application. He was able to provide me, and the applicant, with certain facts, and also to convey to me the coroner’s attitude in respect of the application.
It became clear during the application that the applicant would not obtain the relief the applicant required without making a further application, or applications. The applicant therefore applied for an interim injunction directed to a number of funeral directors seeking orders preventing those funeral directors from cremating, interring, or otherwise disposing of certain bodies or remains in those funeral directors' possession. The appellant also sought an order restraining the Forensic Science Centre from disposing of the bodies of three deceased persons in its possession.
The funeral directors, of course, were not represented on the application for an interim injunction which was made orally and without the support of any affidavit. That is not to be critical of the applicant. It was clear, as the facts and circumstances developed in this case, that time did not permit the applicant, or, later, any other parties, from providing me with evidence in the usual form in affidavits.
I therefore permitted counsel, from the bar table, to advise me of various facts and circumstances which would usually be reduced to evidence in an affidavit. I have therefore been even more dependent than usual upon the assertions made by counsel from the bar table. However, I am satisfied that I can rely upon all that was told to me by those who appeared before me.
The matter proceeded for some time yesterday, and, at the conclusion of that hearing, I asked Mr Johns whether he would obtain instructions from the Attorney-General, and advise me whether the Attorney wished to intervene pursuant to s9 of the Crown Proceedings Act. I adjourned the application late yesterday afternoon to first thing this morning to allow Mr Johns to respond to that invitation.
Mr Johns appeared before me this morning, and advised me that he had been instructed by the Attorney to seek leave to intervene, and there being no objection by the applicant, I allowed the Attorney-General's intervention.
Also present, in court this morning, was the Director of Public Prosecutions. He does not have a corresponding right, like the Attorney-General, to intervene under the Crown Proceedings Act, but the applicant did not object to him intervening for the purpose of supporting submissions made by the Attorney-General. I gave leave to the Director to intervene.
The applicant is charged with the murder of ten persons. On 21 May 1999, he was charged with the murder of one person whose identity was unknown. Subsequently, on 2 July, he was charged with the murder of persons whose identity was made known to him in the charge. Another party intervened in these proceedings; Mr Mark Griffin sought leave to intervene on behalf of Mr John Bunting, who is also charged with the murder of the same ten persons. I also gave Mr Griffin leave to intervene.
The applicant is not presently aware of the Crown case. Whilst some declarations have been provided to his legal representatives, they are only a small number of the declarations upon which the Crown intends to rely for the purpose of his prosecution. In particular, I am told, he is not aware how it is alleged by the Crown that the victims were murdered. Moreover, he is not aware of the Crown's allegations in respect of the time of death.
On 16 July 1999, Mr Haydon's solicitors wrote to the Director of Public Prosecutions, advising the Director that they were not presently aware of the nature of the prosecution case against their client. They wrote:
“Until we obtain greater understanding of the prosecution case, we wish to preserve our client's right to carry out independent examinations of all relevant real evidence, including independent post mortems of the ten bodies the subject of the charges against our client. This right can only property (sic) be preserved if those bodies are not cremated or buried yet.
Consistent with the prosecution's obligation to ensure that all relevant real evidence is preserved to enable an accused person the opportunity to carry out independent testing, we seek your undertaking that you will take all steps necessary to prevent the destruction, cremation, or even interment of the bodies.”
On 20 July 1999 the Director replied in the following terms, at least in respect of that request:
“Regarding your request that the victims' bodies are not cremated or buried, I advise that after the autopsy on each victim is completed, the Director and police will have no objection to the victims' families disposing of their remains by burial or cremation, and this view has been expressed to the Coroner. It is a basic principle of forensic pathology that in a case such as this, a forensic pathologist who has access to all the autopsy notes, specimens, photographs and toxicology results is in the same position as a forensic pathologist who conducted the autopsy.”
The bodies of the deceased persons, the subject of the murder charges, were, at that stage, in the possession of the coroner. On 23 July 1999 Mr Haydon's solicitors wrote to the coroner, having spoken to an employee of the coroner on 22 July 1999. They wrote:
“We have been informed by Ms Renee Fernandez that on Thursday 22 July 1999, you authorised release of those bodies to the next of kin, (we presume, under s.30 of the Coroners Act).
In order for us to be able to advise our client fully on various issues relating to the preservation of evidence, we shall be grateful if you will provide the following:
1...... Copies of the Authorities or written confirmation that you authorised release of the bodies;
2. A list detailing of which bodies you had authorised release.
Our client's behalf (sic) we hereby object to the release of these bodies. We have serious concerns that our client's case will potentially be seriously prejudiced if the bodies are allowed to be disposed of at this time.”
It was the fact, as the letter referred, that on 22 July 1999 the coroner had authorised the disposal of the human remains of each of the ten deceased persons.
On 23 July 1999 the coroner responded to Mr Haydon's solicitor’s letter in the following terms:
“I confirm that on 22 July 1999 Mrs C Dennis, Coroner, authorised the release of the following bodies pursuant to s.30 of the Coroners Act:
Suzanne Phyllis Allen, Frederick Robert Brooks, Michael James Gardiner, Elizabeth Audrey Haydon, David Terrance Johnson, Barry Wayne Lane, Gary O'Dwyer, Gavin Allen Porter, Clinton Douglas Tresize, Troy William Youde.”
As can be seen from the letter, the coroner had authorised the disposal of each of the victims of the charges against both Mr Haydon and Mr Bunting.
In that same letter the coroner said:
“I confirm that this authorisation was issued at the earliest opportunity in order to minimise distress to relatives of the deceased, and to enable them to proceed with funeral arrangements.”
The applicant's solicitors responded to that letter protesting the authorisation that had been made and seeking from the coroner, an order reversing that authorisation.
On 26 July 1999 the coroner responded advising that he did not intend to take any further action in this matter for the reasons he had already expressed.
When this matter came before me yesterday, I was advised that three of the bodies of the deceased persons were still in the possession of the Forensic Science Department. One body had been cremated, that being the body of the wife of the accused, Mr Haydon, and six bodies were in the possession of a number of funeral directors.
It was because of those circumstances, that is, the dispersal of the bodies to the funeral directors that Mrs Shaw QC - who appeared for the applicant made the oral application for the orders, directed to the funeral directors, to which I have referred.
The remains of Mr Brooks are with Blackwells. The remains of Mr Porter, Mr Gardiner and Mr Lane are with Blackwells. The remains of Suzan Allen are with North-west Funerals in Mildura Victoria, and the remains of David Johnson are with Alfred James.
The remains of Mr Youde, Mr O'Dwyer, and those presumed to be of Mr Davies, are in the possession of the Forensic Science Department.
Mrs Shaw therefore also sought an interim injunction restraining the Department from disposing of the bodies of those deceased persons.
It is clear enough from the matters as they transpired yesterday that the applicant was not aware of the whereabouts of the remains of the six deceased persons to whom I have referred until during the hearing.
The applicant and the intervener, Mr Bunting, seek an order in the nature of certiorari, quashing the authorisation of the Coroner to enable a further post-mortem to be carried out on the remains of the nine deceased persons.
A post-mortem examination has already been carried out on the body of each of the deceased by three different pathologists. The post-mortem reports were provided to the Director of Public Prosecutions last night, who in turn provided them to the applicant's legal advisors this morning. Clearly enough, the applicant's legal advisors have not had any time in which to consider those reports, nor have they had sufficient time to present them to an independent pathologist for his or her assessment.
The applicant and the intervener seek access to the bodies and their remains so that an independent pathologist can carry out a post-mortem, and in particular to make observations of the bodies and the remains for the purpose of expressing opinions as to the cause of death, the nature of the injuries to the bodies (if any) and the time of death.
It was not appropriate for me to ask the applicant or intervener’s counsel what their clients' defence was to the charges. Clearly enough, such a question would be embarrassing and would be inappropriate, at least, before the applicants had had an opportunity to consider the declarations presented by the Director. It is enough, I think, for me to be satisfied, which I am, that the applicants believe it is essential for the purpose of a consideration of their defence that an independent examination take place. I am assured by senior counsel that such an examination is necessary. She has given that assurance after speaking to an independent pathologist, but, more importantly, one of the pathologists who carried out five of the post-mortems on behalf of the coroner.
This is an extraordinarily difficult application, made more difficult, of course, by the need to resolve it urgently. The matter cannot be reserved for consideration because, if the applicant and the intervener are entitled to the relief sought, the remedy will be lost unless I make a decision immediately.
On the one hand, the applicant and the intervener face the most serious charges. They are both entitled to expect that all their rights will be respected and, in particular, their right to access to evidence and their right to a fair trial. On the other hand, there are the rights of the relatives of the deceased persons and the sensitivities, of course, which attach to those rights. The relatives of these victims have suffered the loss of their loved ones and the glare of publicity associated with their deaths. It is understandable, as the coroner referred, that the relatives would want to put to rest the victims with as much dignity and as soon as possible. Any interference by this court with their ability to finalise the burial of the victims could only exacerbate the grief which they must have suffered.
The application for judicial relief at this stage, ordinarily, would only give rise to orders for service of the proposed defendant, the coroner, and consequential orders under rule 98.05. However, in this case the application for judicial review is complicated by the concurrent application for orders in the nature of injunctions directed to the funeral directors. It could not be expected that I would make an order in the nature of an injunction directed to the funeral directors restraining them from dealing with the remains or bodies of the deceased persons unless I was first satisfied that the applicant was likely to ultimately succeed in the claim for judicial relief in relation to the authorisation made by the coroner on 22 July 1999. It would be inappropriate to restrain the funeral directors and thereby their relatives from concluding the deceaseds' funeral arrangements unless I was so satisfied. On the other hand, if I was satisfied that the applicant and the intervener were likely to succeed in relation to the judicial review, then it would follow that I should make the order in the nature of an injunction so as to protect their rights in relation to judicial review.
The end result is that, whilst ordinarily I would only make orders for directions on the judicial review, I think I have to decide the argument which was put before me so as to decide the wider applications for injunctions. In order to decide the application for judicial review, I can invoke the power under rule 98.05(3) and treat the Attorney's opposition, which was supported by the Director of Public Prosecutions, as an application to strike out the summons on the basis that in due course there is no reasonable prospect that the court would make an order in the nature of judicial review. I propose to proceed upon that basis. That is an appropriate procedure, in my opinion, because all parties had the opportunity to argue fully the correctness or otherwise of the authorisation made by the coroner on 22 July 1999.
The coroner's functions in this State, and indeed in all States in Australia, are prescribed by statute. The modern functions of a coroner in this State are primarily to determine the cause of a death of a person where the cause of death has been caused by violent, unusual or unknown causes and to offer opinions on how the event which caused the death might be prevented or the likelihood of a recurrence reduced. The Coroners Act precludes the coroner, when holding an inquest into the death of any person, from making any finding or suggestion of criminal or civil liability (Coroners Act s26(1). Indeed, the coroner is prevented by the Act from proceeding with any inquest, where a person has been charged in criminal proceedings with causing the event that is or is to be the subject of an inquest unless authorised by the Attorney-General (Coroners Act s26(3)).
The coroner's functions under the Coroners Act, whatever they may have been at common law or historically, are not to assist in the administration of justice in respect of assisting in the prosecution of people under the criminal law.
In aid of the coroner’s functions the coroner is given power to gather evidence, including the power to obtain possession of the body of a deceased person. The coroner's powers are wide enough to allow the coroner, with the consent of the Attorney-General, to exhume a dead person. The coroner’s wide powers to obtain possession of the bodies of deceased persons are so that the coroner can exercise the powers given to him or her under s.13(1)(e) and (f) of the Coroners Act. Those sections provide, 13(1):
“Subject to this section, a coroner may, where the coroner believes, on reasonable grounds that it is necessary for the purpose of an inquest or the determination of whether or not an inquest is necessary or desirable -
(e)... direct a medical practitioner to perform a post-mortem examination of the body of a dead person;
(f) direct a medical practitioner, or some other person whom the coroner considers sufficiently qualified, to perform an examination or a test.”
It is not only the coroner, however, who is entitled to authorise a post-mortem on the body of a deceased person. Section 25 of the Transplantation and Anatomy Act 1983 empowers a designated officer of a hospital, for the purpose of investigating the cause of death of a person who has died in hospital, to authorise the post-mortem examination of the body of that person. Section 26 of the same Act empowers the senior available next of kin of a deceased person, where a deceased person has not died in hospital, to authorise a post-mortem examination of the body of that deceased person. Those persons' rights, that is, the designated officer and the senior available next of kin, to authorise a post-mortem are subject to the coroner's power to authorise a post-mortem under the Coroners Act (see s.27 of the Transplantation and Anatomy Act 1983).
The powers given to the coroner and those two persons to whom I have referred are given for the purpose of determining the ultimate question, and that is the cause of death of a person. The powers are not exercised under the Coroners Act for the purpose of assisting in the identity of the perpetrator of a crime but for the purposes mentioned.
Section 13 of the Coroners Act empowers the coroner to obtain the body or the remains of a deceased person and the coroner has the power to keep possession of those bodies or remains for as long as necessary to fulfil the coroners functions. But, of course, consistent with any statutory duty, the coroner is not entitled to hold the body of a deceased person for any longer than is necessary for the coroner to carry out the coroner's own functions and obligations. When the coroner's functions and obligations are at an end, the coroner must surrender the body of the deceased person or the remains to those persons who are entitled, and in most cases that would either be the personal representatives or the relatives of the deceased person. Any coroner who held the body of a deceased person or their remains longer than was necessary for the coroner to carry out the coroner's own functions would, in my opinion, be acting in excess of the coroner's power and would be subject to review by this court.
Section 30 of the Coroners Act provides:
“The coroner may issue an authorisation for the disposal of human remains where the coroner considers the body of a deceased person is not further required for the purposes of an inquest into the death of that person.”
The exercise of that power is important because of the provisions of s31B of the Coroners Act. That provides:
“A person must not dispose of human remains or cause human remains to be disposed of unless he or she has received -
(a)     ...
(b)    in any other case -
(i)     ...
(ii)... an authorisation for the disposal of human remains from the coroner.”
The relatives of a person cannot dispose of the remains of a deceased person until such time as the coroner has authorised the disposal of those human remains under s30.
Mrs Shaw argued that the coroner cannot issue an authorisation in respect of the body of a deceased person where that person's death is a result of a homicide and where someone has been charged in relation to that homicide, without the coroner first notifying the accused or the accused's relatives or representatives that the coroner intends to issue an authorisation under s30. This is because, she said, an accused person in those circumstances has an entitlement to commission an independent pathological examination of the body of the deceased person or the remains.
I think it is first instructive to determine whether the underlying rationale is right so as to determine whether the obligation she contends for is imposed on the coroner.

In my opinion, no accused person has any right to commission a post-mortem on the body of a deceased person. The only persons entitled by law to commission a post-mortem are the persons referred to in s25 and s26 of the Transplantation and Anatomy Act 1983 and the coroner under s13 of the Coroners Act. I suppose it would be possible that if the accused was a senior available next of kin of the deceased person the accused could authorise a post-mortem examination, but that is only because the statute would authorise it.
The most, in my opinion, that an accused person has by way of entitlement is to request permission from the designated officer under s25 of the Transplantation and Anatomy Act or the senior next of kin under s26 of the same Act, or the coroner to carry out a post-mortem on the body of a deceased person. It seems to me, therefore, at law, that an accused person's only right is to request that someone else exercise their rights in relation to a post-mortem.
Because there is no right on the part of an accused person to oblige anyone to carry out a post-mortem, I doubt, then, whether the coroner has an obligation to notify an accused person that the coroner intends to issue the authorisation under s30.
In any event, even if the coroner issues an authorisation under s30, therefore allowing for the disposal of the human remains, the accused person loses no rights, because the accused person still has the right to request the coroner to carry out a post-mortem under s13 and the right to seek to have a designated officer or a senior relative request a post-mortem under the provisions in the Transplantation and Anatomy Act. Therefore, the making of the authorisation by the coroner under s30 does not in any way disadvantage an accused person and does not disentitle that accused person from any of the rights that the accused person had prior to the exercise of the power under s30.
Mrs Shaw, however, took me to two textbooks which she said supported her proposition. She referred to Burton, Chambers and Gill, 'Coroners' Inquiries a guide to law and practice', and a passage at p96. In that passage the authors said:
“Although the coroner has the power to permit the disposal of a body before the conclusion of the inquest, there may be cases where the body is required for further examination by the coroner or where criminal charges are involved by the prosecution and the defence. There is usually understandable pressure by the family of the deceased to have a funeral. The coroner may ensure that all specimens that may be needed as evidence are taken, but the difficulty remains that a person who has been, or might be, charged with causing the death may require a further examination of the body on behalf of the defence.
That the coroner has a duty to ensure that such an examination is possible was confirmed in the case of R v Bristol Coroner, Ex parte Kerr [1974] 2 A11 ER 719. The Coroner must do everything possible to expedite such an examination, but there may be a delay in apprehending the accused person. Relatives of the deceased are naturally incensed that a person might murder the deceased and then prevent them from expressing their natural emotions at a funeral. The coroner must do everything possible to explain that a person is presumed to be innocent until convicted.”
She also referred to the 10th edition of Jervis on the Office and Duties of Coroners. The text in that book at p.81 is to the same effect as that contained in 'Coroners' Inquiries a guide to law and practice'.
The case referred to by the authors of both texts is a decision of the divisional Court of Appeal in R v Bristol Coroner; Ex parte Kerr [1947] QB 652. In that case a 20 year old Rhodesian who had come to England to play cricket had been stabbed, and died. A person was charged with his murder and remanded in custody. On the same day the coroner commenced an inquest on the body and heard evidence from the pathologist as to the cause of death. The inquest was then adjourned sine die. In the meantime, the deceased's parents wished to take the deceased's body back to Rhodesia for burial and applied to the coroner for its release. The coroner refused, on the basis that it would be inappropriate to release the body until he was satisfied that the further examination of the body would not be required in connection with the murder case. At that time the prosecution had indicated that it did not object to the release of the body so long as the defence consented. The solicitors for the accused indicated that they were not in a position to consent because they could not immediately say whether the body was required or otherwise.
The deceased's father applied for an order of certiorari to quash the coroner's refusal to release the body. Lord Widgery CJ accepted the arguments propounded by counsel for the coroner and held that the coroner had the power to retain possession and custody of a body until the inquest was determined. He concluded that the coroner had the right to retain the control of the body in that case pending the disposal of the inquest.
The correctness of that decision, with respect, cannot be doubted. Clearly the coroner has the right to take possession of the body of a deceased person for the purpose of conducting an inquest into that deceased person's death. Moreover, a coroner has the right to retain possession of that body until such time as the inquest is completed. Probably, the coroner has the right to allow an accused person to commission a pathological examination of the body of that deceased person whilst the coroner has possession of the body.
Applying the facts to the law in this State, it seems to me that if a coroner has obtained possession of a body, under s13 of the Coroners Act, the coroner could, even though a post-mortem has been carried out by a pathologist, at the request of an accused person, order a further post-mortem examination of the body of that deceased person.
I am satisfied that in this State if an accused person requests a coroner to direct a medical practitioner to perform a post-mortem examination on the body of a deceased person, a coroner has the power to give such a direction, notwithstanding there has already been a post-mortem examination carried out by some other pathologist.
The case, however, does not, in my opinion, support any wider proposition than that to which I have referred.
Mrs Shaw said that the decision in R v Bristol Coroner; Ex parte Kerr had been approved in Australia by Young J, sitting in the Equity Division in the Supreme Court of NSW in Smith v Tamworth City Council (1997) 41 NSWLR 680. Young J said at p.693:
"In the instant case, the coroner had possession of the body soon after death the purposes of conducting an inquest. At common law, the coroner had a right to retain possession of the body until the conclusion of the inquest or until the coroner decided that the body was no longer needed for the purposes of the inquest: R v Bristol Coroner; Ex parte Kerr.”
It is clear enough, as Mrs Shaw says, that Young J has approved that decision but only for that limited purpose. The dicta of Young J for which he cited R v Bristol Coroner; Ex parte Kerr is no more than is contained in the Coroners Act in this State. It is clear that by reason of the various provisions in the Coroners Act, a coroner does have a right to obtain possession of a body for the purposes identified in s13 and to retain possession until the conclusion of the inquest or until he or she decides that the body is no longer required for the purposes of the inquest. That is no more than a restatement of s13 and s30 of the Act.
I do not accept therefore, the submission that there is an obligation on the coroner in every case in which it is suspected that a deceased person has died as a result of a homicide and in which a person has been charged, to notify the accused or his or her relatives or representatives, of an impending exercise of the power under s30.
If the argument was right, I think then there has probably been an almost universal breach of that obligation since the enactment of the Coroners Act in 1975.
The Director said that in his experience there is no such practice in South Australia. Mrs Shaw said that she had an experience whereby a medical practitioner was present during a pathological examination with the consent of the coroner. I am sure both counsel are right. However that does not, in my opinion, establish any practice of the kind that Mrs Shaw relied upon.
It is important, as I have said, that the coroner observes his or her obligations under s30 because the relatives of deceased persons cannot deal with the remains of those persons until such an order is made.
If Parliament had intended the coroner to be obliged to give the notice which is said to be necessary, in my opinion Parliament would have said so and would have spelt out the obligation in the Coroners Act.
I do not doubt that the coroner could have advised the accused or the intervener in this case, that he or she intended to exercise the power under s30, I also do not doubt that if the coroner had been advised prior to the exercise of the power under s30, the coroner could have agreed to allow a further post-mortem under s13(i)(e). But that is quite different to the coroner being obliged to exercise what is said to be an obligation prior to the issue of the authorisation under s30.
In those circumstances, and for the reasons I have given, I do not think that the coroner fell into error in issuing the authorisation on 22 July 1999 before advising the accused or representatives of the accused of the coroner’s intention. In my opinion, the coroner was not under any obligation to advise the accused or the intervener, or the representatives, or relatives of the accused or intervener before exercising the power which was exercised on 22 July.
In those circumstances, I believe that there is no reasonable prospect that the court would make an order in the nature of judicial review as sought and in those circumstances it is appropriate for me to strike out the summons. If I make that order, then, of course, it would be inappropriate to grant the oral application directed to the funeral directors because any order of the kind sought could never give the applicant or the intervener the relief which they ultimately seek against the coroner.
In those circumstances I dismiss the application for judicial review and I dismiss the application for injunctions. It would be appropriate, in my opinion, to make no order as to costs.

[1999] SASC 315

29 July 1999