Haydon v Chivell No. Scgrg-99-902 Judgment No. S336

HAYDON v CHIVELL
[1999] SASC 336

Full Court: Doyle CJ, Debelle and Bleby JJ

DOYLE CJ, DEBELLE AND BLEBY JJ. This is an appeal from a decision dismissing an application for judicial review and applications for interim injunctions. The proceedings result from the desire of a person charged with murder to have another post mortem examination performed of bodies of persons he is alleged to have murdered.
On 21 May the appellant was charged with the murder of a person whose identity was unknown. On 2 July 1999 the appellant was charged with the murder of ten named persons. The bodies of those ten persons were discovered on or shortly after 20 May 1999. After they had been discovered, the bodies came under the direction and control of the State Coroner (“the Coroner”). Post mortem examinations were conducted by pathologists at the direction of the Coroner. That direction would have been given pursuant to s 13(1)(e) and Rule 5(2) of the Rules under the Coroners Act. The relevant provisions of s 13 state:
“(1).. Subject to this section, a coroner may, where the coroner believes on reasonable grounds that it is necessary for the purposes of an inquest or the determination of whether or not an inquest is necessary or desirable -
(a)enter at any time and by force, if necessary, into or upon any place or thing, where the coroner believes there is the body of a dead person, and view the body, or issue his or her warrant authorising some other person to exercise such powers; or
(b).... issue his or her warrant for the removal of the body of a dead person to such place as the coroner directs; or
(c)enter at any time and by force, if necessary, into or upon any place or thing, and inspect and remove anything in or upon that place or thing, or issue his or her warrant authorising some other person to exercise such powers; or
(e).... direct a medical practitioner to perform a post-mortem examination of the body of a dead person; or
(2)A coroner exercising a power conferred by subsection (1), or a person executing a warrant issued pursuant to that subsection, may be accompanied by such assistants as the coroner, or that person, thinks fit.
(3)    A person must not -
(a).... hinder or obstruct a coroner exercising a power conferred by subsection (1) or a person executing a warrant issued pursuant to that subsection, or any assistant accompanying a coroner or person pursuant to subsection (2); or
(b)     fail to comply with a direction given pursuant to this section.
(4)... Notwithstanding the provision of subsection (1), a coroner may not exercise the powers conferred by that subsection in relation to -
(a)     the disappearance from, or within, the State of any person; or
(b)     a fire or accident that causes injury to person or property,
unless the Attorney-General directs the coroner to do so.”

Three pathologists conducted the examinations. The post mortems were completed within about seven days after the bodies had been discovered. However, the Coroner retained control over the bodies of all ten of the deceased persons until 22 July 1999.

On 16 July the appellant’s solicitors wrote to the Director of Public Prosecutions advising that they were not aware of the nature of the prosecution case against their client and expressed the desire, which they asserted to be a right, to carry out an independent post mortem examination of the bodies of the ten deceased persons. They asked that the Director undertake to take all steps necessary to prevent the destruction, cremation or interment of the bodies. On 22 July 1999 the appellant’s solicitors received a letter from the Director dated 20 July. The Director did not give the undertakings sought. The relevant part of the reply was in these terms:
“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 the forensic pathologist who conducted the autopsy.”

On 20 July the bodies were still in the control of the Coroner. The appellant’s solicitors did not then express to the Director of Public Prosecutions an intention to have a second post mortem examination performed. No such request was made until these proceedings had been instituted.

On 22 July 1999 the Coroner issued an authorisation for the disposal of the bodies of nine of the ten deceased persons. That authorisation was made pursuant to s 30 of the Coroners Act which provides:
“The coroner may issue an authorisation for the disposal of human remains where the coroner considers the body of a dead person is not further required for the purposes of an inquest into the death of that person.”

The remaining body remains under the control of the Coroner at the State Forensic Science Centre. Later on 22 July the appellant’s solicitors ascertained that the post mortem examinations had been completed and learned that the Coroner intended to authorise the release of the bodies. On the same day they sent a letter to the Coroner objecting to the release of the bodies, asserting that their client’s case would be prejudiced if the bodies were disposed of at that time. The letter sought copies of the authorisation for the release of each body and a list of the bodies released.

On 23 July 1997 the Coroner replied by letter listing the names of the persons whose bodies he had released. In his letter, he said he was releasing the bodies in order to enable the relatives of the deceased to make funeral arrangements and minimise their distress. He 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. Prior to the authorisation being given, inquiries were made with the investigators to ensure that the bodies were no longer required for the purposes of the post mortem examinations I had previously directed pursuant to Section 13(1)(e) of the Coroners Act.
In these circumstances I consider that it would not be appropriate for me to delay release of the bodies further. The requirement of Section 30, namely that ‘the body ... is not further required for the purposes of an inquest into the death of that person’, has been fulfilled. I certainly do not propose to recall the authorisations on the basis of a vague intimation that your client may wish to exercise a right he may have pursuant to the criminal law at some time in the future.”

The Coroner said that he would not recall the authorisations.

On the same day, the appellant’s solicitors replied protesting that the Coroner had authorised release of the bodies and repeating their request that he revoke them. They explained that their intimation that their client may wish to have a post mortem examination conducted was vague because they did not then know the case against their client. It seems that at that time the ten bodies were still at the State Forensic Science Centre.
On 26 July the Coroner wrote informing the appellant’s solicitors that he did not intend to take any further action for the reasons he had already expressed.
On 26 July the appellant’s solicitors sent a letter to a forensic pathologist in Melbourne. They informed him that they were considering issuing proceedings to require the Coroner to retain possession of the bodies until they could ascertain the nature of the prosecution case against their client. They enclosed copies of their correspondence with the Director of Public Prosecutions and the Coroner and asked for the pathologist’s opinion on the contention of the Director of Public Prosecutions quoted above. They also asked if the pathologist thought it necessary to view the bodies or whether he would be satisfied with the forensic reports. On 28 July the pathologist replied by facsimile transmission to the appellant’s solicitors advising that he disagreed with the views of the Director of Public Prosecutions, adding that a pathologist who has conducted the first post mortem examination has an advantage over a pathologist who conducts a second post mortem examination. The relevant point of the letter reads:
“There ARE deaths where the primary Pathologist does indeed have an advantage for example, in understanding the mechanism of causation of an injury, over any subsequent Pathologist, despite even the most meticulous documentation of the autopsy findings and to be placed in such a second-rate position may ultimately render it impossible to provide a definitive interpretation.”

It will be noticed that he did not state whether he believed it was necessary to view the bodies or conduct a second post mortem examination.

The ten persons whom the appellant is alleged to have murdered include his wife. On 27 July 1999 the appellant’s solicitors had received a letter of the same date from the Registrar of Births, Deaths and Marriages advising that the body of the appellant’s wife had been cremated on 24 July 1999.
On 28 July, Dr James, a pathologist at the State Forensic Science Centre, informed the appellant’s solicitors that five bodies had been released out of the Centre’s custody but that the Centre retained custody of four others. Dr James said that the Coroner did not wish the names of the funeral directors to whom bodies had already been released to be released to the public because he did not want lawyers pursuing funeral directors. Dr James was asked if he could identify any part of the reports of the post mortems as being contentious. The affidavit evidence of Dr James’ reply does not use direct speech. The affidavit reads:
“Dr James replied to me that it was hard to say what might or might not be contentious in the post mortems but that there may be some areas which might be contentious.”

If that sentence correctly conveys the purport of his reply, Dr James was being appropriately cautious and was recognising that it was difficult to say what might or might not be disputed.

At noon on 28 July 1999 the appellant’s solicitors sent a letter by facsimile transmission to the Coroner informing him of their intention to issue proceedings to restrain him from releasing the four remaining bodies. The letter asked for a reply by 12.30pm. The Coroner replied at 12.50pm that he did not propose to act as requested. The Coroner reiterated that he thought that the information supplied on behalf of the appellant did not justify him interfering with the privacy of the families of the deceased. He said:
“What I am prepared to repeat, however, is that the information you have supplied in your correspondence does not, in my opinion, justify the gross interference with the privacy of the families of the deceased which your successive requests would cause. My function is simply to certify that the bodies are no longer required for coronial purposes, and any rights your client claims to have are not justiciable in my jurisdiction.”

On 28 July the appellant issued proceedings seeking orders in the nature of judicial review.

The appellant’s application sought the following orders:
An order in the nature of certiorari quashing the Coroner’s decision made on 22 July 1999 to authorise disposal of the bodies of the nine deceased. (Obviously it was futile to seek such an order in relation to the appellant’s wife who had already been cremated.)
An order in the nature of prohibition preventing the Coroner from releasing the bodies. (At that stage only four bodies remained in the custody of the Forensic Science Centre including one in respect of which the Coroner had not granted an authorisation.)
An order in the nature of certiorari quashing the Coroner’s decisions of 23 and 26 July not to recall his decision to authorise disposal of the bodies.
A number of orders in the nature of declarations to the following effect:
(a).... That the Coroner had unlawfully failed to consult the interests of or to hear the appellant or any other accused on the question whether the bodies should be released.
(b)That the Coroner had failed to exercise the discretion in s 30 of the Coroners Act.
(c).... That, when making his decision under s 30, the Coroner had failed to take relevant considerations into account, namely, the interests of justice and the interests of an accused person in having the opportunity to carry out a forensic examination.
(d)That it was unreasonable for the Coroner to authorise release of the bodies without enquiring as to the interests of the appellant and other accused persons and where the appellant had requested an opportunity to ascertain the nature of the Crown case against him and to obtain advice whether forensic pathology tests should be performed.
An injunction to restrain the Coroner from releasing the four bodies said to remain in his custody.

It will be noticed that the application sought orders of prohibition in respect of all of the bodies notwithstanding that by that time only four bodies remained in the custody of the Forensic Science Centre and notwithstanding that only one of them remained under the control of the Coroner.

When these proceedings were instituted, his solicitors asserted that the appellant was not aware how it is alleged that the victims were murdered or of the allegations as to the time of death. The appellant did not obtain a copy of the pathologists’ reports until 29 July, after these proceedings had been instituted.
On 28 July, the matter was listed before Lander J as a matter of urgency. Mrs Shaw QC appeared for the appellant. Mr Johns appeared on behalf of the Coroner to inform the court that the Coroner would abide the order of the court and for the purpose of assisting the court. He provided additional factual information to the court. After proceeding for some time, the application was adjourned to 29 July. On that day, leave was granted to the Attorney General to intervene and Mr Johns appeared for him. The Director of Public Prosecutions was also present. Leave was granted for him to intervene. He supported submissions made by the Attorney General. Leave to intervene was also granted to Mr J Bunting, another person accused of the murder of these ten persons. Mr Bunting supported all of the applications made by the appellant.
When the application was called on, Mrs Shaw QC made oral application for interim injunctions to restrain the disposal of the remains of the bodies which the Coroner had released. The appellant did not then know the names of the persons to whom the bodies had been released or the names of the next of kin or personal representatives of any of the deceased persons or indeed the whereabouts of the bodies which had been released. In the course of the proceedings, the court was informed that a further body had been released to a funeral director so that the Forensic Science Centre then had custody of the remaining three bodies including the one not the subject of an authorisation for release. Mrs Shaw applied to amend the application to include an order seeking an injunction to restrain the Forensic Science Centre from disposing of the remaining three bodies. The court was also told of the names of the funeral directors who had possession of the six bodies. The court was not told of the names of the next of kin or personal representatives. Mrs Shaw also applied to add an application for an interim injunction directed to these funeral directors seeking orders preventing them from cremating, interring or otherwise disposing of the bodies in their possession.
The pathologists’ reports of the post mortem examinations directed by the Coroner were provided to the Director of Public Prosecutions on 28 July. He made copies available to the appellant’s solicitors on 29 July. Although the appellant’s legal advisers had not had sufficient time in which to consider the reports, the applicant and the intervener both sought access to the bodies so that an independent pathologist could carry out post mortem examinations and in particular make observations of the bodies and the remains for the purpose of expressing opinions as to the cause of death, the nature of injuries to the bodies, if any, and the time of death. Lander J was satisfied that the appellant believed it was essential for the purposes of his defence that a second examination take place.
On 29 July Lander J gave ex tempore reasons and dismissed the application for judicial review. He also dismissed the applications for injunctions. From that decision the appellant appeals to this court. The appellant appeals against both the order dismissing the application for judicial review and the order dismissing the applications for injunction.
The appeal was instituted on 3 August 1999. A Full Court was urgently convened and the appeal came on for hearing on 4 August. The same parties and interveners were represented. By then the decision of Lander J had been reported in the media.
Although the solicitors for the appellant had been informed of the names of the funeral directors who held the bodies of the seven deceased persons who had been released, they did not give them notice of these proceedings or of the appellant’s intention to appeal. They ought to have done so particularly as they did not know the names of the next of kin or of the personal representatives of the deceased. Had they given notice to the funeral directors and informed them of the right of the next of kin or personal representatives to be heard on the appeal or in any other respect in relation to the applications, the next of kin or personal representatives could have had an opportunity to arrange for representation and be heard by the Full Court.
Although the appellant was appealing against the refusal of Lander J to order interim injunctions restraining the funeral directors from making arrangements for the burial or cremation of the bodies and to restrain the Forensic Science Centre from disposing of the three remaining bodies, the solicitors for the appellant had not ascertained whether any person had been buried since 29 July or whether the Forensic Science Centre has released any further bodies. Plainly, it would have been possible without any unseemly haste for any of the deceased to have been buried between 29 July and 3 August. Indeed, arrangements might have been in place for a burial or cremation to occur over that period.
It was essential that the court be informed of the current position so that it would not make an order which could not be enforced. It was also important that the court not make a wholly insensitive order. For example, the court did not know whether arrangements had already been made to bury or cremate any of the bodies on the day of the hearing of the appeal. Making all due allowance for the importance of the outcome to the appellant, even assuming that the arguments in support of the appeal might succeed, it would have caused considerable distress to the families of the deceased for the court to restrain a funeral which was about to occur. The court, therefore, adjourned the hearing in order to give the next of kin or personal representatives an opportunity of being heard and an order that the appellant’s solicitor might ascertain the present position concerning each body.
The hearing of the appeal resumed at 4.45pm on 5 August. The next of kin or personal representatives of the deceased persons were represented by Mr Stratford of counsel. A number of further affidavits had been filed and were admitted by consent. There was evidence that only two bodies then remained at the mortuary at the State Forensic Science Centre; that the Coroner had not yet authorised disposal of one of those bodies; that of the remaining bodies, four remained in the possession of funeral directors; that four bodies had been cremated; and that one body had been buried. The court was also informed that one of the deceased persons was to be cremated that night and that another was to be buried next morning. Another of the deceased was to be cremated on 10 August and the funeral arrangements of the ninth deceased person had been postponed pending legal advice.

Mrs Shaw QC renewed the applications for interim injunctions pointing to the fact that some of the funeral arrangements were being re-arranged so that they would be completed before any order could be made. The court refused the application for the reasons which are appended. At about 7.00pm the court adjourned the hearing of the appeal to the following day. After hearing argument, the court reserved judgment. On 10 August, the court dismissed the appeal for reasons to be published. These are the reasons for that decision.
As its long title states, the Coroners Act confers on coroners the power to enquire and hold inquests into certain events. Those events are listed in s 12 and s 14 of the Act. There is an interesting question whether the Act constitutes a code concerning the powers and duties of coroners. Section 5 provides:
“The practice and procedures to be followed by a coroner with respect to an inquest are to be as prescribed by this Act and the rules under this Act and any rules or practice or procedure with respect to an inquest arising at common law or by statute of the Imperial Parliament are hereby excluded.”

That provision had not appeared in the legislative predecessors of the 1995 Act, the Coroners Act 1935, the Coroners Act 1884, and the Ordinance No 7 of 1850 which regulated coroners. Section 5 is expressed to apply to the practice and procedure to be followed by a coroner with respect to inquests. It is not clear whether the Act intends to exclude any rules or practice at common law or by a statute of the Imperial Parliament concerning the powers and duties of coroners. The appellant did not point to any part of an Imperial statute which applied. Instead, he relied only on what was asserted to be a right at common law to seek a coroner’s consent to a second post mortem examination by a pathologist of his own choice, asserting that the consent should not be withheld improperly or unreasonably. As will be seen, it is unnecessary to consider the extent to which, if at all, the common law invests a coroner with powers and duties in addition to those prescribed by the Coroners Act since the only powers which were exercised in this instance were those in relation to a post mortem examination and the only powers concerning post mortem examinations are statutory.

Section 12 of the Act invests a coroner with jurisdiction to ascertain the cause or circumstances of a number of events listed in s 12(1) and s 12(2). These events include ascertaining the cause of death of any person: s 12(1)(a). (Section 14 of the Act requires the State Coroner to conduct or to cause to be conducted inquests in circumstances there stated.) Section 13(1) of the Act lists a number of powers which a coroner may exercise for the purpose of an inquest or to determine whether an inquest in necessary or desirable. The powers listed in s 13(1) include the power to order a post mortem examination as well as other powers which might be exercised in aid of the conduct of a post mortem examination.
A coroner’s power to direct that a post mortem examination be performed is not unfettered but is limited by s 13(1) to a power to direct the performance of a post mortem examination for two purposes only, namely, where a coroner believes on reasonable grounds that it is necessary for the purposes of an inquest or for determining whether an inquest is necessary or desirable. A coroner has no statutory power to direct the performance of a post mortem examination for any purpose other than those prescribed by s 13(1).
It is necessary to note also certain provisions of the Transplantation and Anatomy Act 1983. Section 38(1)(d) of that Act makes it an offence to conduct a post mortem examination of the body of a deceased person unless that examination is made pursuant to an authority under Pt IV of that Act. It is also an offence to use the body of a deceased person for an anatomical examination except in a manner authorised by the Act: s 38(1)(f) and s 38(1)(g). However, by virtue of s 38(3)(b) of the Transplantation and Anatomy Act, s 38(1) does not apply in relation to anything done in pursuance of an order made by a coroner under the Coroners Act. Thus, when the Transplantation and Anatomy Act is read with the Coroners Act, it is apparent that a coroner risks prosecution under s 38 of the Transplantation and Anatomy Act if he were to direct a post mortem examination for any purpose other than the two purposes prescribed by s 13(1) of the Coroners Act. He cannot grant his consent to another person to conduct a post mortem examination because he would then be acting as an accessory to the commission of an offence by that person. In other words, a coroner may only order a post mortem examination for the two purposes nominated by s 13(1). Thus, even if it is assumed that coroners in this State once had a common law power to permit an accused person to arrange a post mortem examination or some other kind of forensic examination of a deceased person by a pathologist, that power has been abrogated by the combined operation of the Transplantation and Anatomy Act and the Coroners Act. Thus, coroners in South Australia do not have common law powers to permit the conduct of post mortem examinations but only statutory powers in that respect. It follows that, even if the appellant had any right at common law to request or to require a post mortem to be performed by a pathologist of his choice, he now has no such right. For that reason alone, his appeal must be dismissed. The lack of such a right should not be perceived to be an infringement or impairment of the rights of an accused person especially when viewed against the independent and impartial role of coroners and of any expert pathologist that coroners may appoint.
Rule 5(2) of the Rules made under the Coroners Act provides:
“If a coroner is made aware of the fact that a person may be charged with murder or manslaughter arising out of the death of any other person, that person shall, if it is practicable so to do, direct a pathologist with forensic training to carry out the post mortem examination.”

The manifest purpose of the rule is to ensure that a suitably qualified person is appointed to conduct a post mortem examination, particularly as that person may be required to give evidence at a subsequent trial concerning the findings made at the examination. It is eminently desirable that the post mortem examination should be conducted by a suitably qualified and independent expert. Hence the direction in Rule 5(2) to direct, if at all possible, a pathologist with forensic training to conduct the examination. The pathologist is required by Rule 8 to prepare a written report of the examination and that report is supplied to the coroner or to persons authorised by the coroner. It is not supplied by the pathologist to any person other than a person authorised by the Coroner: Rule 8(2).

In this context, it is necessary to note also s 26(1) of the Coroners Act which prohibits a coroner from proceeding with an 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. The fact that a person has been charged does not necessarily mean that a coroner may not direct that a post mortem examination be performed. There may be a number of reasons why a coroner would deem it prudent to direct that a post mortem examination be performed. One obvious reason is that the charges against the person accused of causing the death may be dropped and the coroner may deem it appropriate to resume the inquest. The post mortem examination will provide valuable evidence for the inquest. In the particular circumstances of this case, the fact that the appellant had on 21 May been charged with murder did not mean that the Coroner could not direct post mortem examinations. On 21 May, the accused had not been charged with causing the death of named persons. That did not occur until 2 July 1999 by which time the post mortem examinations had been completed.
Common sense dictates and the evidence of the pathologists in this case shows that the sooner a post mortem examination is performed by an expert the more comprehensive and useful the report is likely to be for whatever purpose it is likely to be used. It is implicit in Rule 5(2) and the Coroner’s practice confirms that the report will be made available to the police or other prosecuting authorities. It will also be made available in due course to an accused person. It must be remembered the report is that of an independent expert pathologist whose only function is to ascertain the cause of death objectively and to the best of his or her professional ability and to report the findings to the coroner. The pathologist is not reporting to the prosecuting authorities or to an accused person. The report becomes available to them only because a coroner authorises it.
Thus, a coroner does not have unfettered rights to possession of a body. He has limited rights to control what happens to a body for the purposes of conducting or deciding to conduct an inquest. The purpose of that inquest is to establish the cause of death and no other. It is not part of the role of a coroner to assist prosecution authorities or any other person. While historically, a coroner had the power to commit a person for trial, in this State that function has not existed since 1981 when the Coroners Act Amendment Act repealed s 26(2), which had invested a coroner with power to commit a person for trial. When directing that a post mortem examination be conducted, a coroner is acting independently for the purposes nominated by s 13(1). The report of the forensic pathologist is provided to a coroner for that purpose. The report is to the coroner and not to any other person. Depending on its terms, it may or may not assist either the prosecuting authorities or the interests of an accused person.
In short, a coroner, under the South Australian legislation, is empowered to exercise a limited degree of control over a body and for limited purposes. Beyond that the coroner has no further powers. Even without taking into account s 38(1) of the Transplantation and Anatomy Act, a coroner has no power to release a body to someone else for examination or to authorise such examination. Of course, a coroner may see fit to direct a second post mortem examination if that is necessary for the purpose of an inquest or to determine whether or not a further inquest is necessary or desirable. But s 13(1) requires that reasonable grounds exist to justify the second post mortem.
Finally, it is necessary to note s 30 which invests a coroner with power to authorise the disposal of a body of a dead person which is no longer required for the purposes of an inquest. Section 30 closes the circle of powers vested in coroners in relation to the bodies of deceased persons.
To summarise, a coroner may direct a post mortem examination for two purposes, namely, where it is necessary for the purpose of an inquest or to determine whether an inquest is necessary or desirable. If a person is charged, the coroner cannot proceed with an inquest. There is, however, nothing to prevent the coroner from directing that a post mortem examination be conducted despite the fact that a person has been charged. Once the coroner determines that the body is no longer required for the purpose of an inquest, the coroner may authorise the disposal of the remains.
When making the decision under s 30, the only question for the coroner to determine is whether the body is required any further for an inquest. Section 30 does not require the coroner to consider whether the body is required for any other purpose. The coroner does not have to determine whether it might be required for inspection by any other parties; the coroner does not have to determine whether a further post mortem examination is necessary; the coroner does not have to determine whether the body should be preserved for the purposes of a committal hearing or a trial. The terms of s 30 are straightforward. They do not require the coroner to hear any other person nor to consult the interests of any other person. Indeed, for the reasons already expressed, there are no other interests to be consulted. There is nothing which can be gleaned from either s 30 or from any other provision of the Coroners Act which indicates that any person may require or even request a post mortem examination or that that person should be heard before a decision is made to authorise the release of the remains of the deceased person. The rules of procedural fairness will apply when administrative decisions affect rights, interests or legitimate expectations subject only to a clear expression of a contrary statutory intention: Kioa v West (1985) 159 CLR at 582 and Annetts v McCann (1990) 170 CLR 596 at 598. Coroners exercise powers which may attract the rules of procedural fairness. The conduct of an inquest is an obvious instance: see, for example, Maksimovich v Walsh (1985) 4 NSWLR 318 and Annetts v McCann. However, in this case, there is no right, interest or legitimate expectation of the accused which would attract the operation of the rules of procedural fairness.
In this case, the State Coroner has concluded that he does not require the bodies of nine of these deceased persons for the purposes of an inquest. The Coroner had no legal obligation to have regard to the interests of the appellant. He was satisfied that he did not require the bodies any further for the purposes of the inquest and that was the only question he had to consider before deciding to authorise their release. Furthermore, he had no power in any event to grant the appellant’s request. There is, therefore, no basis for this court to interfere with the decision to release the bodies. For like reasons the Coroner has no legal obligation to have regard to the interests of the appellant when determining whether he should release the body of the tenth of these deceased persons.
Mrs Shaw QC, who appeared for the appellant, relied on two decisions, R v Bristol Coroner; ex parte Kerr [1974] 2 All ER 719 and R v Coroner for Greater London; ex parte Ridley [1985] 1 WLR 1347 which, she submitted, demonstrated that the common law required a coroner to hear an accused person and to have regard to his interests when determining whether to authorise the release of the body of a deceased person. The decision in ex parte Kerr must be distinguished on the ground that the statutory scheme which operates in this State differs from that in England. While a coroner in this State, as in England, may retain a body for as long as is necessary for the purpose of an inquest, a coroner in this State may direct a post mortem examination only for the two purposes prescribed in s 13(1). A coroner cannot permit a post mortem examination or permit a post mortem examination on behalf of an accused person. The decision in ex parte Ridley must also be distinguished because of the different statutory regime in this State. That case concerned a widow who requested that a second post mortem examination be directed by a coroner. The coroner’s decision to refuse the request was reversed by the court. In this State, the widow would herself have been entitled to authorise the post mortem examination of the deceased: see s 26 of the Transplantation and Anatomy Act.
In addition, as the Coroner had authorised release of nine bodies and those bodies were no longer at the State Forensic Science Centre when the appeal was heard, we have serious doubts whether it would have been appropriate in the exercise of our discretion to make an order quashing the Coroner’s decision. Such an order may have been futile. But it is unnecessary to reach a concluded view on that question.
For these reasons, the appeal is dismissed.
As these reasons have been prepared in haste, we reserve the right to edit or supplement them if necessary.

Reasons for refusing to order interim injunctions

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 336

11 August 1999