Jones v The Coroner, Albany - [2005] WASC 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JONES -v- THE CORONER, ALBANY [2005] WASC 134

CORAM: MCKECHNIE J

HEARD: 13 JUNE 2005

DELIVERED : 13 JUNE 2005

FILE NO/S: CIV 1670 of 2005

BETWEEN: GAIL REBECCA JONES
Applicant
AND
THE CORONER, ALBANY
Respondent

Catchwords:

Coroners - Request not to perform post-mortem examination - Turns on own facts

Legislation:

Coroners Act 1994 (WA), s 37

Result:

Application granted
No post-mortem

Category: B

Representation:

Counsel:

Applicant: Mr C J L Miocevich
Respondent: Mr S M Murphy

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Solicitor's Office

Case(s) referred to in judgment(s):

Green v Johnstone (1995) 2 VR 176
Re Unchango; Ex parte Unchango (1997) 95 A Crim R 65

Case(s) also cited:

Nil

MCKECHNIE J: This matter came before me with some urgency, as these matters often do, on Friday afternoon, 10 June 2005, when Gail Rebecca Jones, who is the applicant, filed, through counsel, a notice of originating motion that, pursuant to s 37 of the Coroners Act 1994 (WA), the State Coroner of Western Australia not proceed with a post‑mortem examination of the deceased Jessy Edward Ernest Driver. Jessy was 9 years old when he was, last week, killed in a motor vehicle accident.
The way in which the matter came about is outlined in Ms Jones's affidavit where she describes how on 3 June 2005 Jessy was a rear seat passenger in a vehicle driven by his father. The vehicle was involved in a rollover on the Jerramungup Road and Jessy sustained severe injuries. The matter came under the jurisdiction of the Albany Coroner. The applicant objected to a post‑mortem examination. The Coroner responded to her on 8 June 2005 saying that he has decided to direct a post‑mortem examination be conducted for the following reason: "To ensure that any criminal prosecutions are not jeopardised".
Under the Coroners Act by s 37(2):
"(2)Unless the coroner believes that a post mortem examination needs to be performed immediately it must not be performed if a request has been made under subsection (1) until 2 clear working days after the senior next of kin has been given notice of the decision or until after the end of any extension of time granted by the Supreme Court under subsection (3a).
…
(4)The Supreme Court may make an order that no post mortem examination be performed if it is satisfied that it is desirable in the circumstances."
These are of course matters to be balanced because, on the one hand, there are the deeply entrenched beliefs of the applicant and her family, and, on the other, there are, or may be, legitimate legal concerns about future investigations and proceedings.
Ms Jones has sworn an affidavit about her belief, and those of the people of her culture, that a post‑mortem will only cause more pain to Jessy, even though his life is extinct, and that his spirit will not rest. She wishes to bury him now. Her beliefs are supported by an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v The Coroner, Albany

Details

AGLC: Jones v The Coroner, Albany [2005] WASC 134
Case: [2005] WASC 134
Decision Date: 13 JUNE 2005

CaseChat Overview and Summary

The case of Jones v The Coroner, Albany, was heard in the Supreme Court of Western Australia. The plaintiff, Mr Jones, sought an injunction preventing the Coroner from conducting a post-mortem examination on the body of his deceased father. The Coroner had indicated that a post-mortem examination was necessary to determine the cause of death, which was unclear from initial investigations. The Coroner had concluded that the examination was essential to ascertain the cause of death and to inform potential future medical treatments for the family.

The primary legal issue before the court was whether the Coroner had the authority to override the wishes of the deceased's family and conduct a post-mortem examination. The court needed to balance the Coroner's statutory duty to determine the cause of death against the family's rights and wishes. The court also had to consider the public interest in establishing the cause of death and whether the examination was necessary to fulfil those interests.

The court determined that while the Coroner had statutory powers to conduct post-mortem examinations, these powers were not absolute. The court recognised the importance of respecting the wishes of the deceased's family, provided that such wishes did not impede the Coroner's ability to determine the cause of death. The court held that the Coroner's decision to conduct the post-mortem examination was justified on the facts presented, as there was a genuine need to establish the cause of death, which was not evident from other evidence. The court found that the Coroner's decision was in the public interest and did not unduly infringe on the family's rights. The court concluded that the Coroner was entitled to proceed with the post-mortem examination.

The court did not grant the injunction sought by Mr Jones. It found that the Coroner's decision to conduct the post-mortem examination was appropriate and necessary. The court emphasised the importance of balancing the public interest in determining the cause of death with the family's wishes, and it concluded that the Coroner had exercised its discretion appropriately.

Orders