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

1. 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.

2. 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". 

3. 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."

4. 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.

5. 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 affidavit of Albert Wilkes Corunna who is an Elder in the community and who confirms Ms Jones's affidavit as to the cultural beliefs involved.  I accept this evidence which is unchallenged.

6. Mr Miocevich of counsel for the applicant this morning made available to me the reported cases of Green v Johnstone (1995) 2 VR 176 and Re Unchango; Ex parte Unchango (1997) 95 A Crim R 65. I have had the opportunity of reading those authorities before coming into Court and also the decision of Miller J in the matter of Edward John Dryden (Snr) & Anor and Gallagher v Coroner at Broome CIV 1063 of 2004 and CIV 1064 of 2004 on 22 January 2004.

7. This morning, Mr Murphy of counsel, on behalf of the Coroner, informed the Court that the Coroner does not consent to the order, although he does not particularly oppose the order.  The Coroner's concern is the legal proceedings and I acknowledge that this is a legitimate concern.  The Court is indebted to counsel for the Coroner who only was served with these papers, at my direction, on Friday late in the afternoon.

8. Counsel for the Coroner has handed in, without objection, a forensic pathology interim report of an external examination performed on 9 June 2005 by Dr Cadden, an experienced forensic pathologist.  By external examination Dr Cadden is able to conclude that the cause of death was "Multiple injuries, including, severe neck injury".

9. I take account of the legal proceedings but it seems clear to me that it is desirable that the cultural and spiritual beliefs of the applicant predominate over anything else especially when there is in fact no difficulty in reaching a conclusion as to the cause of death by external examination and a post‑mortem is unlikely to add anything further to the facts surrounding the sad event. 

10. I order that the Albany Coroner not proceed with a post‑mortem examination of Jessy Edward Ernest Driver.