Mapapalangi & Anor v State Coroner of Victoria

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE PRACTICE COURT

No. 134 of 2008

MELEPAEA MAPAPALANGI & ANOR	Applicants
v
STATE CORONER OF VICTORIA	Respondent

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2008
DATE OF JUDGMENT:	28 November 2008
CASE MAY BE CITED AS:	Mapapalangi & Anor v State Coroner of Victoria
MEDIUM NEUTRAL CITATION:	[2008] VSC 535

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Coroner – Autopsy – Infant – Application for order that no autopsy be performed – Tongan culture and beliefs – Coroners Act 1985, s 29(4).

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr T. Ashton	Murray Mallee Community Legal Service
For the Respondent	Mr D. A. Ryan, Solicitor	Victorian Government Solicitors’ Office
HIS HONOUR:

This is an application made by the parents of a recently deceased infant for an order under s.29(4) of the Coroners Act 1985 that no autopsy be performed upon the body of the infant.
The parents, Savelio and Melepaea Mapapalangi, are the applicants and the State Coroner of Victoria is the respondent. I have heard the application sitting in the Practice Court with the parents being present by video link from Mildura.
There has been no cross-examination of the deponents of the affidavits in support of the application, the father has given some additional evidence to that deposed in his affidavit.
This is one of those cases in which, apart from the normal, well understood personal distress of a bereaving parent contending with the prospect of their recently deceased infant being subjected to an autopsy, there are considerations based upon the cultural background and attitudes of the parents who are Tongan by birth. I will come to those in a moment.
What I will have to do in the determination of the application is to balance, by reference to the relevant circumstances, the public interest in the ascertainment of reasons for an unexplained death and the private interest of the parents and family of the deceased infant who do not wish the body to be subjected to autopsy.
Cases arise in this area in a variety of circumstances, not uncommonly in the area of those of aboriginal descent and those where there is a particular religious aspect, but every case depends on its own circumstances and the conclusion of a judge as to what is desirable overall.
As far as Mr and Mrs Mapapalangi are concerned, they are, as I have said, of Tongan descent and Tongan is their main language. Mr Mapapalangi gave evidence by interpreter. Mrs Mapapalangi does not read or write English. She is aged 39 and has nine children; five sons and four daughters. The infant concerned, named Francis of Assisi Mapapalangi, was aged only 28 days when he died. On 21 November last, Mrs Mapapalangi fed the baby and put him down. The baby was alright. The next morning she found the baby not breathing and notwithstanding the assistance that was immediately rendered, the baby had died.
It was at that point that the matter of an autopsy and the sending of the body of the baby to Melbourne commenced to arise. The long and short of it is that the parents opposed the undertaking of an autopsy. The coroner refused their request not to have an autopsy and provided reasons. The parents and family, having a very deep opposition to an autopsy being performed, have then brought this application.
The coroner's file has been produced to me and I have had the opportunity to peruse it. It is to be noted that it contains a report from the police in Mildura who concluded that as a result of their inquiries there was no indication of any neglect or suspicious circumstances surrounding the infant's death and that, from the point of view of obtaining evidence for any criminal offence regarding the death, there was no need for an autopsy to be performed.
From the coroner's point of view, it is of course the situation that without an autopsy being performed, the cause of death cannot be predicated with any certainty. It may be speculated, as the pathologist has in his advice to the coroner, that it may be there was a congenital malformation or it may be there was an infection or it may be that it is one of those unfortunate, unexplained situations. It may be, of course, that even if an autopsy is performed, the cause of death may not be ascertained which does not, of course, have any necessary reflection upon the parents.
As I have said, there is an obvious public interest in there being information as to the cause of death when that has occurred without apparent explanation or visible reason, and I do not overlook that by any means.
I turn then to the circumstances affecting the parents in particular. It is not to be overlooked that, unfortunately, Mrs Mapapalangi has previously lost two babies, one on 13 June 2005 when she was six months pregnant and the other on 12 December 2007 when she was seven months pregnant, and each was subjected to autopsy. Each experience has caused suffering and distress, the extent of which may readily be understood as accentuated by the cultural views and background of Mr and Mrs Mapapalangi. What the coroner now proposes is the third occasion when the distress of an autopsy would be visited upon this couple.
The particular matter of the Tongan culture that I have referred to is described by Mrs Mapapalangi in her affidavit.
I should say first that the family are practising Catholics, they have a strong faith and attend church each week. That is one thing, but separately in the Tongan culture, it is believed that when a person dies, their spirit goes to heaven and the funeral needs to be had before three nights have passed. There is a strong view taken that the body should not be opened after death, that the body can feel the cold even after it is dead. It is believed to be bad luck to leave a body cold and not buried. In their family the bad luck would be worse if the body was cut open. The family wishes to bury the infant in the way that their culture says they should.
Further, if an autopsy was had, it is apprehended that some members of the family would not wish to come to the funeral because the body had been made less important. The tradition and culture is that upon death, all family immediately attend at the home and stay for a period. This is of great significance but the normal course of events that would follow would not occur in the same way if the infant had been subjected to an autopsy, because of the Tongan respect for the dead, whose body should be kept as it was. The family want to and expect to see the body. Even some of those who did come would not see the body, but sit outside because it would hurt them if the body was not kept as it was.
What I have to do is to take account of these relevant circumstances. I have not set out all that has been said in the affidavits, including by the Tongan pastor, Mr Puku, and the Tongan catholic chaplain, Reverend Tupou, but I have regard to all that they have said.
In all the circumstances the view that I come to is that it is desirable that it be ordered that there be no autopsy performed on the body of Francis of Assisi and I do so order.

[2008] VSC 535

28 November 2008