Paterson v Coroner King - [2019] WASC 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PATERSON -v- CORONER KING [2019] WASC 25
CORAM:   ACTING JUSTICE STRK
HEARD:   18 JANUARY 2019
DELIVERED          :   18 JANUARY 2019
PUBLISHED           :   6 FEBRUARY 2019
FILE NO/S:   CIV 1090 of 2019
BETWEEN:   WENDY KATRINA PATERSON
Applicant
AND
CORONER KING
Respondent

Catchwords:

Coroners Act 1996 (WA) - Application made by senior next of kin for an order that no post mortem examination be performed - Proper constructions of the Coroners Act 1996 (WA) s 37(4) - Relevance of spiritual and cultural beliefs - Relevance of public interest - Turns on own facts

Legislation:

Coroners Act 1996 (WA) s 37

Result:

Application granted
No post mortem examination is to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of any permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased

Category: B

Representation:

Counsel:

Applicant	:	Mr N S Barron & Ms H O'Hara
Respondent	:	Mr C S Bydder

Solicitors:

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

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

Abernethy v Dietz (1996) 39 NSWLR 701
Evans v Northern Territory Coroner [2011] NTSC 100
Gollop v Hand (Unreported, SCt of NSW, 13 August 1998)
Green v Johnstone [1995] 2 VR 176
Jones v The Coroner, Albany [2005] WASC 134
Krantz v Hand [1999] NSWSC 432
Magdziarz v Heffey (Unreported, SCt of Victoria, 3 October 1995)
Morris v Hand (Unreported, SCt of NSW, 27 February 1997)
Pope v State Coroner, (Unreported, SCt SA, 29 January 1998)
Raymond-Hewitt v Northern Territory Coroner [2011] NTSC 94; (2011) 164 NTR 33
Re Death of Simon Unchango (Jnr); Ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65
Resetar v The State Coroner of Victoria [2006] VSC 211
Ronan v The State Coroner [2000] WASC 260
Traynor v Spooner [2012] VSC 651
Wuridjal v Northern Territory Coroner [2001] NTSC 99

ACTING JUSTICE STRK:

(These reasons were delivered extemporaneously at the conclusion of the hearing. They have been edited from the transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)

On 18 January 2019, I heard an urgent application made pursuant to the Coroners Act 1996 (WA) s 37(3), for an order that no post mortem examination be performed.
These are my reasons for ordering that no post mortem examination is to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of a permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased.

Background

The deceased died on 10 January 2019 at Perth Children's Hospital. She was…

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 Paterson v Coroner King

Details

AGLC: Paterson v Coroner King [2019] WASC 25
Case: [2019] WASC 25
Decision Date: 6 FEBRUARY 2019

CaseChat Overview and Summary

The case of Paterson v Coroner King involved the deceased's family, represented by the senior next of kin, and the Coroner, who had ordered a post-mortem examination. The dispute centred around the application by the senior next of kin under section 37(4) of the Coroners Act 1996 (WA) for an order to prevent the post-mortem examination, citing spiritual and cultural objections. The Supreme Court of Western Australia was tasked with determining the proper interpretation of the statutory provision and weighing the family's objections against the public interest.

The central legal issues revolved around the interpretation of section 37(4) of the Coroners Act 1996 (WA), specifically whether the senior next of kin had the authority to prevent a post-mortem examination based on spiritual and cultural beliefs. The court also had to consider the relevance of these beliefs in relation to the public interest in conducting the examination, which is a statutory duty of the coroner. The court needed to balance these competing considerations to determine the appropriate course of action.

In delivering the judgment, the court examined the plain language of the statutory provision and found that the authority to apply for an order to prevent a post-mortem rested with the next of kin. However, the court emphasised that this authority was not absolute and had to be exercised in a manner that took into account the public interest. The court concluded that the senior next of kin's application was valid but needed to be assessed on its own facts. In this instance, the court found that the spiritual and cultural objections were compelling and that the public interest did not outweigh them. Consequently, the court granted the order preventing the post-mortem examination.

The final orders of the court included an injunction preventing the coroner from conducting the post-mortem examination, thereby respecting the family's spiritual and cultural beliefs while also acknowledging the public interest in the coroner's duty to investigate the cause of death.

Orders