Paterson v Coroner King
[2019] WASC 25
•6 FEBRUARY 2019
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 14 years old.
The applicant is the deceased's mother, and for the purpose of the Coroners Act s 37, the applicant is the senior next of kin.[1] The application is supported by the deceased's father, Mr Geoffrey Dean Pryor.
[1] Coroners Act 1996 (WA) s 37(5).
On 10 January 2019, the Coroner's Court was advised by the Western Australian Police Force of the death of the deceased, and that the deceased's father objected to a post mortem examination being performed on the deceased.[2]
[2] Affidavit of Gary Stephen Cooper, Principal Registrar of the Coroners Court of Western Australia, sworn on 18 January 2019 par 5 - 6.
On 11 January 2019, the respondent wrote to the applicant and to Mr Pryor, informing them that he had decided that a post mortem examination was necessary.[3] The respondent proffered the following reason for his decision:
On the basis of information available to me at this time, it does seem likely that [the deceased] died from ligature compression of the neck, though a forensic pathologist has not yet examined her body. Despite that likelihood, even if a coroner can determine what caused [the deceased's] death the coroner will also have to determine the circumstances surrounding her death.
The information currently available indicates, among other things, that [the deceased] may have ended her life due to psychological stress associated with circumstances that might be identified through a full post mortem examination.
I have therefore decided that a post mortem examination is necessary.
[3] Affidavit of Gary Stephen Cooper, Principal Registrar of the Coroners Court of Western Australia, sworn on 18 January 2019 par 7, 'GC2'.
This correspondence constituted notice in writing to the senior next of kin for the purposes of the Coroners Act s 37(1).
The Coroners Act s 37(2) provides that 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 s 37(1) until two 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 s 37(3a).
The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed.
On 15 January 2019, the applicant made an urgent ex parte application pursuant to s 37(3a). I heard the application and granted the applicant an extension of time in which to apply to this court for an order that no post‑mortem examination be conducted, having been satisfied that exceptional circumstances existed so that it was necessary in the interests of justice to grant the extension.
The substantive application was promptly made on behalf of the applicant and listed for hearing on an urgent basis.
Materials before the court
In support of the application, the applicant her affidavit affirmed on 17 January 2019; the affidavit of Mr Pryor affirmed on 17 January 2019; the affidavit of Elizabeth Hayden, Noongar Elder, cultural advisor and social worker, sworn 17 January 2019; and sought to rely upon a written outline of submissions.
The respondent opposed the application and read the affidavit of Mr Cooper, the Principal Registrar of the Coroner's Court, sworn 18 January 2019; the affidavit of Jodi Nicole White, Consultant Forensic Pathologist and the Head of Department of Forensic Pathology in the QEII Network, Path West Laboratory Medicine WA, affirmed on 18 January 2019; and also sought to rely upon a written outline of submissions.
Circumstances of the deceased's death
The circumstances of the deceased's death, as understood by the applicant at the time of making the application, were described as follows.[4]
[4] Applicant's outline of submissions filed 17 January 2019 par 3(a) - (d), and footnote 1.
Early in the morning of 2 January 2019, the deceased attempted to take her own life by hanging herself in the bathroom of Mr Pryor's home in Kardinya. The deceased was found by Mr Pryor and conveyed to Fiona Stanley Hospital. She was later transferred to Perth Children's Hospital. On 10 January 2019, the deceased was pronounced dead at Perth Children's Hospital. A video, apparently recorded by the deceased on an iPad, was subsequently discovered by the deceased's sister. The video is in the possession of police officers investigating the death, and apparently includes discussion from the deceased of her decision to end her life.
The applicant's reasons for opposing the performance of a post mortem examination
The applicant opposes the performance of a post mortem examination on the deceased on spiritual and cultural grounds.
The applicant is an Aboriginal woman who was raised in South Australia, and who has lived in Western Australia and Victoria. She was brought up by her father's parents, who were a part of the Aboriginal community in the Riverland area of South Australia, and was encouraged to learn about her Aboriginal culture. The applicant's evidence is that it is her absolute belief that if an autopsy is carried out, the deceased's soul will be forever tormented and will never have peace; but if her body is buried whole, her spirit will be at peace. The applicant also deposes to her belief as to the distress that will be caused to her family by the performance of a post mortem examination.[5]
[5] Affidavit of Wendy Katrina Paterson affirmed 17 January 2019 par 19 - 27.
Mr Pryor is a Noongar man, whose ancestors were from the Perth area. He deposes to his belief in an Aboriginal afterlife, and that it is his belief that the deceased should not be cut.[6]
[6] Affidavit of Geoffrey Dean Pryor affirmed 17 January 2019.
The applicant also relied (without objection) on the evidence of Ms Hayden, cultural advisor and social worker. Ms Hayden is recognised by the Noongar community of the South West of Western Australia as an Elder. Ms Hayden deposes to having shared her cultural knowledge and expertise in various capacities with the Western Australian community, Aboriginal community, the Government of Western Australia, and non-government organisations.
Ms Hayden does not know the applicant, Mr Pryor, nor the deceased personally. Ms Hayden deposes that it is her understanding of Noongar culture and spirituality that the body of the deceased should not be disturbed as it will prevent peaceful passage to the Dreamtime; the consequence of disturbance will be that the spirits of the deceased and her surviving family will be unsettled; and that these cultural and spiritual beliefs are shared by other Aboriginal groups in Western Australia.[7] Ms Hayden further deposes that:[8]
By undertaking a post mortem examination, the deceased's body will be disturbed. The scars created by the post mortem examination will unsettle the spirit of the deceased and will prevent her peaceful passage into the Dreamtime.
[7] Affidavit of Elizabeth Hayden sworn 17 January 2019 par 9 - 10.
[8] Affidavit of Elizabeth Hayden sworn 17 January 2019 par 11.
The respondent's position
The respondent did not take issue with the admission of the evidence of the spiritual and cultural beliefs of the deceased's family, nor with the admission of the evidence of Ms Hayden. The respondent accepted that the applicant's cultural beliefs, and the effect on the applicant and her family of the performance of a post mortem examination on the deceased, are relevant considerations in the determination of an application made pursuant to s 37(3).[9] The respondent maintained however, that while great care should be taken to ensure that spiritual and cultural beliefs are not disregarded or abused, they are not determinative and must be balanced against the public interest.[10]
[9] Outline of submissions on behalf of the respondent dated 18 January 2019 par 10.
[10] Outline of submissions on behalf of the respondent dated 18 January 2019 par 10; Green v Johnstone [1995] 2 VR 176, 179; Jones v The Coroner, Albany [2005] WASC 134 [9]; Raymond-Hewitt v NorthernTerritory Coroner [2011] NTSC 94; (2011) 164 NTR 33, 38 [30] - [32]; Ronan v The State Coroner [2000] WASC 260 [4] - [7]; Re Death of Simon Unchango (Jnr); Ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65, 69 - 71; Wuridjal v Northern Territory Coroner [2001] NTSC 99 [10] - [14].
As at the time of the hearing of the application, no post mortem examination of any kind had been performed on the deceased.[11]
[11] Affidavit of Jodi Nicole White affirmed on 18 January 2019, par 8.
It was clear from the evidence of Ms White that a post mortem examination may include a range of procedures. Less invasive procedures include x‑raying the body and obtaining samples for toxicology testing without making incisions in the body, such as obtaining blood, fluid from the back of the eye, and (where the bladder appears to be full) obtaining a urine sample. Invasive procedures (that might be conducted in a 'full' post mortem examination)[12] include the removal of tissue and internal examination.[13]
[12] The Coroners Act does not distinguish between a 'full' post mortem examination, and a more limited one. It is a distinction discussed by Ms White in her affidavit affirmed on 18 January 2019.
[13] Affidavit of Jodi Nicole White affirmed on 18 January 2019, pars 9 – 12.
It was the respondent's position that a 'full' post mortem examination was necessary in the circumstances of this case in light of the following.
First, the coroner must find, if possible, the cause of death. The respondent says that while it seems likely that the deceased's death was caused by ligature compression of the neck, the cause of death cannot be determined without a post mortem examination.[14]
[14] Outline of submissions on behalf of the respondent dated 18 January 2019 par 16.
In this regard, Ms White deposes that from the information that she had been provided by the coroner in relation to the deceased, it is possible that she may be able to determine the cause of death without a full post mortem examination. However, if a 'full' post mortem examination was to be performed, she would be able to exclude certain possibilities as to the cause of death of the deceased that she could not otherwise exclude.[15]
[15] Affidavit of Jodi Nicole White affirmed on 18 January 2019, pars 13 - 14.
Secondly, in the absence of a decision (which had not been made) that there was no public interest in making a finding, the coroner must find if possible how the death occurred. The respondent observed that limited information had been obtained about how the death of the deceased occurred (that is, the surrounding circumstances), but the information that was available required further investigation which may be assisted by a 'full' post mortem examination.[16]
[16] Outline of submissions on behalf of the respondent dated 18 January 2019 par 17.
Legislative framework
The functions of the State Coroner include ensuring that all reportable deaths reported to a coroner are investigated, and a coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death.[17]
[17] Coroners Act s 8(c) and 19(1).
Among other things, the coroner investigating a death must find if possible how death occurred; and the cause of death.[18] However, a coroner is not under a duty to make a finding as to how death occurred, even if it is possible to do so, if there is no duty to hold an inquest into the death under the Coroners Act; and the coroner determines that there is no public interest to be served in making a finding as to how the death occurred.[19]
[18] Coroners Act s 25(1)(b) and (c).
[19] Coroners Act s 25(1A).
The term 'post mortem examination' is given a broad definition, being an examination of the body of a person who has died, for the purpose of investigating the death.[20] It is an examination conducted by a pathologist or a doctor.[21]
[20] Coroners Act s 3.
[21] Coroners Act s 34(1).
A post mortem examination does not necessarily involve cutting, or the removal of tissue. A coroner may however, direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death.[22] This power is subject to the limits prescribed in s 34.
[22] Coroners Act s 34(2).
34.Post mortem examinations
(1)If a coroner reasonably believes that it is necessary for an investigation of a death, the coroner may direct a pathologist or a doctor to perform a post mortem examination on the body.
(2)The coroner may direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death.
(3)The pathologist or doctor performing the post mortem examination may cause tissue to be removed from the body -
(a)in accordance with a direction under subsection (2); or
(b)in accordance with the written permission of the deceased; or
(c)subject to subsection (5)(b), in accordance with the written informed consent, in the prescribed form, of the senior next of kin of the deceased specifying the tissue which may be removed and the purpose (therapeutic, medical, teaching or scientific) for which the tissue may be removed.
(4)The coroner may direct the pathologist or doctor performing the post mortem examination not to cause tissue to be removed as authorised under subsection (3)(c) if the coroner is satisfied that the removal would be contrary to or inconsistent with wishes expressed in writing by the deceased.
(5)Where a post mortem examination is performed under this Act a person who causes tissue to be removed from the body -
(a)otherwise than as authorised under subsection (3); or
(b)contrary to a direction of a coroner under subsection (4),
commits an offence.
Penalty: $10 000.
(6)Tissue removed under subsection (2) is to be dealt with in accordance with the coroner’s directions and any relevant guidelines.
(7)Where tissue is to be removed as authorised under subsection (3)(b), the coroner is to ensure that before the tissue is removed, the senior next of kin of the deceased is informed in writing what tissue is to be removed and the purpose for which it is to be removed and is given a chance to view the written permission of the deceased.
As noted above, the Coroners Act s 37(2) provides that 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 s 37(1) until two 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 court under s 37(3a).
The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed. The court may make an order that no post mortem examination be performed if it is satisfied that it is desirable in the circumstances.[23]
[23] Coroners Act s 37(4).
Nature of the court's jurisdiction
A hearing of an application made pursuant to the Coroners Act s 37(3) is not constrained by the coroner's original decision to order a post mortem examination under s 34(1), nor is the application limited to circumstances where there has been an error. The court is '… not being empowered to sit on appeal from [the coroner's] order but to exercise the jurisdiction afresh in the light of s 37 and look to what is desirable in all of the circumstances.'[24]
[24] Re Unchango, 70.
I agree with the appellant's contention that in hearing an application made pursuant to s 37(3), the court is entitled to have regard to a broad range of issues, and is not confined to considering the interests of a coroner in fulfilling his or her duties under the Coroners Act s 25.
The jurisdiction of the court clearly extends to ordering that no post mortem examination be performed if it is satisfied that it is desirable in the circumstances.[25]
[25] Coroners Act s 37(4).
It was common ground as between the applicant and the respondent that the court may make an order pursuant to s 37(4), subject to a proviso or conditions.[26]
[26] ts 10 – 11, ts 13 – 14 (18 January 2019).
Such an approach is consistent with the nature of the court's jurisdiction. This court is not being empowered to sit on appeal from the coroner's decision, but to exercise the jurisdiction afresh, to balance compelling and competing views, and to look into what is desirable in all of the circumstances.[27]
[27] Re Unchango, 70.
This approach was adopted by Anderson J in Ronan v The State Coroner where at [7], his Honour found as follows:
It is always of course a balancing exercise; the interests on one side have to be weighed against the interests on the other, essentially. Because there is in this case absolutely no indication that there are suspicious circumstances, I have come to the conclusion that the spiritual and cultural beliefs to which I have referred outweigh the public interest in knowing the precise cause of this death. For these reasons, I am prepared to make the order which I have indicated that I will make. For the sake of formality, I will put a proviso into the order: save for the taking of blood and urine samples.
At the hearing of the application, counsel for the applicant confirmed that the applicant did not object to an external examination of the body being performed. The applicant's concern, and the concern of her family, arose from the amount of time that had elapsed, but more so from the act of autopsy, and the cutting and scarring of the body of the deceased. The concern did not arise from the possibility of any examination being performed at all.[28]
[28] ts 10 (18 January 2019).
Determination
In exercising the jurisdiction afresh and in giving consideration to what is desirable in all of the circumstances, I determined that it was appropriate to order that no post mortem examination was 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.
In coming to this decision, I weighed the following matters in the balance.
The spiritual and cultural beliefs of the deceased person's family
It is clear on the authorities that it is appropriate and proper to have regard to the spiritual, cultural and religious beliefs of a deceased person's family in determining whether a post mortem examination ought to take place.[29]
[29] Green, 179; Re Unchango, 69 - 70; Ronan v State Coroner [5]; Jones v The Coroner, Albany; Traynor v Spooner [2012] VSC 651 [61]; Evans v Northern Territory Coroner [2011] NTSC 100 [21].
On the affidavit evidence that was before me, I accepted that it was the strong wish of the deceased's parents that no post mortem examination take place; that the applicant was especially concerned that if the deceased's body was subject to a post mortem examination, her daughter's spirit would not be able to find peace; that this is a concern was genuine and was shared by her immediate family; and that it is a genuinely and strongly held belief which is found in Aboriginal cultural broadly, and is reflected in local Aboriginal cultural groups including the Noongar People.
The public interest
The respondent said, to which I agreed, that the applicant's cultural and spiritual beliefs, and the effect on the applicant and her family of the performance of a post mortem on the deceased must be balanced against the public interest.
I also agreed with the respondent that where a post mortem examination would be of more than marginal assistance in the proper exercise of coronial functions, functions which the coroner is legally obliged to perform, the public interest in undertaking an examination will often outweigh the great distress that performing that examination will have on the family of the deceased person.[30] On behalf of the respondent, the following circumstances were cited by way of example: where there are suspicious circumstances surrounding the death;[31] where a pathologist is unable to conclude a cause of death absent a post mortem examination;[32] and where a post mortem examination may reveal something meaningful about the circumstances of death.[33]
[30] Outline of submissions on behalf of the respondent dated 18 January 2019 par 12; citing Abernethy v Dietz (1996) 39 NSWLR 701, 708, 709; Green v Johnstone, 178 - 179; Re Unchango 69 - 71; Morris v Hand (Unreported, SCt of NSW, 27 February 1997), 4; Pope v State Coroner, (Unreported, SCt SA, 29 January 1998), 5 - 6; Ronan v State Coroner [7]; Wuridjal v NT Coroner, 208 [13].
[31] Outline of submissions on behalf of the respondent dated 18 January 2019 par 12(a); citing Green v Johnstone, 179; Gollop v Hand (Unreported, SCt of NSW, 13 August 1998), 2 - 3; Krantz v Hand [1999] NSWSC 432 (41), (48); Ronan v State Coroner [7]; Wuridjal v NT Coroner, 209 [11]; Raymond‑Hewitt v NT Coroner, 38 [32]; Traynor v Spooner [70].
[32] Outline of submissions on behalf of the respondent dated 18 January 2019 par 12(b); citing Magdziarz v Heffey (Unreported, SCt of Victoria, 3 October 1995), 6.
[33] Outline of submissions on behalf of the respondent dated 18 January 2019 par 12(c); citing Resetar v The State Coroner of Victoria [2006] VSC 211 [12]; Raymond‑Hewitt v NT Coroner 37 [21].
Counsel for the applicant cited a number of cases where the court ordered that no post mortem examination be conducted despite the fact that in each instance, the public interest factors that had led the coroners in question to direct the performance of post mortem examinations were compelling.[34]
[34] Applicant's outline of submissions filed 17 January 2019 par 17; citing Re Unchango; Ronan v State Coroner; Jones v The Coroner, Albany.
Whilst examination of the authorities was undoubtedly relevant, and I had regard to them, it was necessary to adjudicate upon the particular facts that applied in this case.[35]
The coroner must find if possible the cause of death
[35] Re Unchango, 69, 71.
In coming to my decision, I weighed in the balance that a coroner must find, if possible, the cause of death. This is not a case where death was a result of natural causes. In this case, while it seemed likely that the deceased's death was caused by a ligature pressure to the neck, I accepted that the cause was unlikely to be able to be conclusively determined without a post mortem examination. I weighed in the balance the fact that the information available to the police as at the date of hearing was limited. At that time, the police did not have the benefit of a complete statement from the deceased's father.
However, from the notice issued by the coroner, it could be reasonably construed that as at 11 January 2019, the coroner did not harbour any particular suspicion that the deceased's death was caused by anything other than suicide. It would appear that the coroner's purpose in ordering a post mortem examination was to better understand the factors that might have contributed to her death, rather than to determine the actual cause of death.
The coroner must find if possible how the death occurred
In the circumstances of this case, the legislation imposes on the coroner investigating the death of the deceased a duty to find if possible how death occurred.[36] Further, the coroner had not determined that there would be no public interest to be served in making a finding as to how the death occurred.[37]
[36] Coroners Act s 25(1)(b).
[37] Coroners Act s 25(1A).
I accept that at the hearing of the application, there was limited information available as to the circumstances surrounding the death of the deceased, and that the coroner's investigation into how the death occurred might be assisted by a full post mortem examination.[38] It weighed in the balance against the applicant that the circumstances of death were not already well known.
[38] Outline of submissions on behalf of the respondent dated 18 January 2019 par 17.
I also weigh in the balance that a post mortem examination may yield information relevant to public health matters, such as the better understanding of the causes and circumstances of suicide in the community.
Taking into account and balancing all of the evidence and the interests before me, including the public interest, I found that it was desirable that the cultural and spiritual beliefs of the applicant prevailed and that there be no examination of the deceased which involves making a cut or incision into the body of the deceased, or the making of a permanent mark on the body of the deceased.
After delivering these reasons extemporaneously, counsel conferred and together presented the following form of order for consideration by the court. Counsel for the respondent confirmed that its terms were sufficiently clear for the purposes of the pathologist directed to perform the post mortem examination on the body of the deceased, and for the purposes of the coroner, to determine what can and cannot be done.[39]
[39] ts 32 (18 January 2019).
Order
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 these restrictions, any other post mortem examination may be performed on the body of the deceased.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Acting Justice Strk
6 FEBRUARY 2019
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