Resetar v State Coroner of Victoria

[2006] VSC 211

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 6654 of 2006

MIRJANA RESETAR	Applicant
V
THE STATE CORONER OF VICTORIA	Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2006
DATE OF JUDGMENT:	13 June 2006
CASE MAY BE CITED AS:	Resetar v The State Coroner of Victoria
MEDIUM NEUTRAL CITATION:	[2006] VSC 211

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CORONER –Autopsy- Decision by coroner to direct an autopsy- Request under s 29(1) of Coroner’s Act 1985 to coroner not to direct autopsy by mother of deceased man –No evidence of violence- Exercise of discretion under s 29(4) of the Coroner’s Act 1985 –Whether desirable to order that no autopsy be performed in the circumstances - Coroner’s Act 1985  s29 (4), s 29(5)

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Klemens	Goldsmiths
For the Respondent	Ms S L Hinchey	Victorian Government Solicitor

HER HONOUR:

1. The applicant, Mrs Resetar, has applied under s 29(4) of the Coroners Act 1985 (“the Act”) for an order that no autopsy be performed upon the body of her late son, Mr Samuel Resetar. Mrs Resetar brings this application as her son’s “senior next of kin” within the meaning of s 29(5) of the Act. Under s 29(4), the Court may make an order that no autopsy be performed if it is satisfied that it is desirable in the circumstances.

1. Mr Resetar was 18 years old when he died on about 31 May 2006.  His death appears to have been unexpected and, as a result, it was reported to a Coroner, whose functions[1] include the obligation to investigate it as a “reportable death” under s 3 of the Act. The Coroner reviewed the file relating to the death and requested that the Senior Forensic Pathologist at the Victorian Institute of Forensic Medicine, Dr Michael Burke, visually inspect Mr Resetar’s body. Dr Burke reported to the Coroner that he was unable to determine the cause of death, without a full toxicological analysis and autopsy. The Coroner requested that documents relating to Mr Resetar’s medical history be supplied, but no such documents have been produced by the hospitals contacted by the Coroner’s Court staff. The Coroner decided that an autopsy is necessary, in the absence of sufficient medical evidence to enable her to find how Mr Resetar died and what caused his death, as required, respectively, by s 19(1)(b) and (c) of the Act.

   [1]Under s 7 (c) of the Act.

1. Mr Resetar was found dead at home on 31 May 2006.  In material before the Coroner which is in evidence in this Court, Mrs Resetar describes her son as having suffered from an intellectual disability, being barely able to speak.  He was unable to read or write and only left the house environment on rare occasion.  Mrs Resetar had separated from Mr Resetar’s father before their son’s birth and has devoted her life to his care.  She loved him very much.  She states that, although she took Mr Resetar to see some doctors when he was very young and he also attended a psychologist, she did not “resort to taking him to doctors or subjecting him to conventional medicine”.  She notes a psychologist’s opinion that her son was “severely globally delayed” and states that his intellectual disability was obvious.  She reports that, although he had not been specifically diagnosed with epilepsy, it had been suggested that he might have suffered from that condition.  During his childhood, Mrs Resetar was also told that her son had a heart murmur and, at one stage, there was a suggestion made to her that he might suffer from autism. 

1. Mrs Resetar and Mr Resetar lived together at a number of places, including high rise flats in Carlton.  Early on, Mrs Resetar herself had tried medication given to her baby, in order to ensure that it was suitable for him.  She also used homeopathic remedies.  She stayed away from doctors, having perceived that Mr Resetar had an instinct which resisted even the homeopathic remedies she used for him.  Mrs Resetar did use essential oils to help her son in relation to his disabilities and enhance his quality of life, believing in their powers.  She describes the intervention of child protection workers after neighbours had complained about her son’s screaming. 

1. Mr Resetar was unable to be enrolled at school, because of his behaviour.  Mrs Resetar attempted to educate her son at home, from the age of six.  In 1997, when they moved house, Mr Resetar went outside for the first time in four years.  Moonee Valley Council provided assistance with shopping, because Mr Resetar would not leave the house.  Although the Council produced some records of its interaction with the family,  it did not produce any medical records relating to Mr Resetar. 

1. Sometime during the night between 30 May 2006 and the following day, Mrs Resetar says that she checked on her son, who had appeared to be sleeping normally.  She states that she later awoke to a sound from his room and found him having difficulty breathing.  She reports that she commenced mouth to mouth resuscitation.  She says that she attempted to treat him with oils and vanilla essence, massaging him and rubbing his cold face with a cloth.  She states that, eventually, when her son’s condition did not improve, she called an ambulance.  Ambulance officers told her that he had died.  Neither the cause nor the circumstances of death were able to be established by medical staff at the Royal Melbourne Hospital where Mr Resetar’s body was later taken.  However, examination of his body revealed no signs of violence.

1. Dr Burke was informed of the suggestions of epilepsy, heart murmur and autism and stated that although heart murmur or the epilepsy might be associated with sudden death, autism is unlikely to have contributed to it.  Having visually inspected the body and conducted a CT scan, Dr Burke formed the opinion that, in order to exclude a myriad of other causes of sudden death not associated with either epilepsy or heart murmur, an autopsy would need to be conducted.  As part of his report to the Coroner, Dr Burke stated:

“… because of the unusual circumstances in which Mr Resetar died, his young age and the lack of any known and independently validated medical history in relation to him, the only reliable way to determine the cause of death in this case is to conduct an autopsy.”  

1. The State Coroner believes that there are a number of issues of public interest raised by this case which necessitate an autopsy being performed.  First of all, the Coroner must carry out her statutory function.  The autopsy is an integral part in the coronial investigative process.  Unless an autopsy is performed, the Coroner will not be able to make the comments she is empowered to make on matters of public health and safety and the administration of justice in relation to Mr Resetar’s death.  She could not otherwise determine whether better care of Mr Resetar would have altered the outcome of his case or whether those who came into contact with Mrs Resetar and her son  could have done more to assist them.

1. Mrs Resetar does not have any specific religious convictions, but she believes in a greater being who oversees us all.  She also has faith in the powers of essential oils and spiritual healing.  She considers an autopsy to be a brutal, inhumane and unnatural procedure, a desecration of her son’s body which contravenes the spiritual laws to which she and he subscribed.  She argues that the conduct of an autopsy “to satisfy curiosity” would be wrong and disrespectful of her son.  She states that an autopsy would cause her shame for not having been able to allow her son to rest in peace, as well as great hurt, grief and anguish.  She does not believe that the public interest demands such a course. 

1. In the exercise of the discretion under s 29(4) of the Act, the Court must attempt to balance the public interest and the interests of the deceased person’s family when deciding whether an autopsy is desirable in all the circumstances of a particular case. On occasion, the Court has permitted autopsies over the objection of family members[2] and, on others, it has prevented autopsies from being carried out, on the basis of cultural[3] and religious beliefs[4], in the absence of evidence of suspicious circumstances.  I have taken into account the authorities to which I have been referred by counsel.  Each situation is different, although assistance is to be gained from decisions in other cases.  I note that this case differs from others where an autopsy has been prevented in circumstances in which the available evidence suggests a probable or likely cause of death[5].

   [2]Magdziarz v Heffey (Unreported, Supreme Court of Victoria, 3 October 1995).

   [3]Green v Johnstone [1995] 2 VR 176.

   [4]Bendet v State Coroner (Unreported, Supreme Court of Victoria, 22 August 1999); Horvath v State Coroner [2004] VSC 452.

   [5]Green v Johnstone [1995] 2 VR 176; Horvath v State Coroner of Victoria [2004] VSC 452.

1. I have carefully considered all the material before me.  I am satisfied that the autopsy should be permitted, given Mr Resetar’s apparently unexpected and unexplained death and the unusual circumstances of his life in the seclusion of the home, under the care of his mother and, apparently without the support of medical or other services.  I reach this conclusion bearing in mind Mrs Resetar’s strongly held beliefs and the understandable anguish this procedure is likely to cause her. 

1. The autopsy would not be carried out to satisfy curiosity, as Mrs Resetar fears. It is a necessary step in the process of the Coroner carrying out her statutory functions. I am satisfied that the Coroner cannot otherwise determine how or in what circumstances Mr Resetar died. In my view, in this particular case, the public interest in enabling the Coroner to find the answers to those questions and to make relevant comments which might prevent other such deaths, on balance, warrants the procedure. I am not satisfied that it is desirable that an order under s 29(4) of the Act be made.

1. I will refuse the application.