Rosenbaum v West - [2014] VSC 583

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT

SCI 2014 04249

NORMAN ROSENBAUM	Appellant
v
IAIN WEST (DEPUTY STATE CORONER)	Respondent

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JUDGE:	FERGUSON JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2014
DATE OF RULING:	15 August 2014 (revised 20 October 2014)
CASE MAY BE CITED AS:	Rosenbaum v West
MEDIUM NEUTRAL CITATION:	[2014] VSC 583

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CORONERS COURT — Appeal on a question of law against Coroner’s direction to perform autopsy — No consideration as to whether appropriate to direct that there be an autopsy — Appeal allowed — Determination of whether necessary and appropriate to direct that there be an autopsy — No cause of death established — Death at relatively young age (56), did not attend doctor so no past medical history, morbidly obese, post mortem CT scans did not disclose cause of death — Deceased and family practising Orthodox Jews — Faith prohibits autopsy intervention and requires quick committal — No evidence of suspicious circumstances — No evidence that public need protection because of circumstances of death — No autopsy to be performed — Coroners Act 2008 (Vic) ss 4, 8, 15, 25.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R van de Wiel one of Her Majesty’s Counsel	Charlesworth Josem Partners Pty Ltd
For the Respondent	Mr S Reid	Jessica Wilby, Principal In‑House Solicitor, Coroners Court of Victoria

HER HONOUR:

Norman Rosenbaum is a practising Orthodox Jew. So too was his late wife, Ettie. They have three adult children who are of the same faith. Mrs Rosenbaum passed away at the age of 56.

The circumstances of her death, so far as they are known, are as follows. Mrs Rosenbaum spoke to their house keeper at 4.40 pm on Sunday 10 August 2014. The house keeper found Mrs Rosenbaum 20 minutes later in their upstairs bedroom slumped over a computer. The ambulance service attended and commenced CPR. Mrs Rosenbaum passed away in the ambulance on the way to the Alfred Hospital.

Yesterday, the Deputy Coroner directed that an autopsy be performed on Mrs Rosenbaum. Mr Rosenbaum, as his wife’s senior next of kin,[1] has appealed from that direction. The appeal is brought under the Coroners Act2008 (Vic).[2]
[1]Coroners Act 2008 (Vic) s 3(a) definition of ‘senior next of kin’ means the person’s spouse if they had one immediately before death.
[2]Section 79.

In my opinion, for the reasons which follow, the appeal should be upheld. No autopsy should be conducted and Mrs Rosenbaum’s body should be released to her family as expeditiously as that can be done.

The purpose of an autopsy is to assist the Coroner to perform his functions in respect to the death.[3] The Coroner must direct a medical investigator to perform an autopsy if the Coroner believes that the autopsy is necessary for the investigation of the death and it is appropriate to give the direction.[4] The Coroner is required to take reasonable steps to notify the…

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 Rosenbaum v West

Details

AGLC: Rosenbaum v West [2014] VSC 583
Case: [2014] VSC 583
Decision Date: 15 August 2014 (revised 20 October 2014)

CaseChat Overview and Summary

Rosenbaum v West involved an appeal against the Coroner's decision to direct an autopsy on the body of the deceased, Mr Rosenbaum. The deceased, a 56-year-old man who was morbidly obese and had no documented medical history as he did not attend a doctor, died unexpectedly. The Coroner had ordered an autopsy to determine the cause of death, a decision contested by the deceased's family who were practising Orthodox Jews, for whom an autopsy is prohibited by their faith. The family's appeal focused on the Coroner's failure to consider whether an autopsy was necessary and appropriate under the circumstances.

The primary legal issue was whether the Coroner correctly exercised their discretion to order an autopsy under the Coroners Act 2008 (Vic). The appeal questioned if the Coroner adequately considered the circumstances, including the religious beliefs of the deceased and his family, the lack of evidence of suspicious circumstances surrounding the death, and the absence of a public interest that required the cause of death to be established. The family argued that the Coroner's direction was unreasonable given the lack of any compelling reason to override the religious prohibition against autopsy.

The Court found that the Coroner had not appropriately exercised their discretion. The deceased's death, at a relatively young age and with no known medical history, did not, by itself, necessitate an autopsy. Moreover, the post-mortem CT scans did not reveal any cause of death. The Court emphasised that the Coroner should have considered the religious objections and the absence of any suspicious circumstances or public interest in determining the cause of death. As a result, the Court allowed the appeal and quashed the Coroner’s direction for an autopsy. The Court determined that no autopsy should be performed on the deceased.

The final order of the Court was that the Coroner's direction for an autopsy was quashed, and no autopsy should be performed on the deceased. This decision underscores the importance of balancing statutory duties with respect for religious beliefs and the necessity of demonstrating a compelling reason for overriding such beliefs in the context of coronial investigations.

Orders