Saunders v State Coroner of Victoria

[2005] VSC 460

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9346 of 2005

CRAIG ANTHONY SAUNDERS	Plaintiff
v
STATE CORONER OF VICTORIA	Defendant

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2005
DATE OF JUDGMENT:	18 November 2005
CASE MAY BE CITED AS:	Saunders v State Coroner of Victoria
MEDIUM NEUTRAL CITATION:	[2005] VSC 460

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

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Gray	Blake Dawson Waldron
The Defendant did not appear

HIS HONOUR:

1. This is an application for an order pursuant to s.29(4) of the Coroners Act 1985 that no autopsy be performed upon the body of Waylan Anthony Saunders, who was a few days over nine weeks of age when he died on 9 November 2005. The applicant is his father Craig Anthony Saunders. The Coroner is the respondent to the application. The Coroners Act provides in s.29(4) that the Supreme Court may order that no autopsy be performed if it is satisfied that it is desirable to so order in the circumstances.

1. The Coroner has opted not to appear and address submissions whether for or in opposition to the application. I have been provided with a letter from the Coroner's clerk dated 16 November 2005 to the solicitors for Mr Saunders, confirming that “the State Coroner's Office will not be taking an active role against [the] application … pursuant to s.29(4)”.

1. The circumstances in which this application arises are set out in an affidavit sworn by Mr Saunders, and in exhibits to that affidavit.  Mr Saunders is aged 20.  Waylan’s mother, Sue Kelly, is aged 16.  Waylan was born on 2 September this year and was living with his parents in Collingwood until 9 November last when he passed away.  He was found in his cot at around 8.40 a.m. on that day, not breathing and being unresponsive. 

1. Waylan's mother called an ambulance from whence he was taken to the Royal Children's Hospital where attempts were made to resuscitate him including by CPR but they were not successful and by 9.53 a.m. they were terminated.  That process in itself would have been a most distressing experience for Waylan’s parents who, from the reports exhibited, were present or certainly his mother was present, as I understand it.  The last time that Sue saw Waylan alive was when she fed him in the early hours of the morning on 9 November when he was fine.

1. The death having occurred in such circumstances, the Coroner was correctly informed.  He was requested by Mr Saunders not to have an autopsy undertaken, but the Coroner, on obtaining reports concerning the matter and speaking to a forensic pathologist, Dr Bourke, determined that an autopsy be conducted.

1. The pathologist, according to the letter from the Coroner to Mr Saunders dated 12 November, had taken X-rays of Waylan and advised that he was unable to exclude a number of possible causes of death, stating in particular that an autopsy was essential to be able to advise the Coroner whether or not the cause of death was Sudden Infant Death Syndrome, as that diagnosis required the exclusion of other possible causes of death.

1. The Coroner having made that decision and communicated it, the option open to Mr Saunders, which has been taken, is that of applying to the court for an order that no autopsy be performed.

1. I turn then to the reasons why the application is made, that is to say the reasons why it should be ordered that no autopsy be performed. 

1. In the first instance it is to be noted, as stated by Mr Saunders in his affidavit, that the police report does not suggest suspicious circumstances relating to Waylan's death.  The hospital and pathology report and the pathologist's report notes no evidence of bruising or trauma or any other external manifestation to Waylan's body that might indicate a cause of death. 

1. It may be thought that the cause of death was what is known as Sudden Infant Death Syndrome.  Indeed Mr Saunders states that he and Sue have accepted that as the provisional cause of death and do not need an autopsy to confirm that in their minds.  To perform an autopsy would only compound their grief and distress.  All that is understandable although what is said as to the cause of death is speculative and it would be wrong of me to engage in speculation as to the cause of death.  The pathologist who reported to the Coroner correctly stated that without an autopsy one really could not say that the cause of death was Sudden Infant Death Syndrome.

1. I do not mean by that to say anything that might be distressing to Waylan's parents, but to merely indicate that a judge can only express conclusions that are based on actual evidence.

1. Mr Saunders referred to further reasons why there should be no autopsy.  These reasons are concerned with the aboriginal descent of Waylan's mother and the view of Waylan’s parents as to the sanctity of the human body and what happens to the body after a person dies.  Sue is of aboriginal descent.  Her family are from the Barkengi people from around the Darling River in Wentworth and she and her grandmother share strong family bonds, her grandmother being an elder in her community.

1. Mr Saunders is not of aboriginal descent, but deposes in his affidavit to being aware that aboriginal culture is fundamental to the attitudes and lifestyle of Sue and her family.  He states further that it is desired and intended that aspects of Waylan's funeral be conducted in a traditional way, which will involve an aboriginal service with some traditional aspects.

1. Furthermore there is the belief that to have an autopsy with the associated effects upon the body is contrary to the cultures and beliefs of the aboriginal people.  Sue’s grandmother has said that if Waylan’s body is cut up in the course of an autopsy his spirit will be unable to find peace and come to rest.

1. Mr Saunders further states that Sue and her grandmother have told him that an autopsy would damage not merely Waylan’s body but the cultures and beliefs of their people.  He said that it would be contrary to the cultural and religious practices of Sue and Waylan’s people if Waylan’s body were to be mutilated by an autopsy.  He requested that aboriginal custom and the wishes of Sue and himself and their families be respected.

1. I accept the evidence as to the effect of an autopsy in aboriginal culture and upon people of that descent, that it would cause a particular trauma and only exacerbate the grief that is being suffered by Waylan’s parents and loved ones in the family and members of the associated community.

1. I am satisfied that, balancing the interests of the parents of Waylan and the community interest, it is appropriate to order that no autopsy be performed. 

1. I should say, in referring to the balancing of interests, that it is evident enough that that is the exercise that is involved in these applications and it was so recognised by Beach J in Green v. Johnstone[1], where his Honour was similarly concerned with the sudden death of an infant of aboriginal descent.  I refer also to the more recent decision of Morris J in Horvath v. State Coroner of Victoria[2].  The public interest is an obvious interest to take into account.  It is always a matter of concern when a person dies, however old, in circumstances where the cause of death is not able to be certified by a medical practitioner.  In concluding as I have, I have taken that public interest into account and balanced it with the interest of the parents of Waylan, others in the family and the wider aboriginal community. 

   [1][1995] 2 VR 176.

   [2][2004] VSC 452.

1. For these reasons there will be orders as follows:

(1)       The requirements of Rule 5.03(1) and 8.02 be dispensed with.

(2)Pursuant to s.29(4) of the Coroners Act 1985, no autopsy be performed upon the body of Waylan Anthony Saunders.