Triffitt v McTaggart

[2021] TASSC 26

[2021] TASSC 26

COURT:                  SUPREME COURT OF TASMANIA

CITATION:             Triffitt v McTaggart [2021] TASSC 26

PARTIES:  TRIFFITT, Keturah Matepi
  v
  McTAGGART, Olivia

FILE NO:  1360/2021
DELIVERED ON:  11 June 2021
DELIVERED AT:  Hobart
HEARING DATE:  11 June 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Coroners – Autopsy or post mortem – Application that autopsy not be performed – Religious beliefs – Foul play unable to be ruled out.

Coroners Act 1995 (Tas), s 36(3).
Aust Dig Magistrates [1369]

REPRESENTATION:

Counsel:
           Applicant:  In person
           Attorney-General:  G Chen
Solicitors:
           Attorney-General:  Solicitor-General

Judgment Number:  [2021] TASSC 26
Number of paragraphs:  17

Serial No 26/2021

File No 1360/2021

KETURAH MATEPI TRIFFITT v OLIVIA McTAGGART

REASONS FOR JUDGMENT  BLOW CJ

(Edited version of reasons given orally)  11 June 2021

1. This is an application for an order under s 38(3) of the Coroners Act 1995 for an autopsy not to be performed on the body of the late Stella Joan Fraser.

2. Ms Fraser lived alone at Ouse. She was 72 years old. It appears that she was last seen alive at the Lachlan Hotel at Ouse on Friday last, 4 June 2021, when she left the hotel sometime after 6pm having dined there.

3. She was reported missing by her daughter, Mrs Triffitt, on the evening of Monday 7 June.  Her body was reported found by a neighbour the next morning, Wednesday 8 June.  Her body was found in a river about 250 metres from her home. She appeared to have drowned.

4. Ms Fraser was a Christian. She held very strong beliefs about the sanctity of the human body, the resurrection of the dead, and life after death.  Because of her beliefs she would not have wanted an autopsy to have been conducted upon her body. Mrs Triffitt respects and shares her mother's beliefs.

5. In this State there is legislation that empowers a coroner to conduct an investigation into the death of any person whose death appears to have been unexpected or to have resulted from an accident. There are other circumstances in which inquests can be ordered. The starting point though is that s 19 of the Coroners Act requires a death to be reported to either the coroner or a police officer if the death appears to be unexpected or accidental, amongst other things.

6. A report was made to a coroner, Mrs McTaggart, who is the respondent to the application that is now before me. Under s 28 of the Coroners Act a coroner has a duty, if possible, to make findings as to how a reported death occurred and the cause of death.

7. Under s 36(1) of the Coroners Act if a coroner believes that an autopsy is necessary for the investigation of a death, and believes that reasonably, then the coroner may require the State Forensic Pathologist to perform an autopsy. The coroner decided that it was necessary for an autopsy to be performed, and Mrs Triffitt was notified in her capacity as the senior next of kin of her mother. She requested that the coroner not direct that an autopsy be performed but the coroner decided that the autopsy was necessary. Notice of that decision was given to Mrs Triffitt under s 38(1) of the Coroners Act.

8. Under s 38(3) she then had 48 hours to apply to this Court for an order that the autopsy was not to be performed. She made that application yesterday, and that application came before the Court this morning.

9. The coroner was represented by counsel this morning but subsequently maintained the position that she would abide by the decision of the Court. She was not represented this afternoon.

10. The Attorney-General intervened in the proceedings on behalf of the State and was represented by counsel this afternoon.  Counsel for the Attorney-General argued that this was a case where the autopsy should proceed.

11. I have to weigh up the deeply held religious beliefs of Ms Fraser and Mrs Triffitt on the one hand and the arguments that have been advanced on behalf of the State on the other hand.[1]

    [1]  The need to weigh religious or cultural beliefs against the interests of the State or the community in establishing a cause of death has been referred to in a number of cases: Evans v McKee (unreported, Pearce J, Supreme Court of Tasmania, 14 June 2019); Wuridjal v Northern Territory Coroner [2001] NTSC 99, 11 NTLR 202; Evans v Northern Territory Coroner [2011] NTSC 100, 214 A Crim R 444; Re Death of Simon Unchango (Jnr); ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65; Paterson v Coroner King [2019] WASC 25; Re Smith; Smith v State Coroner of Western Australia [2020] WASC 355; Green v Johnstone [1994] 2 VR 176; Traynor v Spooner [2012] VSC 651; Rosenbaum v West [2014] VSC 583.

12. Mrs Triffitt, like her mother, believes that the body is precious to God and should not be cut up.  She has pointed out that her mother never had surgery.  Like her mother, she believes that after death God will make her mother's body whole or perfect again.

13. On the other hand, the State argues that there is some possibility of foul play in this case and that an autopsy is reasonably necessary in order to see whether foul play can be ruled out.  Dr Ritchie, the State Forensic Pathologist, who gave evidence this afternoon, has explained that in this case, unlike some others, it is not possible without an autopsy to rule out the possibility that Ms Fraser was assaulted just before her death and that there was foul play.

14. Ms Fraser was elderly. She was vulnerable. She died in a public place. There is some suggestion that individuals who may have been involved were people who should not readily be trusted.

15. It is true that no-one stole the rings that Ms Fraser was wearing. No-one appears to have stolen anything from her home, which she left unlocked.  From what she was wearing there is no reason to suspect there was any sexual activity.  Foul play is highly unlikely but it cannot adequately be ruled out without an autopsy.  I think it is significant that, in the very unlikely event that there was foul play, not performing an autopsy could result in a risk that an offender might reoffend.

16. It is a very painful decision that I have decided to make because Mrs Triffitt has lost her mother in unusually distressing circumstances but, having considered her religious beliefs and her mother's wishes based on her religious beliefs and weighed those against the arguments advanced on behalf of the State, I have concluded that this is a case where an autopsy should proceed.

17. This morning I made an order that no autopsy was to be performed until further order. I discharge that order, and I dismiss the application.  In other words I am not going to make an order that there be no autopsy.  The autopsy will be able to proceed.