Vickers v Attorney-General
[2023] NZHC 2713
•29 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2535
[2023] NZHC 2713
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
Of a decision of the Coroner
BETWEEN
ADRIENNE VICKERS
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 5 October 2022 Appearances:
Further
submissions and evidence received:D P H Jones KC and D Bullock for the Applicant K Laurenson for the Respondent
H M Carrad for the Coroner
5 December 2022
Judgment:
29 September 2023
JUDGMENT OF POWELL J
This judgment was delivered by me on 29 September 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules
…………………..
Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Counsel:
David P H Jones KC
ADRIENNE VICKERS v THE ATTORNEY-GENERAL [2023] NZHC 2713 [29 September 2023]
[1] On 14 April 2016 Henry Afakasi collapsed and died of natural causes. Mr Afakasi, a proud Samoan, was only 38 and left behind a partner, a young son and a grieving aiga (family). Unsurprisingly, when notified of Mr Afakasi’s death the aiga wanted to ensure Mr Afakasi was looked after in a manner consistent with fa’asamoa,1 and in particular “Vā Tapuia – Tapu (sacred) and Sā (protected) rituals… observed at the time of death through to burial”.
[2] The situation was, however, complicated as at the time of his death Mr Afakasi was an inmate at the Auckland South Corrections Facility (“the prison”), having been sentenced to 14 years’ imprisonment in late 2014 for serious drug offending. This meant that while Mr Afakasi’s body remained at the prison custody passed variously from the Department of Corrections/SERCO, to the Police, and then to the coroner, albeit with Police apparently continuing to make the decisions while Mr Afakasi’s body remained at the prison.
[3] As a result, in the period after Mr Afakasi’s collapse until his body was taken from the prison a number of incidents took place which from the point of view of the applicant, Mr Afakasi’s partner Adrienne Vickers, and other members of Mr Afakasi’s aiga, failed to adhere to Samoan cultural and religious practices. These were:
(a)Stripping Mr Afakasi’s body in the prison gymnasium.
(b)Not immediately informing Mr Afakasi’s immediate family members of his death.
(c)Placing Mr Afakasi’s body into a body bag, placing it on a gurney and taking it into the sally port garaging area of the prison.
(d)Not seeking the input of Ms Vickers about the decisions over how to treat Mr Afakasi’s body while it remained at the prison.
1 Defined by Betty Leuina Sio in evidence as a “code of living and culture — the Samoan way of life”.
(e)Presenting Mr Afakasi’s body to his immediate family including Ms Vickers, while it remained in a body bag, on the gurney in the sally port.
[4] As a result, Ms Vickers commenced these proceedings. She does not seek damages or costs. Rather Ms Vickers “hopes that the guidance the Court can give to the Crown as to how [sudden death] should be dealt with may prevent the same trauma being experienced by another family”. To that end, she simply seeks a declaration that the incidents were the result of a failure to consider the rights of Mr Afakasi and the aiga guaranteed by ss 13, 15 and 20 of the New Zealand Bill of Rights Act 1990 (“NZBORA”). These sections provide as follows:
13 Freedom of thought, conscience, and religion
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
15 Manifestation of religion and belief
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.
20 Rights of minorities
A person who belong to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.
[5] In support of Ms Vickers contentions, her counsel Mr Jones noted that the principal Police officer involved, Sergeant Grant Arrowsmith, acknowledged that he did not expressly consider ss 13, 15 and 20 of the NZBORA, nor did he consider whether a limit to any of the rights identified was justified.
[6] In response, Ms Laurenson for the Attorney-General, questioned whether any of the incidents of concern identified were the result of a reviewable decision. In any event Ms Laurenson submitted that it was not necessary for Sergeant Arrowsmith to consider the NZBORA specifically. Rather, she submitted in substance Sergeant Arrowsmith “gave as much effect to the relevant rights as was possible in the circumstances and… reached a rights-consistent outcome”. When looked at through
that lens, the submission of Ms Laurenson is that the rights of Mr Afakasi and his family under NZBORA were not breached and/or that any limits imposed on those rights were justified.
[7] In any event Ms Laurenson submitted there was no breach of s 13 of NZBORA as there was no action taken at any point that challenged the ability of Mr Afakasi, Ms Vickers or the aiga to think as they wished. Only where those views led the aiga to behave in a particular way did they face limits, and any such limitations are not related to s 13.
[8] With reference to s 15 Ms Laurenson submitted that this section prevents the state from interfering with religious practice but creates no positive obligation to facilitate any particular practice, and the right is in any event subject to reasonable limits. In this case Ms Laurenson accepted that s 20 was engaged in relation to both Mr Afakasi and the aiga but submitted that it was subject to reasonable limits. In Ms Laurenson’s submission:
To require Police to consult with family before making decisions about how to conduct a preliminary inspection of a body following a sudden death would be to significantly hamper Police actions. Similarly, to require specific cultural appropriate practices around the care of a body by the state is requiring more than an absence of interference with a cultural practice. Alternatively, the limits placed on the right were reasonable in the context of a sudden death in state care.
[9] Ms Laurenson went on to submit that there was no substantial interference with the neglect of Mr Afakasi and/or the aiga, but any such limits were in any event jurisdictional, submitting that the Police had acted “within the broad statutory powers conferred under ss 17, 19A and 25 of the Coroners Act 2006 (“Coroners Act”). In Ms Laurenson’s submission “[t]his satisfied the requirement of being prescribed by law, which is to ensure that if an action is not legally authorised it can never be justified”.
[10] It was therefore Ms Laurenson’s submission that “…Police, in co-ordinating the extraction of Mr Afakasi’s body, were exercising something more akin to an operational discretion under the Coroners Act and instructions”.
[11]On a “proportionality balance approach” it was submitted:
Police decisions were motivated by security concerns, practical constraints and what was considered necessary to do to discharge investigative obligations… [I]n the context of Police’s functions in assisting the Coroner, some limits on rights are plainly appropriate, and these particular rights were.
[12] Applying that proposition, Ms Laurenson submitted that each of the actions taken was appropriate in the circumstances, from the stripping of Mr Afakasi’s body to determine his death was not suspicious, to placing him in a body bag for hygiene reasons. Informing the aiga of Mr Afakasi’s death was “not an entirely straightforward process but [Sergeant Arrowsmith] did what he could to inform the family promptly”. As many members of the aiga as possible were given the opportunity to view Mr Afakasi’s body before it was taken to the mortuary, and that viewing was appropriately undertaken in the sally port for security reasons and allowed access for the hearse.
[13]Overall it was Ms Laurenson’s submission:
To place these limits on religious and cultural practice in the context of a sudden death in custody which could have been suspicious was, it is submitted, not unreasonable.
What happened?
[14] There is no real dispute over what occurred on 14 April 2016. Earlier that day Mr Afakasi had been exercising outside and had later entered the prison gymnasium. Mr Afakasi was talking to other inmates. Sometime after 1600 he dropped to one knee and then collapsed. CPR was administered, first by other inmates and later by prison staff and the prison medic. St John ambulance and Police were notified, and St John paramedics took over attempts to resuscitate Mr Afakasi when they arrived around 1630. Those attempts were unsuccessful and CPR was terminated by the paramedics at 1655. Following a final check at 1705 Mr Afakasi’s death was verified by the paramedics. There is no issue with the medical treatment received by Mr Afakasi.
[15] The first Police officer who appears to have arrived at the scene was Senior Sergeant Newton. It is not known when Senior Sergeant Newton arrived, but Senior Sergeant Newton notified the coroner of Mr Afakasi’s death at 1706. Shortly afterwards Sergeant Arrowsmith, accompanied by Constables Young and Talbot, also arrived in the prison gymnasium.
[16] In his statement Sergeant Arrowsmith described commencing the Police sudden death procedure as set out in the Police sudden death instructions then in force. There is no dispute Sergeant Arrowsmith, together with Senior Sergeant Newton, conducted a scene and body examination and this included stripping Mr Afakasi of his clothing while still on the floor of the gymnasium. Nothing of significance was noted, but photographs of the scene and of Mr Afakasi were taken for the record by Constable Talbot.
[17] Following the scene and body examination, Mr Afakasi was placed in a body bag. At 1740 a prison kaumatua and a Samoan cultural advisor gave prayers in both Te Reo and Samoan for Mr Afakasi.
[18] The on call undertaker arrived at around 1800 and prepared Mr Afakasi’s body for removal from the prison. To that end, around 1810, Mr Afakasi’s body was placed on a gurney to transport it to the hearse. The hearse was parked in what is called the sally port. For security reasons this was as far as the hearse could drive into the prison. As such it was the closest point from which direct access to the prison proper could be obtained.
[19] Sergeant Arrowsmith noted that as Mr Afakasi’s body was being taken to the hearse “prisoners started performing a haka from their cells for Mr Afakasi and we stopped to let them finish as a sign of respect and to let his fellow prisoners grieve for him before he left the prison for the last time”.
[20] While attending to Mr Afakasi’s body in the secure part of the prison Sergeant Arrowsmith had no access to his cell phone. Exiting the area Sergeant Arrowsmith retrieved his phone and obtained contact details for Mr Afakasi’s next of kin from prison staff. Sergeant Arrowsmith rang the phone number he had been given, that of Ms Vickers, and accounts vary as to what happened thereafter. It appears that by the time the call was made the family had already become aware that Mr Afakasi had suffered a medical event and they had travelled to Middlemore Hospital. According to Sergeant Arrowsmith, this led him to doubt whether he was speaking to the right family and he decided to check he had the right contact information before taking the next step. After confirming the number, Sergeant Arrowsmith made a
further call to Ms Vickers. At that point he told her that Mr Afakasi had passed away. After Ms Vickers passed the phone to one of Mr Afakasi’s brothers, Sergeant Arrowsmith “told him to come back to prison. He asked what was happening with the body but I told him we will explain in person”.
[21] It appears that members of Mr Afakasi’s family then arrived at the prison between 1850 and 1950. How many arrived is not known. Estimates vary between Ms Vickers who stated that there were no more than 14 to 17 family members attending, and Sergeant Arrowsmith who estimated that there were 30 to 40 people in total. Sergeant Arrowsmith met with the aiga in the prison visitor centre and briefed them on what he knew about the circumstances of Mr Afakasi’s death. According to Sergeant Arrowsmith:
I explained to Ms Vickers and Mr Afakasi’s brother that only a small core of people were allowed to view the body. I also had to consider what [prison management] would allow. In the end, we allowed a group of 11, a larger than normal group to view the body, in order to do what I could for the family. I didn’t ask the family where they would like to view the body as I consider the sally port was the only viable option.
Mr Afakasi’s body was still on a gurney in the sally port at this stage. He was in a body bag, for the hygiene reasons in the Instructions and the bag was zipped up to his chest so he didn’t appear naked to his family. We could not place the body in an area within the prison as it would jeopardise prison security to have members of the public there, however, the body also could not be taken out of the prison area as this would mean the body would need to go through the carpark and roadway, and open to the public. This would have been inappropriate and also creates a risk that a family member was opposed to the post-mortem could try and take the body. I didn’t have any particular reason to think this family would do that, but it is always a possibility.
I took Mr Afakasi’s family through the prison and into the sally port, and they had around 10-15 minutes to spend with the body. More time was given than normally would be allowed because I was conscious the earlier mix-up had made things even more difficult for the family.
At around 8.25 pm, Constable Talbot asked Mr Afakasi’s brother to sign the deceased person identification form and he did.
The undertaker left afterwards with Mr Afakasi’s body to the Auckland Mortuary. I don’t remember the family asking to go with the body but it is not my practice to allow a family member to go with the undertaker because a Police officer would need to go also to ensure safe custody of the body.
[22] In contrast to Sergeant Arrowsmith’s account, Ms Vickers commented with regard to the viewing of Mr Afakasi’s body:
Viewing Henry’s body for the first time in a body bag, lying on a gurney, in a garage/sally port was deeply distressing. I found it inexplicable and inexcusable that this is how we saw Henry – it was an especially horrible way for Henry’s children and I to see him and was culturally offensive.
[23] Ms Vickers could not understand why the fale at the prison or another small building next to the visitor centre where special events are often held could not have been used for the viewing. She also took issue with Sergeant Arrowsmith’s statement about the inappropriateness of having the viewing in public and challenged any suggestion that there may have been a risk of the Mr Afakasi’s body being taken by the aiga.
[24] The Police subsequently contacted the duty coroner with a range of documents confirming Mr Afakasi’s death. The duty coroner has confirmed that no directions were issued by the duty coroner between Senior Sergeant Newton’s phone notification of Mr Afakasi’s death at 1706 and the receipt of the formal notification of death documents at 0145 on 15 April 2016.
The relevant legal framework
[25] As noted at the outset of this judgment Ms Vickers and Mr Afakasi’s aiga take issue with a number of specific actions taken by Sergeant Arrowsmith following the death of Mr Afakasi.
[26] First, it is necessary to consider whether all or any of the actions taken by Sergeant Arrowsmith constituted reviewable decisions. Not all decisions are capable of judicial review. Those that are generally involve the exercise of a statutory power of decision. The Judicial Review Procedure Act 2016 provides a statutory procedure for the review of decisions of public statutory or incorporated bodies. Non-statutory powers may also be reviewed where the exercise of power “has a sufficiently public dimension”.2 But this case concerns the exercise of statutory powers in circumstances arising from a sudden death. In particular, who exercises power under the Coroners Act and when those powers can be exercised.
2 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 917–918.
[27] What constitutes a statutory power of decision is defined in s 4 of the Judicial Review Procedure Act as follows:
statutory power has the meaning given to it by section 5
statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting—
(a) the rights, powers, privileges, immunities, duties, or liabilities of any person; or
(b) the eligibility of any person to receive, or to continue to receive, a benefit or licence, whether that person is legally entitled to it or not.
[28] Throughout the relevant events on 14 April 2016 it is clear that Sergeant Arrowsmith saw himself acting in accordance with the Police’s sudden death instructions in force at that date. It is not contended that these instructions provided any independent power to Police officers like Sergeant Arrowsmith but rather simply appear to reflect a summary of Police obligations under the Coroners Act as it applied on the day Mr Afakasi died.
[29] Section 13(1)(j) of the Coroners Act then in force provided that when a prisoner has died in custody that death must be reported to Police pursuant to s 14(2) of the Act. In this case this occurred when Senior Sergeant Newton was informed by the paramedics that Mr Afakasi had died. At that point, pursuant to s 15(2) of the Coroners Act, Senior Sergeant Newton was required to report Mr Afakasi’s death immediately to the coroner. This is what occurred, the duty coroner noting that Senior Sergeant Newton’s notification was received at 1706, being about a minute after Mr Afakasi’s death had been formally verified by the paramedics.
[30] Up to the point at which Senior Sergeant Newton reported Mr Afakasi’s death to the duty coroner, the Police had the exclusive right to custody of Mr Afakasi’s body.3 As soon as the report was made to the duty coroner, however, the exclusive right to custody of Mr Afakasi’s body passed from the Police to the coroner and remained with the coroner pursuant to s 19(1)(b) until such time the coroner authorised the release of the body pursuant to s 42. This means that all subsequent decisions with
3 Coroners Act, s 18.
regard to Mr Afakasi’s body stood to be exercised by the coroner and not the Police. This included whether or not a post-mortem should be carried out, and significantly, directions about the removal of the body. The Coroners Act makes it clear that it is the coroner that is responsible for all directions about the removal of the body to a mortuary or morgue,4 decisions made with regard to recognising members of the deceased’s family as representatives5 and giving permission for the viewing, touching, or remaining with or near the body of the deceased if authorised to do so by the coroner in accordance with any conditions the coroner imposes.6
[31] Importantly in the context of this case there is nothing in the Coroners Act that permits the Police to act on the coroner’s behalf in relation to any of these functions in the absence of a specific direction from the coroner. The Coroners Act did not provide for any type of operational discretion of the type submitted by Ms Laurenson. This was in fact reflected in the Police sudden death instructions in force at the time which relevantly provided under the heading of “Removing and securing the body”:
Custody of the body
…
Once reported, the coroner has exclusive right to custody and will give Police directions about removal of the body for a post-mortem (ss 19 and 20).
The body is in the coroner’s custody until the coroner authorises its release.
Removing the body
For the purpose of a post-mortem of a body directed under the Coroners Act, a coroner may give any directions they think fit about removal of the body (e.g. directions about removal to a mortuary). (s20)
Note that a body must not be taken from the place of death to a mortuary via a funeral home unless such a direction has been given by a coroner under section 20.
Arranging removal by funeral directors
…If immediate family members are present, tell them you are taking the deceased to a place of safety until the coroner decides whether a post-mortem is required.
4 Section 20.
5 Section 22.
6 Section 25.
[32] In this case Coroner Greig, the duty coroner on 14/15 April 2016, confirmed following the hearing before me that she issued no directions following the notification of Mr Afakasi’s death at 1706 and the receipt of the formal written notification of death and supporting documents which was received at 0145 on 15 April 2016.
[33] As a result, as of April 2016, the only statutory role remaining for Police to undertake independent of any direction of a coroner, once the coroner was notified of Mr Afakasi’s death, was contained in s 17 of the Coroners Act which provided as at 14 April 2016:7
Investigations by police
(1)If a death has been reported to a coroner under section 15, the Commissioner of Police must cause to be made all investigations:
(a) necessary to help achieve the purpose of this Act in relation to the death; or
(b) directed by a designated coroner.
This section does not limit section 115
[34] As is apparent this provision is limited to investigations necessary to achieve the purpose of the Coroners Act. The purpose of the Coroners Act is set out in s 3 and provides that it “is to help to prevent deaths and to promote justice through… investigations, and the identification of the causes and circumstances, of sudden or unexplained deaths, or deaths in special circumstances”. Relevantly, s 4(2)(a) of the Coroners Act, in setting out the coroner’s role, requires a coroner to establish, so far as possible, the following:
(i)that a person has died; and
(ii)the person’s identity; and
(iii)when and where the person died; and
(iv)the causes of the death; and
the circumstances of the death
7 The section was subsequently amended to its current form on 21 July 2016.
[35] Section 17 as it applied at the time of Mr Afakasi’s death therefore provided a basis for the body and scene examination carried out by Sergeant Arrowsmith inside the prison in order to satisfy himself Mr Afakasi’s death was not suspicious. It is however difficult to see under what authority, statutory or otherwise, that Sergeant Arrowsmith was acting at the time he authorised the removal of the body to the mortuary and made arrangements for and authorised access to members of the aiga to view Mr Afakasi’s body.
[36] Contrary to Ms Laurenson’s submissions neither ss 19A or 25 of the Coroners Act could give authority for what occurred following the scene examination, as the version of the Coroners Act relied upon by Ms Laurenson in her submissions did not come into force until 21 July 2016, and were in any event not relevant.8 Instead, applying the law as it applied on the day of Mr Afakasi’s death, it is clear each of these actions clearly fell within the role and powers of the coroner.
[37] As a result, it follows the responsibility lay with the coroner to give directions to any Police present with regard to the removal of the body from the prison and the notification of the family.9 Such instructions could have been provided by the duty coroner at the time but there equally would be nothing to stop promulgation of standing directions to Police upon the notification of a death pursuant to s 15(2)(a) of the Coroners Act, specifying standard directions as to what the Chief Coroner expects following death in circumstances engaging the Coroners Act, noting that the requirement to notify deaths encompasses a number of diverse situations in addition to the death of a prisoner in custody as occurred in the present case. It is noted that in order to help achieve its purpose the Coroners Act recognises both:10
(i)The cultural and spiritual needs of the family of, and of others who were in close relationship to, a person who as died; and
8 For all intents and purposes the current wording of s 17 is the same as the version in force in April 2016. Section 19A, however, is a new provision making Police responsible for coordinating extraction of a body where the responsible coroner has an exclusive right to custody of a body and “the body is in a location from which it can be extracted only with extraordinary effort or the use of special resources”. It is difficult to see that this would have applied to the recovery of Mr Afakasi’s body from the prison. Section 25 envisages the coroner’s exclusive right to a body being exercised by another on behalf of the coroner but the section does not itself authorise the Police to arrange “viewing, touching, or remaining with or near the body in coroner’s custody”. Section 25 was also amended on 21 July 2016 but was not materially changed.
9 Coroners Act, s 23.
10 Section (2)(b).
(ii)The public good associated with the proper and timely understanding of the causes and circumstances of deaths.
[38] Relevantly it is noted that the Chief Coroner’s functions set out at s 7 of the Act include:
(l)to help to avoid unnecessary duplication and expedite investigation of deaths by liaison, and encouragement of coordination (for example, through development of protocols), with other investigating authorities and other official bodies or statutory officers:
(m)to help, by education, publicity, and liaison with the public, to promote understanding of, and cooperation with, the coronial system provided for by this Act:
(n)any other additional function conferred or imposed by the other enactment.
Discussion
[39] Having considered the evidence before me I am satisfied that there is no basis for concluding other than Sergeant Arrowsmith did his very best in the circumstances as he understood them to be which were invariably constrained by the prison environment he found himself working in. The security requirements in force at the prison, which were not challenged in the case before me, clearly imposed significant restrictions on the way in which Mr Afakasi’s body was dealt with after his death.
[40] Any analysis of the actions of the Police in this case, and in particular Sergeant Arrowsmith, must take into account that Sergeant Arrowsmith along with the rest of the Police officers present, and indeed the St John paramedics, were strangers to that prison environment and its particular management and security requirements. There is no suggestion in the evidence before me that Sergeant Arrowsmith had any authority to control who was present in the prison exercise area while he undertook his scene and body examination pursuant to s 17 of the Coroners Act.
[41] There was likewise no evidence that Sergeant Arrowsmith was aware of any other suitable location for presenting Mr Afakasi’s body to the aiga than the sally port, particularly when the constraint of different levels of security operating in different parts of the prison is taken into account. It is also clear that Sergeant Arrowsmith was
doing what he could to facilitate the earliest possible access for the aiga to Mr Afakasi’s body.
[42] It is also difficult to see on the evidence that Sergeant Arrowsmith could have personally advised the aiga any earlier about Mr Afakasi’s death. This was not a task required to be undertaken by the coroner, and the Police sudden death instructions make it clear it is a matter that Police assist the coroner by undertaking, noting that it is to be done both “as soon as possible” and “in person if possible”. At the same time there was nothing to stop Sergeant Arrowsmith from delegating the notification of Ms Vickers and the aiga to one of the other Police officers present at the prison, which may have both speeded up the notification process and avoided the awkward notification by telephone that ultimately ensued.
[43] With regard to the other actions taken by Sergeant Arrowsmith the Police sudden death instructions in force at the time Mr Afakasi died faithfully reflected the position under the Coroners Act. Those instructions recognised that it was the coroner and not the Police that was responsible for decisions relating to the removal of the body and arrangements for viewing, and that the Police had no authority to act in the absence of directions from the coroner. The fact the duty coroner did not issue any directions prior to the removal of Mr Afakasi’s body from the prison meant that Sergeant Arrowsmith did not have lawful authority to direct the removal of Mr Afakasi’s body from within the prison to the sally port for transportation to the mortuary, or indeed to take the steps that he did to arrange the viewing of the body by Mr Afakasi’s aiga.
[44] Given this position it is apparent with reference to the concerns identified by the aiga that Sergeant Arrowsmith should never have been placed in the position where he had to make those decisions on the night Mr Afakasi died. Instead, had Sergeant Arrowsmith followed the Police sudden death instructions in force at the time he would have been aware that it was necessary to obtain the direction of the coroner before moving Mr Afakasi’s body, removing Mr Afakasi from the prison and/or contacting the aiga and conducting a viewing of Mr Afakasi’s body.11
11 Coroners Act ss 19, 20, 23.
[45] To that extent it must follow, as Ms Laurenson submitted, that in the absence of lawful authority, there could be no justification for any restrictions placed by Sergeant Arrowsmith on the aiga’s practice of fa’asamoa and the right to enjoy the culture in the way Mr Afakasi was moved and viewed by the aiga as he was, in a body bag, in the sally port of the prison. It is however almost impossible to reach any conclusion as to whether ultimately the restrictions placed were in fact imposed by Sergeant Arrowsmith or were imposed as a result of the location, namely the fact the viewing occurred within the prison.
[46] It is difficult to speculate how matters might have proceeded had directions been given by the duty coroner, who in the absence of standard instructions would have been even less well-placed than Sergeant Arrowsmith to negotiate both the security constraints at the prison and the cultural expectations of the aiga.
[47] There was as noted however, nothing in the Coroners Act that would have precluded directions being given by the coroner to have ensured that Mr Afakasi’s body was set up appropriately for viewing in the prison visitor centre or otherwise at an appropriate area at the mortuary (if one exists), having first ensured prior to any viewing that Mr Afakasi was appropriately presented.
[48] Taking these various matters together it is clear that in this case there could and should have been considerably more guidance provided to those, like Sergeant Arrowsmith, who were purporting to carry out functions on behalf of a coroner.12 In the future a coordinated and practical approach, whether through standard directions provided by the Chief Coroner or otherwise, ought to have universal application so as to ensure that the cultural and spiritual needs of the deceased and their wider family, regardless of cultural background, are appropriately considered and provided for to the extent that circumstances allow. Such an approach would ensure that any family, whānau or aiga who find themselves in a similar position to Mr Afakasi’s are not dealt with in the type of ad-hoc fashion as occurred on 14 April 2016.
12 The Police sudden death instructions currently in force are broadly similar to those in force at the time of Mr Afakasi’s death but explicitly confirm it will be the coroner through its National Initial Investigation Office (NIIO) that is responsible for organising movement of a body as directed by the coroner.
[49] Given my conclusions I consider a specific declaration in relation to what occurred on the night of Mr Afakasi’s death is not necessary or appropriate. There is no order as to costs.
[50]A copy of this judgment is to be referred to the Chief Coroner.
Powell J
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