[1995] 2 VR 176
GREEN v JOHNSTONE
SUPREME COURT OF VICTORIA
BEACH J
22 February 1995
Aborigines — Coroners — Autopsy — Application for an order that no autopsy be
performed — Court's discretion — Relevance of Aboriginal cultural and
religious law Coroners Act 1985 (No 10257) s29.
.
The plaintiff was an Aboriginal. His child died suddenly when only 10 days
old. There were no signs of violence or other suspicious circumstances. The
police report concluded that the death was possibly due to Sudden Infant
Death Syndrome. The coroner decided that an autopsy was necessary to
determine the cause of death and gave notice of this decision to the
plaintiff, as the next of kin, pursuant to s29(1) of the Coroners Act 1985.
The plaintiff applied to the Supreme Court under s29(3) of the Act for an
order under s29(4) that no autopsy be performed on the grounds that
Aboriginal cultural and religious law prohibited the mutilation of a body.
HELD: (1) The court had an unfettered discretion under s29(4) of the Coroners
Act. In exercising that discretion it must balance the interests of the
child's parents in being permitted to follow and maintain their Aboriginal
culture and law against the interests of the community to ascertain the cause
of an otherwise unexplained death.
(2) Great weight should be given to the cultural and spiritual laws and
practices of the various groups forming our society and great care should be
taken to ensure that their laws and practices, if otherwise lawful, are not
disregarded or abused.
(3) In the absence of suspicious circumstances, all available evidence
suggesting that the child died of natural causes, and probably from Sudden
Infant Death Syndrome, the rights of the parents to be spared further grief
outweighed the interests of the community to ascertain the actual cause of
death. Accordingly, an order should be made under s29(4).
Bendet v State Coroner(unreported, Cummins J, 22 August 1989) followed.
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[1995] 2 VR 176
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