Appellants v Respondent

1 This is an appeal, under s 79(1) of the Coroners Act 2008 (Vic) ("the Act"), against a Coroner's direction to perform an autopsy on Sarah Michelle Traynor, a 7 year old girl.

2 On 21 November 2012 Sarah was found unconscious in the backyard of her family home. She was hanging from a skipping rope attached to a swing set. She was rushed to hospital where she later died. The police investigation concluded that Sarah's death was an accident. However, the respondent, the Coroner investigating Sarah's death, directed that an autopsy be performed on Sarah's body. The appellants, Sarah's parents, appeal against the Coroner's decision.

3 Under s 25 of the Act, a Coroner must direct an autopsy if he or she considers that 'the autopsy is necessary for the investigation of the death' and that 'it is appropriate to give the direction'. The Coroner's reasons in this case stated that the autopsy was 'necessary' in relation to the investigation of Sarah's death.

4 The position taken by the Coroner on the appeal was that the Coroner did not oppose the appeal. The Coroner informed the Court that she, in effect, took the position of a party suggested by the High Court in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman.[1]

5 For reasons that follow, I find that the Coroner failed to apply the correct statutory test which required her Honour to consider not only whether the autopsy was 'necessary' but also whether it was 'appropriate'. I also find that there was no evidence to support the Coroner's belief that the autopsy was 'necessary' in the particular circumstances of this case. I conclude that the autopsy should not be performed and that Sarah's body should be returned to her parents.

6 These proceedings have been instituted by way of an amended Notice of Appeal dated 29 November 2012 under s 79(1) of the Act, whereby the appellants Joseph Traynor and Michelle Joy Websdale bring an appeal against the determination by the Coroners Court of Victoria made on 23 November 2012 by her Honour Coroner Spooner and the Coroner's preceding Direction made on 22 November 2012.

7 No issue has been raised as to the standing of the appellants, the form of process in relation to, or the timing of, this appeal. The decision appealed against is the respondent Coroner's Determination dated 23 November 2012 that an autopsy upon the body of the deceased Sarah Michelle Traynor is necessary. The Determination dated 23 November 2012 is, in effect, the confirmation by the Coroner, pursuant to s 26(3) of the Act, of the Coroner's earlier Direction under s 25 of the Act, namely that an autopsy be performed. It is the Coroner's Direction dated 22 November 2012 (confirmed by the Coroner's Determination dated 23 November 2012) which the appellants seek to impugn.

8 The Act provides in s 79(1) that if the coroner gives a direction with or without conditions that an autopsy be performed, the senior next of kin may appeal to this Court against that direction and any conditions that may have been imposed.

9 Section 15 of the Act provides for the deaths which the coroner must investigate. The Coroner must investigate 'reportable deaths', defined by s 4 as including death which is unexpected or appears to have resulted directly or indirectly from an accident. The coroner's investigation is directed to the requirement of s 67 of the Act that the coroner must, if possible, make certain findings, including cause of death and usually the circumstances in which the death occurred.

10 Section 23 of the Act provides for preliminary examinations and authorises a number of procedures to assist the coroner in the performance of his or her functions in respect of a death.

11 Section 25, amongst other things, provides for the coroner to direct an autopsy, where necessary and appropriate, to assist the coroner to perform his or her functions. In this instance on 22 November 2012 the Coroner, pursuant to s 25 of the Act, issued a "Direction Regarding Autopsy" ("the Direction") directing the medical investigator to perform an autopsy and recording that such a Direction was given having taken into account information, including advice from a forensic pathologist that given the extremely unusual circumstances surrounding this incident an autopsy needed to be performed to investigate and provide cause of death.

12 Section 26(2) of the Act provides for the procedure to be followed where the senior next of kin desire to have the coroner reconsider the direction that an autopsy be performed. The appellants made their request in this regard on 22 November 2012 by email from Sarah's father, Joe Traynor (also on behalf of the mother, Michelle Joy Websdale), to the Coroner, in substance asking that no autopsy be performed on their deceased daughter.

13 Pursuant to s 26(3) of the Act, on 23 November 2012 the Coroner issued a "Determination by Coroner following Request for Autopsy Direction to be Reconsidered", that an autopsy was necessary for the investigation of the death ("the Determination"). The Coroner also ordered a full routine toxicology pursuant to s 25(3)(b) of the Act. The Determination provided the Coroner's reasons (set out below) as to why the Coroner believed that an autopsy was necessary.

14 I note that the Direction recorded that Sarah's senior next of kin preferred no autopsy and the Determination also recorded that the senior next of kin had raised specific concerns and objected to any "internal investigation".

15 Section 79(1) of the Act provides that the senior next of kin can appeal to the Supreme Court against a coroner's direction to perform an autopsy. Section 87(1) of the Act provides that an appeal to the Supreme Court under that part, which includes s 79(1) of the Act, is an appeal on a question of law. Section 87(4) provides, subject to s 88, that after hearing and determination of the appeal, this Court may make any order that it thinks appropriate.

16 Section 88(1) provides that if an appeal, including under s 79(1), is successful the Supreme Court must not remit the matter to the Coroners Court and must as appropriate determine whether, amongst other things, an autopsy should be performed. Pursuant to s 88(2) this Court is also empowered to make any other orders which it sees fit in respect of the matters specified in s 88(1) of the Act.

17 Both parties submitted that the Court has an unfettered discretion, if s 88 is engaged.

18 The appellants submit that the question of law to be determined on this appeal is whether in the circumstances it was reasonably open to the Coroner to determine that it was necessary and appropriate that an autopsy take place upon Sarah's body.

19 The grounds set forth in the appellants' amended Notice of Appeal dated 29 November 2012 are:

(1) That an autopsy on the body of the deceased is neither necessary nor appropriate in the circumstances.

(2) That in making the direction the Coroner failed to apply the correct statutory test under s 25(2) of the Act in that the Coroner did not have regard to the consideration of whether it was "appropriate" to give the autopsy direction.

(3) In making the direction the Coroner failed to take into account relevant considerations, namely the Coroner did not take into account or give appropriate weight to the external investigations and the absence of any indicia of foul play in reaching her decision.

(4) In making the direction the Coroner took into account irrelevant considerations namely by determining that an autopsy was necessary to ascertain whether there were any non-accidental injuries, in the absence of any indicia of foul play, the Coroner took into account irrelevant considerations.

(5) The decision of the Coroner to direct an autopsy was necessary and appropriate in the circumstances was not reasonably open to the Coroner because the police investigation and the CT Scan and MRI Scan have shown no indicia of criminal conduct and the external investigations including CT and MRI Scan provide sufficient information in the circumstances to ascertain cause of death, and the isolation of the precise medical cause of death would serve no purpose in the circumstances where the mechanism of death is known.

20 The materials before the Court establish the following in relation to Sarah's death.

21 Sarah was born 16 February 2005. On 21 November she had attended school and was collected by her mother, Michelle Websdale, arriving home at about 3.30 pm. After arriving home from school that afternoon Sarah played in the back yard, until about 4 pm including with her father Joe Traynor and the billy cart that her father had just made for her. At about 4 pm Mr Traynor went down the street after reporting to her mother that Sarah was still playing in the back yard.

22 At this time Ms Websdale was in the family home by herself, however about five minutes after Joe Traynor's departure she was visited in the family home by a friend. Shortly thereafter Mr Traynor returned to the family home with his sister and very soon after their return Mr Traynor and his sister proceeded into the back yard. On entering the back yard of the family home the father and his sister observed Sarah unconscious, hanging from a skipping rope which was attached to a swing set in the back yard. There was, however, no witness to this tragic incident as it occurred.

23 Mr Traynor removed Sarah from the skipping rope and called 000. An ambulance attended and Sarah was taken to the Bairnsdale Regional Hospital Services. Sarah died at the hospital.

24 Detective Sergeant Schulz of the East Gippsland CIU attended the scene of the family home on 21 November 2012, examined the scene and apparently conducted interviews. She concluded in her "Police Report of Death for the Coroner", dated 21 November 2012 ("the Police Report"), that it appeared that Sarah had put a skipping rope over the top bar of the swing set in her back yard and had tied a knot halfway down. Detective Sergeant Schulz also reported that Sarah had been located hanging with the front part of her head through the rope and her feet barely touching the ground. The Police Report also detailed that there were deep marks to the front of Sarah's neck extending halfway around the neck, which were consistent with how she was found.

25 Detective Sergeant Schulz concluded the Police Report by stating that:

At this stage the investigation is indicating that the deceased has been playing around and has died as a result of an accident.

26 The evidence filed by the appellants in this appeal included an affidavit of their solicitor, Benjamin Geoffrey Lloyd, sworn 28 November 2012. Mr Lloyd deposed to conversations with a person at the Initial Investigations Office of the State Coroner in which Mr Lloyd was told that CT and MRI scans had been performed on Sarah's body and there was nothing in either scan which led to the conclusion that anything was amiss, however the pathologist at the Coroner's Office had not been able to say with sufficient certainty what was the exact cause of death. Further, Mr Lloyd deposed that the person to whom he spoke at the Initial Investigations Office had told him that an autopsy had been ordered to address the absence of information confirming cause of death rather than to investigate further something that had been identified in the external examination.

27 Mr Lloyd deposed that, in a subsequent conversation , he asked the person what specific examinations were normally considered to verify the neck compression injury as the cause of death. He was told that once a determination had been made, a full autopsy would be conducted and the Coroner's reasons made it clear that the autopsy would be looking for non-accidental injury.

28 Mr Lloyd's also deposed to a conversation with Detective Sergeant Schulz in which she told him that, amongst other things, there was nothing in relation to the wider circumstances surrounding the case that made her believe that foul play may have been a factor in Sarah's death.

29 Further, Mr Lloyd deposed to a conversation with a specialist paediatrician who had been treating Sarah in relation to a mild form of autism which in the specialist's opinion had not been caused by Sarah's environment and which was progressing very well. The paediatrician had told Mr Lloyd that he held Sarah's parents, the appellants, in the highest possible regard.

30 In addition, Mr Lloyd deposed to a conversation with Sarah's general practitioner who said that he had no concerns about Sarah's parents and that, in his view, they had been wonderful to Sarah.

31 The Coroner did not object to Mr Lloyd's affidavit being admitted in evidence. Further, the Coroner did not lead any evidence to contradict Mr Lloyd's evidence, or indeed any other evidence filed by the appellants.

32 I note, however, that the Coroner pointed out during submissions that, contrary to Mr Lloyd's affidavit,[2] no MRI scan had been undertaken by the Coroner. This informal contradiction as to one detail of Mr Lloyd's affidavit is in my view immaterial to the substance of Mr Lloyd's evidence as outlined.

33 Mr Traynor and Ms Websdale, by affidavits both sworn and affirmed respectively on 28 November 2012, stated that they did not want an autopsy performed on Sarah's body and that the thought of Sarah's body being subject to an autopsy caused them great distress.

34 Mr Traynor states in his affidavit that he is horrified by, and to not able to bear the thought of, an autopsy being performed on his deceased daughter. Ms Websdale affirmed these matters and also deposed to just wanting her daughter back so that she could bury her.

35 The Coroner filed an affidavit of Sarah Elizabeth Gebert, solicitor, sworn 28 November 2012, which exhibited certain formal documents from the Coroner's file. However, apart from the Direction and the Determination (both exhibited to the Ms Gebert's affidavit), the Coroner did not file any evidence concerning the purpose and the likely utility and/or the benefit to the Coroner of performing the autopsy.

36 The statements in relation to Sarah's death by both Detective Sergeant Schulz and the appellants are therefore un-contradicted. There is no evidence to suggest foul play or suspicious circumstances in relation to the subject death.

37 Prior to addressing my findings I note that from the outset of the hearing the Coroner's counsel made clear that the Coroner did not oppose the present appeal. However, during argument counsel of the Coroner helpfully addressed submissions as to the operation of the Act and to clarifying certain matters.

38 However, by adopting the Hardiman position the Coroner may well have deprived the Court of helpful material which may have assisted the Court, particularly in the exercise of its discretion under s 88 of the Act. In Magdziarz v Heffey[3] McDonald J made similar observations in relation to proceeding under the Coroners Act 1985. In Hardiman the High Court noted, in relation to the Australian Broadcasting Tribunal, which was a party to that proceeding, that in the circumstances of that matter, such a tribunal should not normally present a substantive argument, but rather limit itself to submissions going to its powers and procedures. The position of a tribunal such as the Australian Broadcasting Tribunal in the Hardiman proceeding is not in my view analogous to the position of the coroner in respect of s 79 and s 88 of the Act. In appeals to this Court invoking those sections of the Act it will on occasion be entirely appropriate and desirable for the coroner to assist the Court by presenting material and argument defending the impugned decision.

39 Finally, I note that this appeal and this judgment are largely based on the particular facts and circumstances of this very sad case.

40 Section 25 of the Act empowers coroners to direct autopsies:

(1) The purpose of an autopsy is to assist a coroner to perform his or her function in respect of a death.

(2) A coroner must direct a medical investigator to perform an autopsy on a body under the control of the coroner if the coroner believes that -

(a) the autopsy is necessary for the investigation of the death; and

41 Sections 25 and s 67 of the Act indicate that an autopsy may be necessary to assist the Coroner to perform his or her functions, including making the required findings specified by s 67 of the Act.

... having taken into account the following information available to me at this time: Police report of death (Police Form 83); Statement of Identification; Preliminary Examination Report; advice from Dr Parsons that given the extremely unusual circumstances surrounding this incident an autopsy needs to be performed to investigate and provide cause of death.

43 In the Determination, the Coroner set out her reasons for the decision as follows:

I have again spoken to Dr Parsons, forensic pathologist from VIFM who has reiterated that whilst the cause of death appears (from external examination) to be neck compression, an autopsy is necessary to ensure there is no evidence of non accidental injury in such a young child who has died in extremely unusual circumstances.

44 The requirement of s 25(2)(a) that the Coroner form a belief that an autopsy is necessary for the investigation of the death gives rise to questions as to what is necessary in the circumstances, taking into account certain specific provisions of the Act, the scheme of Act and its purposes. The purposes of the Act are set out in s 1 of the Act and include provisions to allow coroners to investigate deaths. Sections 6, 7 and 8 of the Act set out its objectives and include objectives directed to expedite the investigation of deaths and to ensure that the functions exercised under the Act are undertaken having regard to considerations affecting family members, friends and others affected by the death. Section 25 provides for the power to direct autopsies to assist a coroner to perform his or her functions in respect of a death and s 67 requires that the coroner make certain specific findings, if possible.

45 Given the scheme, purposes and the above provisions of the Act, it appears that an autopsy will be necessary for investigation of a death where the cause of death is uncertain and/or the circumstances in which the death occurred are uncertain and in either or both of those cases an autopsy is likely to provide useful information to assist the coroner to reach a finding as to the cause and/or the circumstances of death.

46 Whether an autopsy is necessary for the investigation of a death it will also depend upon the extent to which other investigations by the coroner provide, or are likely to provide, relevant information to enable the coroner to perform his or her functions, including making the findings required by s 67 of the Act. I note in this regard that s 25(3)(b) of the Act empowers the coroner to direct the medical investigator to perform certain tests on the body or on tissue or other material removed from the body. In this case, the Coroner made a direction pursuant to this section on 22 November 2012 that full routine toxicology tests be undertaken.

47 In my view, the Coroner's reasons referred to above do not explain why it is necessary, in the circumstances of this matter, to perform an autopsy. Nor do they explain what useful information would be likely to be obtained from an autopsy to assist the Coroner's investigations and the making of the Coroner's findings. I again note that, apart from the Direction and the Determination themselves, no evidence was adduced to support the purpose and likely utility or benefit of performing an autopsy on the deceased in the circumstances, although there was opportunity to seek to adduce such evidence.

48 It is, of course, for the appellants to establish a relevant error or errors of law and the Coroner is under no obligation as such to adduce evidence justifying her beliefs with respect to the s 25(2) requirements, and the reason for those beliefs. However, where, in a matter such as this, the Coroner elects to give no evidence, or only scant evidence, upon the central issues as to the necessity and the appropriateness of an autopsy, it is potentially open for the Court to infer that there are no proper circumstances or reasons which would support, or tend to support, her Direction as a valid exercise of power pursuant to s 25(2) of the Act.[4]

49 Whether the Court can draw this inference will depend on all the circumstances of the matter under consideration. The Coroner is not required to detail as a matter of course the reasons why he or she believed that an autopsy was necessary and appropriate or otherwise.

50 The question of what is necessary and what is appropriate in the context of s 25 of the Act gives rise to the questions of statutory construction referred to above.[5] In my view, what is necessary and what is appropriate, in the circumstances, to assist the Coroner in his or her investigation of a death can be characterised as essentially a question of fact. The determination of questions of fact as to whether circumstances are such as to meet the statutory description in question is a matter for the person entrusted to form the belief required by the empowering statute. Where however the decision-maker arrives at a conclusion which is simply not open, that will constitute an error of law.[6] Accordingly, in an appeal under s 79 of the Act the appellant can challenge the coroner's finding that an autopsy was necessary (and/or appropriate) by showing that the finding was not open.

51 In considering the potential error of law in relation to the Coroner's exercise of power based on the belief that an autopsy is necessary for the investigation of the subject death, the question is whether the appellant has demonstrated, on the balance of probabilities, that there is no basis upon which the Coroner could have formed the requisite belief, namely that an autopsy was necessary in the circumstances.

52 The evidence is that Sarah died as a result of a neck compression caused by the pressure exerted on her body by the skipping rope around her neck. Accordingly, as the appellants submitted, the mechanism of death is known.

53 The material before the Court includes evidence that a CT Scan performed on the deceased has not shown anything suspicious. I infer this from the statement made by a person at the Initial Investigations Office of the State Coroner to Mr Lloyd,[7] namely, that the scan(s) did not lead to a conclusion that anything was amiss. I also again refer to the material establishing that the police investigation of Sarah's death has not given rise to a belief or a suspicion in the minds of the investigating police of any foul play in relation to this young child's death, and the Police Report concludes that the death was the result of an accident.

54 As highlighted above, Mr Lloyd's evidence included his report of a conversation with the initial Investigating Officer of the State Coroner during which that person informed Mr Lloyd that an autopsy had been ordered to address the absence of information confirming cause of death rather than to investigate further something that had been identified in an external examination.

55 I also note that the appellants have not objected to the taking of samples of blood, urine, saliva and mucus, and accordingly a number of bases for investigation, apart from autopsy, have been available to the Coroner in aid of her findings.

56 I am also of the view that, in the circumstances of this matter, the findings required of the Coroner in relation to a reportable death, set out in s 67(1), namely if possible, the identity of the deceased; the cause of death; unless excepted from doing so, the circumstances in which the death occurred; and any other prescribed particulars, appear to be findings which the Coroner is in a position to make without the results of an autopsy.

57 In all these circumstances, I am satisfied as to the existence of an error of law by the Coroner in that it was not open to the Coroner to find under s 25(2)(a) of the Act that it was necessary that an autopsy take place upon the deceased.

58 In summary, the requisite belief and direction were not open because, as recognised by the Coroner, the cause of death appeared to be as a result of neck compression, and further the relevant fatal episode was not attended by any suspicious circumstances. As the Coroner herself noted in the Determination, this conclusion was entirely consistent with the Police Report which detailed that there were deep marks to the front of Sarah's neck extending halfway around the neck, marks which were consistent with how Sarah was found suspended by a skipping rope, part of which had been placed over the top bar of a swing set. Furthermore, no information which would, assist the Coroner in her investigations or in respect of matters required to be found pursuant to s 67(1) of the Act, was identified as likely to be produced by an autopsy. Finally, the Coroner had available bases for investigation apart from an autopsy, as mentioned above.

59 Further, the Coroner's reasons justifying an autopsy in this case, namely, so as to ensure there is no evidence of non-accidental injury in such a young child who has died in extremely unusual circumstances, purports to identify reasons which are to do with the exclusion of an accidental injury in circumstances where all the surrounding evidence and circumstances point to an accidental death. The Coroner's justification for directing an autopsy on the basis of excluding a hypothetical scenario, which does not appear to be indicated by the evidence, or the circumstances, is consistent with the information provided to Mr Lloyd by the person he spoke to in the Initial Investigations Office of the State Coroner, namely to the effect that the autopsy was ordered to address the absence of information confirming cause of death rather than investigating further something that had been identified in the external examination. I again emphasise that the Coroner's Determination identified the cause of death as appearing to be as a result of neck compression and that there is no evidence or suggestion of foul play or suspicious circumstances.

60 Accordingly, on the evidence before the Court and in the circumstances thereby established I am satisfied that in this instance it was not open to the Coroner to come to the view that an autopsy was necessary for the investigation of the death pursuant to s 25(2)(a).

61 I am also satisfied that the Coroner did not turn her mind to whether it was "appropriate", as required by s 25(2)(b), to give a direction that an autopsy be performed. The provisions of s 25 require that the Coroner form a belief that not only is it "necessary" to direct an autopsy in the circumstances, it is also "appropriate" to do so. By such provision the legislature has clearly reflected its intent that although the Coroner believes an autopsy is necessary there must in each case also be consideration, resulting in the requisite belief, that an autopsy is appropriate. This added requirement calls into consideration a broad range of potentially relevant matters, including likely distress to the deceased next of kin and family, and likely distress and which may arise as a result of cultural, religious and spiritual beliefs, laws and practices, if an autopsy is carried out.[8]

62 I also note in relation to the scheme of the Act and considerations of what may be appropriate under s 25(2)(b) that s 8 sets out factors to be considered by any person exercising a function under the Act, namely insofar as is relevant, to have regard, as far as possible in the circumstances, to matters including that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support and that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death.

63 I infer from the Coroner's Direction and the associated reasons set out in the Determination, extracted above, that the Coroner failed to take into account the likely distress and anxiety an autopsy would cause to the deceased infant's parents as communicated, in substance, in the email from Mr Traynor dated 22 November 2012[9] and as detailed in the affidavits of the parents filed in this appeal. As earlier noted the Coroner's Direction and Determination both acknowledged the senior next of kin's objections to autopsy, however other than formally noting such concerns, and via the Determinations stating that they have been taken into account, there is no further mention, discussion or evaluation of those objections and the anguish and distress of the senior next of kin in the Coroner's Direction or Determination, or in the reasons stated in the Coroner's Determination.

64 I also infer that the Coroner did not form the necessary belief required by s 25(2)(b) of the Act, namely that the autopsy was "appropriate", because the Coroner's Determination, which sought to confirm the earlier Direction, does not reflect or record any consideration of whether it is appropriate to give the direction to perform an autopsy or the potential factors which may have informed such a consideration. The form of the Direction, on page one, included four optional tick boxes, which included the option to record that the Coroner had determined that an autopsy was necessary. However this proforma document did not provide a tick box to record the Coroner's belief that an autopsy was "appropriate", nor does the proforma prompt the Coroner to set out why the Coroner believes that a directed autopsy is appropriate.

65 Accordingly, I find a further error of law in relation to the Coroner's Direction and Determination, which both appear to be solely based on the Coroner's belief that the Direction subject to an autopsy is necessary, and which do not address or reflect the belief required by s 25(2)(b) of the Act, namely, that the direction for autopsy is also appropriate in the circumstances.

Exercise of the Court's powers and discretion under s 88 of the Act

66 On an error or errors of law being made out, the Court in this appeal is required to determine for itself 'whether an autopsy should be performed'.[10] This requires balancing competing interests, which are in essence the interests of the appellant parents in avoiding the distress of the autopsy and the public interest in ascertaining the cause of an otherwise unexplained death and/or reportable death and ensuring the proper and effective role and function of the Coroner and operation of the Act.

67 The interests of the appellants includes the emotional and like effects on them likely to be caused by the direction of an autopsy. I have earlier referred to the appellants' evidence of these matters including the horror at the prospect of an autopsy on the body of their seven year old daughter and Mr Traynor's evidence that he cannot bear the prospect of an autopsy on his daughter's body. In a less developed way Mr Traynor from the outset, communicated to the Coroner the express wish of both parents that no autopsy be conducted under any circumstances.

68 Mr Traynor's evidence in relation to those feelings, emotions and stresses has been affirmed by Ms Websdale. These matters were submitted by the appellants to be relevant to the Court's balancing exercise in identifying the proper expression of its discretion in this matter. The Coroner has at no time submitted to the contrary.

69 In the circumstances of the matter I am not persuaded that it is likely that any useful information will be obtained from an autopsy of the deceased. The Coroner, as mentioned, did not seek to put on evidence to establish any such probable utility. Further, in the circumstances of this matter and on the evidence before the Court the Coroner can make the requisite findings referred to and required by s 67(1) of the Act without carrying out an autopsy.

70 If there were any suspicious circumstances surrounding the death of the deceased I may well have taken the view that the public interest that the precise medical cause of death be further investigated and perhaps ascertained by way of autopsy outweighed the interests of and the effects on the appellants. However that is not the position on the evidence in this appeal.[11] All the evidence is to the effect that this young child died as a result of a tragic accident and that her death was caused by neck compression and no evidence was placed before the Court, other than the Coroner's reasons, extracted above, to establish what an autopsy would be likely to establish and why the establishment of such matters was necessary for the Coroner's investigation of the death.

71 Accordingly, in this case the interests of the appellant parents in relation to being spared the anguish and upset of an autopsy outweighs the public interest in a procedure being undertaken which is directed to ensuring that there is no evidence of non-accidental injury which is itself only at best the subject of conjecture, and the utility of which has not been established.

72 In the circumstances I uphold the appeal and determine that no autopsy be performed on the deceased Sarah Michelle Traynor. I also direct, pursuant to s 88 of the Act, that the body of Sarah Michelle Traynor be released by the Coroner to the appellants as soon as practicable.

73 The Court is not called upon to make any order as to costs and accordingly no cost order is made.

[1] [1980] HCA 13; (1980) 144 CLR 13, 35-36.

[3] [1995] VSC 201 [24].

[4] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 663-664 (Gibbs CJ).

[5] See [45]-[46].

[6] S v Crimes Compensation Tribunal [1998] 1 VR 83, 86-93; ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447, 463-464.

[7] See para 4(c) of Mr Lloyd's affidavit sworn 28 November 2012.

[8] Green v Johnstone [1995] 2 VLR 176, 179.

[9] Affidavit of Sarah Elizabeth Gebert sworn 28 November 2012, Exhibit "SEG 4".

[11] Green v Johnstone [1995] VICSC 34; [1995] 2 VR 176, 179.