Baker v State of Queensland

[2] Ms Patteson is represented on this application by Ms McMillan QC. Mr Parrott, who has considerable experience in this area, appears as amicus curiae and Mr Munro, who represents Mr Deane's family but, in particular, Mr Deane's parents, appears by telephone.

[3] Mr Parrott does not oppose the making of the orders sought and has very properly drawn to the court's attention the doubts previously expressed as to whether the court may ultimately entertain an application such as this. See: Re Gray [2001] 1 Qd R 35; Baker v State of Queensland [2003] QSC 2.

[4] However, in Re Denman [2004] 2 Qd R 595, Atkinson J permitted the removal of tissue, on an interim basis, pending an application to use the tissue. In other words, the orders made by her Honour in Re Denman allowed an extraction, but on terms that required the applicant to come back to the court before any use was made of what was extracted. That approach has been followed in several subsequent decisions of this court (see, for example, KFJ v Attorney-General for Queensland [2008] QSC 325) as well as in other Australian jurisdictions.

[5] Following the same approach, the question for me is whether the testes and any spermatozoa should be allowed to be removed from Mr Deane's body in order to determine its future use. That is a question that must be determined quickly for the reason that, to be viable, the sperm and/or testes must be removed and processed within 24 hours of death.

[6] The affidavit material before me establishes that Ms Patteson first met Mr Deane in August 2015. They commenced a relationship on 7 September 2015. Shortly thereafter, Mr Deane was diagnosed with a serious and rare form of blood disease. There is evidence that he was unable to work in consequence and that Ms Patteson cared for him. By then, Mr Deane had moved in with Ms Patteson and Centrelink was advised that they were in a de facto relationship. Then, on 9 October 2015, Mr Deane and Ms Patteson became engaged to be married. They hoped to do so in the middle of this year and had made some plans to that end.

[7] The evidence before me from Ms Patteson and a number of other persons who have sworn affidavits establishes that both Mr Deane and Ms Patteson were very anxious to have a child together. They started "trying for a child" earlier this year. Indeed, it was their dream to start a family and buy a house. At one point, Ms Patteson thought she was pregnant and she and Mr Deane were "ecstatic", but when it was discovered that this was not the case they "continued to keep trying". They made no secret of their attempts to conceive a child. It was common knowledge among friends and family alike.

[8] Very sadly, on Monday, 18 April 2016, Mr Deane made an attempt on his life. Shortly afterwards, he was discovered by Ms Patteson, who called the ambulance. He was transported to the Toowoomba Base Hospital, but was found to be brain dead. His life support machine, as I have already mentioned, was switched off at 11.30 pm last night.

[9] The circumstances of his death are such that it is a reportable death under s 24 of the Transplantation and Anatomy Act 1979. By s 24(4):

A coroner may give a direction, either before or after the death of a person to whom this section applies, that his or her consent to the removal of tissue from the body of the person after the death of the person is not required and, in that event, subsections (2) and (3) do not apply to or in relation to the removal of tissue from the body of the person.

[10] As was the case in Re Floyd [2011] QSC 218, no direction under that Act has been given by the Coroner. However, the evidence confirms that the Coroner will abide the order of this Court. As such, if I make an order in the terms proposed allowing for the removal of the testes and any spermatozoa from Mr Deane's body, the Coroner will abide that order.

[11] For the reasons largely expressed in argument with Ms McMillan and Mr Parrott, I am firmly of the view that the approach taken by Atkinson J in Re Denman should be followed in this case and that the balance of convenience is strongly in favour of the orders sought.

[12] Those orders will, to use the language of the Senior Judge Administrator in KJR v Attorney-General for Queensland [2008] QSC 325, permit mature reflection by Ms Patteson whether to proceed with the use of any extracted material and, if an application for use for the purposes of fertilisation is made, the orders proposed today will ensure that such an application will not be rendered futile through loss of viability of the sperm if it should be held that there is power to grant such relief.

[13] It should be apparent from what I have said that, to the extent that doubt remains about the jurisdiction of this Court to make an order for the use of the sperm, that is an argument that can be had if and when such an application for use is advanced on behalf of Ms Patteson.

[14] Orders as per the draft, initialled by me and placed with the papers.