Horvath v State Coroner of Victoria [2004] VSC 452

8. The police were notified of the death and conducted investigations. They are satisfied that the death is not a suspicious death. Johnny was taken to the Royal Children's Hospital and examined by Dr Mike Starr who was the rostered paediatrician. Dr Starr examined Johnny's body and spoke to Johnny's parents. Dr Starr told Mr and Mrs Horvath that the most likely cause of death was SIDS or Sudden Infant Death Syndrome, and that he would like to see an autopsy performed to confirm his opinion. Naturally, Johnny's parents are deeply distressed as to the loss of their young son. They are also distressed at the prospect of Johnny's body being the subject of an autopsy. Mr John Horvath says that he and his wife are devout Catholics and it is their desire to be able to provide their son with a decent burial in an open coffin as quickly as possible. Johnny's death was reported to the Coroner. "Pursuant to the Coroner's Act 1985, an unexpected death is a reportable death. A Coroner has jurisdiction to investigate such a death. As part of that investigation if the Coroner reasonably believes that it is necessary for an investigation of a death, the Coroner may direct an appropriate person to perform an autopsy on the body."

11. In this case, the Deputy State Coroner formed the conclusion that an autopsy should be carried out. One factor that he referred to was the obligation of a Coroner under s.19(1)(c) "That a Coroner investigating a death must find, if possible, the cause of death."

14. No doubt this factor influenced the Coroner in directing an autopsy and subsequently rejecting a submission by the parents that no autopsy be carried out.

17. In written material provided to the court, the Coroner indicated that the question confronting him was whether or not the medical cause of death can be concluded without an autopsy. He said that if the medical cause of death cannot be concluded without an autopsy, then an autopsy is required to enable the conclusion.

20. He noted in his comments that Johnny's body had been externally examined in the mortuary and a Dr Lynch, a forensic pathologist, had been consulted. He noted that on externally examining the deceased, the pathologist could find no evidence on which to conclude the cause of death.

23. Mr and Mrs Horvath have now made application to the court requesting that the court exercise its power pursuant to s.29(4) of the Coroner's Act 1985. That provision enables the court to make an order that no autopsy be performed if it is satisfied that it is desirable in the circumstances. Such an application can only be made by a person defined in the Act as the "senior next of kin" which obviously includes the parents of a child.

26. An operation of s.29 was considered by Beach J. in Green v. Johnstone.[1] It is clear that pursuant to s.29(4) the court has an unfettered discretion.

29. In my opinion, it would be unlikely that the court would exercise that discretion so as to order that there be no autopsy, if there was suspicion surrounding the circumstances of the death. There is no such suspicion in this case.

32. Leaving that type of case to one side, the exercise of the discretion will usually involve a balancing of considerations. On the one hand, weight will usually be given to the rights or interests of the family of the deceased parents, particularly the parents of a young child. This may involve reference to their religious beliefs or simply their desires as parents.

35. On the other hand, it will be necessary to weigh in the balance the public interest in having an autopsy performed. That public interest will no doubt be satisfied if the carrying out of an autopsy is likely to produce valuable information that might save lives in the future.

38. In the present case, I am satisfied that Johnny's parents do not want an autopsy to be carried out because of the indignity that this will cause to Johnny's body and their desire to conduct a funeral which respects his interests and memory. I don't think that it is necessary to place great weight on the religious beliefs of

Mr and Mrs Horvath to reach the conclusion that they have a legitimate interest in not having an autopsy performed. They place greater emphasis upon their rights and interests as parents.

41. On the other hand, looking at the public interest, I am not satisfied that a great public interest is likely to be satisfied if an autopsy is carried out. Based upon the material, there is a prospect that an autopsy will not produce any evidence to confirm the cause of the death.

44. On the other hand, if it does produce evidence, for example, evidence of a congenital problem with Johnny's systems, apart from providing the certainty as to what actually caused his death, is difficult to see how that is going to inform the community in a way that will make deaths of this type less common.

47. In my opinion, the balancing process should be resolved by making an order that no autopsy be performed.

MR LITHGOW: I seek one additional order. It's just that the order can be signed by Your Honour and that's made pursuant to order 60 and what is usually done is that there is a further order that you direct that this order be drawn up by the solicitors for the plaintiff and signed by the Judge.

MR LITHGOW: We will have an order up to Your Honour's Associate as soon as possible.

56. I should just add one more thing actually in relation to costs. Having regard to the nature of the power in s.29 a decision by this court to order that no autopsy be performed, does not mean that the Coroner was wrong in concluding that there should be an autopsy. Rather it means that this court has taken a different view of the matter.

59. It is possible for two persons charged with exercising public powers to consider the same question and reach a different view about it, yet both do so in good faith and without being wrong in any sense that that word carries with it, given that my inclination was that there should be no order as to costs.

62. However, I was informed that the costs of bringing this proceeding were some $900 in filing fees and no doubt thousands of dollars in legal fees and it does seem to me unjust that that amount of costs faces parents, especially at a time like this, in order to have this issue resolved at the highest level.

65. I am making an order that the Coroner pay those costs. I think the injustice to the parents is mitigated. I fear that it does create some element of injustice to the Coroner, but on balance, I am satisfied that that lack of justice to the Coroner is necessary in order to achieve a just outcome for the parents.

[1] [1995] VICSC 34; (1995) 2 V.R. 176.