KRANTZ v HAND

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No. 10948/99 WOOD CJ at CL FRIDAY 23 APRIL 1999 IAN KRANTZ v MAGISTRATE DERRICK HAND, STATE CORONER JUDGMENT 1 WOOD CJ at CL: The plaintiff seeks an order that a post mortem examination upon the body of Priscilla, known as Sylvia Krantz, hereinafter referred to as the deceased, be limited to: (a) An external examination;

(c) Radiological examination. 2 The proceedings have been brought by the plaintiff in his capacity as senior next of kin of the deceased. They are based upon the circumstance, which is not in issue, that the deceased came from a family of traditional Jews who are observers of the Jewish deity of laws. 3 Rabbi Raymond Apple has sworn an affidavit in the proceedings in which he gave the following explanation as to the significance of those beliefs: "The precepts of Halachah (meaning the whole body of ethico-legal principles which govern all aspects of Jewish life) prescribe an intricate set of rules and regulations which govern our treatment of the dead, beginning with the moment of death and continuing through the preparation for burial, the actual burial ceremony itself, the erection of tombstones and monuments, the care and maintenance of graves and cemetery areas as a whole, and so on. Moreover, it is the firm belief of Orthodox Jews that reverence for the dead, as expressed through scrupulous adherence to our religious teaching in all the areas mentioned above, is of paramount importance to us, to the extent that it is regarded as a 'sacred duty'. Some indication of the significance attached to these practices may be seen from the fact that even Jews who are not religiously observant during their lifetimes insist on being buried in strict conformity with Jewish laws, customs and usages. These principles and practices which relate to our treatment of the dead emanate from beliefs that are central to our values, customs, traditions and practices extending over many hundreds of years in Jewish communities throughout the world. Among the foremost of the precepts concerning reverence for the dead is one which is of particular importance in the context of the present Application. Put simply, according to Jewish religion, an autopsy is an action of desecration, and as such is inimical to our deepest principles and feelings." 4 The plaintiff has said that it would be a matter of anguish, both by reason of his mother's beliefs and his own beliefs, if her remains were to be dissected for a post mortem examination. He has invited the Coroner to conduct an alternative non-intrusive examination and for that purpose has offered to bear any additional costs associated therewith. 5 Against that background I turn to the facts that have led the Coroner to seek a post mortem examination in this case. During the afternoon of 16 April 1999, the plaintiff attended the flat of his mother at Bellevue Hill where she lived by herself. When he let himself in he found her lying in the bath naked and obviously deceased. There were no signs of forced entry that he could see and nothing appeared to be out of order in the flat. There were also no signs of any missing property. Police and ambulance officers subsequently came to the flat and confirmed the death. 6 A report was prepared by Constable Fitzgerald for the Coroner which showed that the deceased was last seen alive at 11am on 14 April 1999 and that there were no suspicious circumstances so far as investigating police were concerned. The attached summary provided to the Coroner recorded the following: "Narrative of circumstances under which death took place. About 4.10pm on Friday 15 April 1999, Ian KRANTZ attended his mother's address at 4/109 New South Head Road, Vaucluse. Ian KRANTZ had been trying to contact her via telephone throughout the day but was unable to do so. He found the deceased lying naked in the bathtub of her house. There was no water in the bath and the plug was not in the drain. Ambulance and police were contacted and attended. The deceased was lying on her back in the bath. There was an amount of blood smeared on both walls of the bathtub. Detectives attended and crime scene officers. After examining the deceased it was found that she had a cut on the back of her left calf and a bruise on the palm of her left hand. There was no other sign of physical injury. After speaking with Ian KRANTZ it was found that the deceased had no known medical problems. However KRANTZ stated that in the past month he and his wife had noticed the deceased health deteriorating dramatically. He stated that she was having difficulties breathing and would become 'giddy' and dizzy when she walked around. The deceased does not have a treating doctor and it is believed that she hadn't seen a doctor for up to three years. The deceased had not been taking any prescribed medication. THE DECEASED IS OF JEWISH RELIGION AND IT HAS BEEN REQUESTED THAT NO AUTOPSY BE CARRIED OUT ON HER BODY. IAN KRANTZ INDICATED TO POLICE THAT AN INJUNCTION WOULD BE TAKEN OUT THROUGH HIS BARRISTER TO PREVENT AN AUTOPSY TAKING PLACE." 7 The report of the Crime Scene Unit is somewhat more comprehensive. It recorded, in summary, the following: "CIRCUMSTANCES: Elderly female resided at premises alone, has refused to see a Doctor and therefore medical history is unknown. Last seen alive by neighbour 11am 14/4/99. Found by son who attended unit 4.10pm 16/4/99 used spare keys to gain entry, found his mother deceased in bath, CDA and GD's attended about 5.00pm, victim not moved. Son went into wardrobe in main bedroom and took out small suitcase which was supposed to contain jewellery but was not there. PREMISES/SCENE: 2 bedroom unit located on ground floor east side of unit block. Windows located in north south and east walls with two doors located in west wall, one door to common hallway other door to outside of premises. Nil sign of forced entry. Window in kitchen slightly ajar with flyscreen still on, did not appear window sill had been disturbed. All other windows locked and secured. Premises generally neat but old person's home with old carpet dirty walls thick dust on curtains, cobwebs in 2nd bedroom etc. Handbag containing purse with small amount of money located in main bedroom on chair, TV's in lounge and main bedroom, antique silverware in cabinet in loungeroom. Victim located in bath in bathroom. Blood smears along rim of bath, no other blood located in any other room or on floor, nil blood slash-smears only. Dressing gown located on floor in bathroom with blood stains to inside around rectum area. VICTIM: Lying naked on back in north south direction, head to north, upper arms beside torso with forearms and hands across pelvis, legs flexed at hip upwards and to the east tightly flexed at knees with both feet flat with right foot on top of left foot near plug hole. (plug on bath sill, nil water in bath). Numerous healing wounds to forearms and lower legs with skin on lower legs scaly, rigor fully established, lividity fixed and consistent with body position, nil defence wounds to hands, nil trauma to torso/head, large recent wound to left calf, ant activity around blood smears and wound, nil PET." 8 A notice requesting the Coroner not to direct a post mortem examination was served upon him in accordance with section 48(1) of the Coroners Act. 9 The plaintiff has said that his mother was not accustomed to seeing a medical practitioner. She was 86 years old at the time of her death. About six weeks prior to her death she had reported to the plaintiff that she had fallen over in her flat. Abrasions to her leg and arm were then noticeable. Thereafter the plaintiff said her health began to deteriorate. She appeared less active and reported feeling giddy. She asked the plaintiff's wife to prepare the children for her death. 10 The plaintiff's wife stated that over the past year she had been informed by the deceased that she was on occasions short of breath. A few days before her death the deceased had said that she could not get to the nearby post office by herself because she was finding that she was running out of breath. She added that recently the owner of the nearby fruit shop had, for that reason, offered to assist her home. 11 Notes of the social worker attached to the Berger Centre, from 13 March up to the time of death recorded concerns about the health of the deceased. On 18 March one such note records the obvious difficulty that the deceased had in walking. The impression recorded was that overall she appeared to be frailer than in recent times. Over the days preceding her death attempts were being made for greater assistance to be provided for her in the home. 12 It is conceded that the death of the deceased was sudden and that she had not seen a doctor for a period in excess of three months before her death. It was also said that a number of possible natural causes could have accounted for the death of a person of her age. 13 A report from Dr Eisenberg was tendered in the plaintiff's case. He expressed an opinion that with a history of exertional breathlessness, and sudden death, in a person aged 86 years, it was highly probable that she died of coronary heart disease. Dr Eisenberg, as it was noted, was not her treating medical practitioner and did not have the advantage of seeing the remains of the deceased. 14 Following the matter coming before me to court yesterday arrangements were made for a preliminary examination of the deceased of a non-intrusive kind. This was conducted by Dr Kala and by Dr Lewin. Dr Kala, is a staff forensic pathologist with the New South Wales Institute of Forensic Medicine. He had been directed by the Coroner to conduct a post mortem examination. Dr. Lewin was nominated by the plaintiff to assist. 15 Their examination revealed that the deceased had a number of bruises and abrasions to her body the age of which could not be determined with certainty, a superficial laceration on the dorsal aspect of her right hand, a V-shaped laceration on the right lateral anterior lower leg 20mm in diameter, and a V-shaped laceration measuring approximately 180mm in length by 50mm maximum width on the posterior left anterior lower leg. Flattening of the skin was present at the outer margin of this laceration and the base of the wound was haemorrhagic fatty tissue. The wound did not penetrate to the deeper tissue. 16 In Dr Lewin's report he noted that there was no bruising over the skull base and that generalised age-related skin atrophy was present. While unable to come to any positive conclusion as to the cause of death from this examination, he said that the absence of a defensive pattern of skin markings, or effective penetrating injuries, led him to conclude that a violent third party contribution to the deceased's demise was unlikely. The pattern of bruising, he said, appeared to be more consistent with the stated history of multiple falls. 17 In a document prepared for these proceedings Dr Kala noted that there are numerous possible causes of giddy and dizzy spells in the aged, that they need not be confined to vascular disease affecting the brain, and that they would not necessarily be revealed by CAT scan. The possible natural causes of death, i.e. excluding foul play, that might have been present, he said included cardio-vascular disorder such as myocardial infarct, valvular heart disease, hypertension, ulceration or bleeding or malignancy in the stomach, occult malignancy in any other organ or tissue, haemoglobular disorder, for example undiagnosed leukemia, and intoxication with drugs or poisons. 18 In his evidence today Dr Kala, while unable to be sure about the manner or cause of death, thought that the latter was probably a combination of the injuries observed and unknown natural causes. Of the injuries, he thought that the laceration to the lower left leg was likely to have been the most significant. Although it is now impossible, by any form of investigation, to determine the precise extent of blood loss, the quantity of blood seen in the bath was estimated to be in the order of less than 50 ml. 19 Clearly that injury to the leg was sustained before death. From the absence of any signs of blood loss elsewhere in the flat it may well be that it was sustained in the bathroom and within a short time before death. 20 In an 86 year old he recognised that of the natural causes which may have brought about or contributed to death, the most likely ones were cardiac disease, vascular disease, high blood pressure or kidney failure. He said however, that from an external examination it was not possible to determine the precise cause or manner of death. 21 If an internal examination of organs and tissues were undertaken it may be that natural disease processes would be observed. In particular, examination of the coronary arteries or the kidneys for signs of high blood pressure or blood loss may point to one or other of the postulated natural causes. So far as strangulation is concerned, Dr Kala said that there were no obvious signs of strangulation. Indeed, in that regard, his examination revealed an absence of petechial haemorrhage which is recognised as a sign of strangulation or asphyxiation. 22 The occasioning of pressure to the carotid artery or other vessel or nerve in that area producing sudden death was identified as a possibility, although, as I understand the evidence, it would be extremely unlikely that post mortem investigation would reveal any such injury, that is in the absence of more significant damage to underlying tissues. In that regard the injury to the neck that Dr Kala identified, was said to be a faint bruise. 23 In Dr Kala's first document he suggested that some of the possible causes of death may have genetic implications for other members of the family. He also said that absent a post mortem examination it was not possible to exclude foul play either from smothering, poisoning or deliberate drowning in the bath. 24 The application needs to be examined in the context of the Coroner's Act 1980. The functions of the State Coroner are specified by s 4D of the Act, one being the function: "4D(b) to ensure that all deaths, suspected deaths, fires and explosions concerning which a coroner has jurisdiction to hold an inquest or inquiry are properly investigated".

25 The Coroner has jurisdiction to hold an inquest concerning the death of a person in the circumstances specified by s 13(1) of the Act. Relevantly jurisdiction exists where it appears to the Coroner that: "(a) the person died a violent or unnatural death; (b) the person died a sudden death the cause of which is unknown, or, (e) the person was not attended by a medical practitioner within the period of three months immediately preceding his or her death or suspected death." 26 Section 14 permits the Coroner who has jurisdiction to hold an inquest to: "dispense with the inquest except in those cases in which an inquest is required to be held." 27 The cases in which an inquest is "required to be held" are prescribed in s 14B and relevantly include 1(d): "a case in which it appears to the Coroner that the manner and cause of the person's death have not been sufficiently disclosed (unless the case is one in which an inquest has been terminated or continued under section 19)."

28 Pursuant to s 24, a Coroner has a right to take possession of and retain the remains of a person whenever the Coroner has jurisdiction to hold an inquest into his or her death. 29 The power of a Coroner to direct the performance of a post mortem examination, or the performance of a specialist examination or test, in either case in relation to the remains of a person, is conferred by s 48(1) and may be exercised before commencing an inquest. 30 By s 48A, the senior next of kin of the deceased may request the Coroner not to direct a post mortem examination. In the event of the Coroner deciding that an examination is necessary or is desirable in the public interest, notwithstanding such request, the next of kin may apply to this court for an order that no post mortem examination be performed, (s 48A(6)). 31 S 48A(8) of that Act provides: "The Supreme Court may make an order that: (a) no post mortem examination, or (b) a partial post mortem examination, be formed if it is satisfied that it is desirable in the circumstances." 32 That section was inserted into the Act after the decision in Abernethy v Deitz, (1996) 39 NSWLR 701, where the Coroner's power to direct a post mortem examination was held to be subject to review by the Supreme Court on the Wednesbury Principle, (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation 1948 I QB 223). 33 The power to direct a post mortem examination needs to be considered within the frame work of the Act that I have outlined. It does not depend upon the Coroner having first made a decision to conduct an inquest. It may, in my view, be exercised as a preliminary step in order to determine whether to hold, or to dispense with, an inquest. It does however depend on the case being one in which the Coroner has jurisdiction to hold an inquest. It is that circumstance which enlivens the remainder of the powers and functions attached to the office of Coroner. 34 As I have observed, the present case is clearly one in which the Coroner has jurisdiction to order an inquest, and in which he has power to direct a post mortem. The inquiry therefore comes down to the question whether it is "desirable in the circumstances" of the present case, to order that there be no post mortem examination or otherwise that there be a limited examination. In Deitz, Mahoney JA said at 707: "The power given by s 48 to determine whether a post mortem should be held is, of course, a discretionary power. The grounds to which a Coroner can and will ordinarily have regard will no doubt be those which bear directly on the proper exercise of the Coronial functions: whether there are medical, legal or other reasons why a post mortem will be of assistance in, to take examples, determining whether an inquest should be held or in the conduct of the inquest. But grounds of that kind are not the only grounds to which the Coroner can and should have regard. It is, in my opinion, proper for a Coroner, in determining whether to direct a post mortem, to take into account the legitimate wishes of the person to whom the body has been committed by law, namely, the legal personal representative and, at least in some cases, the members of the deceased's immediate family. The legislature could not have intended that their wishes be ignored. Ordinarily it is not necessary that the Coroner seek out the wishes of others in this regard. But where those wishes are known to him, it will ordinarily be appropriate that he take them into account. Where, for example, a post mortem would provide only marginal assistance in the discharge of the coronial functions, the fact that a post mortem would cause deep distress to the legal personal representative or relevant family members may be sufficient to warrant the Coroner not directing a post mortem." 35 In relation to the matter of immediate relevance to this case, his Honour observed at 709: "If there be reasons, relevant to the Coronial functions, why a post mortem should be directed or an inquest held, that maybe done notwithstanding that that decision will be inconsistent with, for example, the religious views of those concerned. As far as courts are concerned, action taken by a Coroner must be taken in accordance with the law. But proper account will be taken of religious and other beliefs as far as the law allows and, in many cases, the law as properly administered will be able to accommodate the religious views of those concerned." 36 This approach accords with that taken in other jurisdictions in relation to legislation to similar effect to s 48A(8) of the New South Wales Act. In Green v. Johnstone, 1995 2 VLR 176, Beach J said at 179: "In a multicultural society such as we have in this country, it is my opinion that great weight should be given to the cultural and spiritual laws and practices of the various cultural groups forming our society, and that great care should be taken to ensure that their laws and practices, assuming they are otherwise lawful, are not disregarded or abused. If there were any suspicious circumstances surrounding the death of Leslie Green, I may well have taken the view that the interests of society that the cause of her death be ascertained outweigh the interests of her parents in preserving her body unmutilated by any autopsy. But that is not the situation. All available evidence is to the effect that the infant died from natural causes, probably from the syndrome described as Sudden Infant Death Syndrome. In such a situation it is my opinion that the rights of the parents to be spared further grief as a consequence of their daughter's death outweigh the interests of the community that the actual cause of death be ascertained. Clearly that was the view Cummins J took in Bendet's case. I can find no feature about this case sufficient to distinguish it from Bendet ." (at 179) 37 In Re the death of Unchango (Jnr); Ex Parte Unchango (Snr), the Supreme Court of Western Australia, Walsh J, 19 August 1997, his Honour was concerned with a case of sudden death of an Aboriginal infant which could have been attributed to a number of causes, including Sudden Infant Death Syndrome. The Coroner pressed for a post mortem examination upon the basis that there were public health issues involved in such a case, particularly where it had occurred in an Aboriginal Community. They included the desirability of investigating the possible cause of SIDS, the possible presence of an infection which may have spread to the remainder of the community, the possible presence of a congenital defect which may affect the infant's family, and the possibility of maltreatment, neglect or homicide occurring in a situation where a number of people were sleeping together in a single room. It was also said to be appropriate for the responsible authorities to try to reduce the high rate of Aboriginal mortality, by proper medical inquiry into deaths of this kind, to see if ways could be devised to reduce their occurrence. 38 Walsh J, took these matters into account, but being satisfied that there was no suggestion, on the evidence before him, that death was caused by other than natural causes, observed at page 7: "Whilst there is undoubtedly potential for a post mortem report to reveal that death could well not have been caused by sudden infant death syndrome but by a natural cause such as infection, nonetheless that would not really advance the matter a great deal in circumstances such as this. One should take into account the very strong cultural beliefs held by the relatives and by the community at Kalumburu and the effect that the post mortem would have on them by way of emotional trauma, particularly in view of the fact that it would prohibit, in their view, the spirit of the deceased remaining in the body and returning to the body and would leave the spirit roaming at large. Having regard to the somewhat unusual factors to which I have referred in this case and without in any way indicating that these reasons should be taken as a general precedent for those who hold such beliefs or other people in the community who hold similar beliefs, it seems to me that it is desirable that I should exercise my discretion under the relevant section and order that no post mortem examination be performed upon the body, I being satisfied that it is not desirable in these particular circumstances. But I emphasise, as I have said already, that this is no grounds for a general precedent being established that applies in all similar cases. Each case must be dealt with individually."

39 The only other authority referred to me was that of Magdziarz v Heffey, Supreme Court of Victoria, McDonald J, 3 October 1995. That is a case where the deceased died in the course of his employment when he fell off a ride at the Royal Melbourne Show. The plaintiff swore an affidavit to the effect that both he and his wife were devout Catholics and believed that an autopsy would desecrate their son's body. While this was not advanced as based upon a religious tenet of the Roman Catholic faith, it was accepted that it was appropriate that the court take into account the individual views of the parents of the deceased. While the application was unsuccessful on the basis that the pathologist was unable to reach a conclusion as to cause of death, his Honour nevertheless accepted that it was proper to take into account the views of the family and any distress occasioned to them by an autopsy.. 40 I express my entire agreement with the observations, made in the decisions earlier mentioned, as to the appropriateness of taking into account the religious beliefs of the family of the deceased where they can be demonstrated to be both genuinely held and to accord with the faith of those concerned. 41 That is a matter to be taken into account although it will not necessarily be determinative in any given case. In some circumstances, it may be that there is evidence pointing to foul play, which would need to be investigated, in order to ensure execution of the due process of the law. In other circumstances there may be evidence of a possibility of an outbreak of a serious infection which would need to be investigated in order to cater for public health interests. Additionally there may be cases where it could be in the interests of the immediate family of the deceased to determine whether there is some genetic predisposition to serious disease, that might possibly be treated or detected in its early stages if the possibility of its onset is known. 42 The present however is not a case which falls into any of these categories. Although I have given very anxious consideration to the injuries and to the presence of blood in the bath, I have reached the conclusion that this is a case where it is desirable that there not be any intrusive post mortem examination. The reasons for that are as follows: 43 The deceased was an 86 year old woman. At the time of her death there was clear evidence that her health was failing, and that she was becoming progressively more housebound and dependent upon others. She exhibited some of the classic signs of progressive cardiac disease. At her age she was particularly vulnerable to cardiac failure or to a vascular accident. There are any number of similar although related, conditions including renal failure, hypertension and the like which could have contributed. 44 I can see no possible public benefit in determining which, if any, of those events brought about death or indeed even whether she suffered from some occult malignancy. There is absolutely no reason to suppose that she suffered from any form of contagious disease that might threaten the community, and I see no public benefit in determining the precise cause of death in a person of her age, even if it could be ascertained by post mortem examination. 45 In that regard it seems to me that the highest the case can be put on behalf of the Coroner is that the injuries may have contributed, in combination with other natural causes, to death. It is unlikely in the extreme that any one cause could be pinpointed by an autopsy and I see no advantage in attempting to further refine the possibilities. 46 So far as her own family are concerned, I am not persuaded that they might gather any benefit by knowing whether she suffered from some form of occult malignancy which might have a genetic predisposition. Having lived to the age of 86 years and to an age where sudden death is not unknown, it is extremely doubtful that the finding of any signs of such malignancy would be of value to their own medical management. Nor do I see any realistic possibility of a post mortem examination in this case advancing the store of medical knowledge concerning the causes of death in the aged. 47 Foul play, in my view, is barely even a remote possibility having regard to the absence of any signs of forced entry or of damage to the premises, or of disturbance to its contents or of loss of any property. The fact that it was a highly improbable event is indicated by the circumstance that there were no signs of any struggle, or of any blood elsewhere than in the bath, where the body of the deceased was found. The external physical signs are consistent with the falls which the deceased was recorded to have had, and the injury to her leg is equally consistent with a collapse in the bathroom either nearby or as she got into the bath. 48 The case therefore is one where I am satisfied that there are insufficient signs of a possibility of foul play or other relevant circumstances that would outweigh the religious interests I have identified, particularly having regard to the age of the deceased and the high probability that her death was due to natural causes. As I have observed, even if it were exacerbated or induced by a fall the likelihood is that those natural causes of cardiac disease or vascular accident were the more probable immediate cause of death. 49 Finally, I observe that I am quite unpersuaded by the argument that the wrong message would be sent to the public in a case such as this, if the matter was allowed to proceed without a post mortem examination. For the reasons identified by Walsh J, in Unchango, this case and similar cases can never be taken as a general precedent. In every case a discretion has to be exercised having regard to the particular facts of the matter. 50 I am satisfied in a case such as the present that the public would readily understand the lack of any need for a post mortem in respect of a frail 86 year old woman whose health was observed by independent observers to have been progressively declining, who had a supportive family, who died in her own home, where there was genuine evidence of strong religious beliefs shared both by her and by her family concerning the undesirable interference with a body at post mortem. 51 Accordingly I will make an order in the terms of paragraph 1 of the Summons. I note that no order is sought as to costs.

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