Autopsies and the Indigenous Body

We can see some of those tensions in action when we look at the law’s treatment of coronial autopsies, ie urgent decision-making by coroners and courts about autopsies for forensic rather than research purposes.^[685]

There is a public interest in knowing how people died, with rationales such as serving justice through fact-based criminal investigation and protecting public health through research into disease or injury.

Statute law in Australian and overseas jurisdictions mandates that a coroner can order an autopsy, irrespective of the religious or other beliefs of the dead person (who has no standing) and the person’s survivors.^[687] Some statutes provide for interested parties to challenge authorisation of an autopsy.^[688] That challenge is usually urgent and when successful typically embodies cultural exceptionalism, ie law recognising that in some circumstances the values of particular groups will be taken into account and indeed override a practice norm.^[689]

We can see cultural exceptionalism in action by looking at decisions in Australia regarding challenges to autopsies on Indigenous people. Those challenges reflect differences in faith and the experience of Indigenous people since white settlement regarding the collection of human remains for anthropological or other collections.^{[690] [691]}

In Evans v Northern Territory Coronerⁱ³ the Northern Territory Supreme Court agreed to prevent an autopsy on an Indigenous minor who may have died from SIDS.

The judgment notes that the father of the child was notified of the death, then

spoke with the doctor and enquired whether there would be an autopsy. The doctor alerted him to the possibility that he may be able to stop any autopsy from taking place. The father subsequently obtained legal advice and brought these proceedings as a consequence.

In his affidavit filed in support of the application the father advised that he lives a traditional life with his wife and children. He said that he did not want the autopsy to take place as “it is against our way and culture”. He explained the processes that would usually follow upon a death and went on to say:

I do not want my son to undergo an autopsy because the Jungayi [elders] can refuse to look after him and prepare him for burial. This would be devastating to me and my family.

If the autopsy takes place my son will not be able to enter the spiritual country and be with his ancestral family because his body would not be whole. He will be alone with nowhere to go and no one to look after him. This would be very distressing to me and my family if my son’s spirit had to go on without his ancestors to look after him.^[692]

The father expressed concern that if the autopsy took place “bad things will happen to family members” and that his son would be “lost with nowhere to go because our law has been broken”.

In Unchango^[693] Walsh J was receptive to that argument in overriding the Coroner’s decision regarding autopsy of another Indigenous infant whose death was suspected to have resulted from SIDS.

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.

In Evans Riley CJ commented that —

There was no dispute that proceeding with the autopsy would cause the father, the mother, the family of the deceased child and others “great heartache and distress”. The views expressed by the father on behalf of himself and his family were clearly, deeply and genuinely held.^[694]

The Coroner had sought expert advice, hearing that “unless an autopsy is performed there will usually be no way that these conditions can be identified” and that “the results of autopsies may help the community, both lay and professional, to gain an understanding of issues around such deaths that may be useful in formulating future preventative strategies”.^[695]

In refusing the autopsy the Court noted that

it is incumbent upon the Court to resolve a conflict between the decision of the Coroner that an autopsy is necessary and the competing wishes of family, relatives or friends of the deceased person generally based upon cultural or religious beliefs that are genuinely and strongly held. In some cases it has been held that ascertaining the precise cause of death is less important than the spiritual and cultural beliefs of the family in the particular circumstances.^[696]

The Court took a pragmatic view, referring to its decision in Wuridjal v The Northern Territory Coronerⁱ⁹ and stating that

there were grounds upon which the Coroner was justified in requiring a post-mortem examination including an autopsy.

On the other hand the public interest in knowing the cause of this death must be weighed against thepublic interest in giving deeply held spiritual and cultural beliefs proper recognition and respect. In this case I was satisfied that the spiritual beliefs of the family of the child were genuinely held. To perform an autopsy would compound the great grief and distress already being suffered by the family... In all the circumstances the likelihood was that the performance of an autopsy would not provide any additional information as to what actually caused the death of the child, although it may have done so. If there was any additional information to be obtained from the autopsy it was likely to be quite limited. The findings resulting from an autopsy were unlikely to contribute in any meaningful way to a better understanding of the death of this child or to contribute in any meaningful way to efforts being made to improve health outcomes for other infants.

In all the circumstances I considered that, in this case, the interests of the family outweighed the public interest in determining the precise cause of death and I ordered that no autopsy be performed.^{[697] [698] [699]}

In Raymond-NewitT' the Court similarly granted a family’s application under section 23(3) of the NT Coroners Act to prevent an autopsy of a person killed in a road crash.

It noted that its exercise of discretion under section 23(3) involved balancing the interests of the deceased person’s family “in following and maintaining their Aboriginal culture and law” against “the interests of the community on the other that the cause of an otherwise unexplained death be ascertained if possible”. That balance reflects a recognition that “if there are any suspicious circumstances surrounding the death, or there are other compelling reasons why it is in the public interest that an autopsy be performed, those cultural and spiritual considerations must take second place to the public interest”.^[700]

In this instance the Court endorsed the comment in Green v Johnstone⁴ that —

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.

Was the autopsy essential? The Court adopted a pragmatic approach, emphasising outcomes rather than principles.

It was further submitted that knowing that the cause of this death was the deceased’s heart condition, rather than the presence of alcohol or drugs in his system, may ensure that the deceased’s dependents obtain the full benefits available to them under the Motor Accidents (Compensation) Act. I was informed that toxicology results were pending, meaning that information about whether the deceased had alcohol or other drugs in his system at the time of death will become available as a result of blood samples and that it is not necessary to perform an autopsy to achieve this result...

It was further submitted on behalf of the coroner that understanding the cause of this death may give rise to consideration and discussion of the entitlement to drive of persons with serious heart conditions, the capacity and obligation of treating medical personnel to report such conditions to the licensing authorities, and the power and duty of those authorities to consider and determine a driver’s entitlement. There is a real possibility that this man’s death was caused or contributed to by heart disease, and an autopsy will do nothing to establish the cause of the collision. In those circumstances, it seems to me that the coroner has all the information he is ever going to get, autopsy or no autopsy, on which to base any such comments or recommendations.

Disquiet about autopsies (or more broadly about delays in burial/cremation of a body) is not restricted to Indigenous people. As noted above most Australian jurisdictions make some allowance for personal and cultural concerns, and practice documents such as the Queensland State Coroners Guidelines highlight the need for sensitivity. Familial distress, however, is insufficient grounds for overriding a coronial decision to conduct an autopsy. ^[701]

In Krantz⁴ Wood CJ accepted a Jewish family’s appeal regarding a planned autopsy of an 86 year old woman. Wood noted that

[Rabbi Apple commented that] “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.

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.^{[702] [703]}

Wood concluded

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.

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.^{[704] [705]}

That decision is consistent with jurisprudence overseas, such as Callanan⁴⁴ and R v Westminster City Coroner, ex Parte, Rainer QBD 112 SJ 882.

It is important to note that Australian courts, in deciding applications on cultural grounds to prevent autopsies or order immediate burial, have not given an automatic dispensation. Instead, although recognising sensitivities, they have decided on a case by case basis. Ethnicity is not a guarantee of exceptional outcomes. Riley J in Wuridjal v Hand [2001] NTSC 99 thus rejected an application by members of the Yolngu community. Coroners’ decisions have been overturned, for example in Green v Johnstone, Unchango, and Abernethy v Deitz (1996) 39 NSWLR 701.

They have also been upheld, for example in Magdziarz, where McDonald J noted familial distress but endorsed the autopsy on the basis that the cause of death of an adult son was not discernable though external examination of the deceased. The Court noted the parents’ claim that they were devout Catholics and believed “that an autopsy will simply serve to desecrate our son's body”. Counsel for the parents had indicated that

although it was not being advanced that there was a religious reason in particular against the autopsy in this case, nevertheless the Court should take into account the religious views of the parents of the deceased.^[706]

In Joe Traynor v Ors in 2012, Digby J of the Victorian Supreme Court endorsed parental rejection of an autopsy of a seven year old girl who died after getting tangled in a skipping rope that was tied to a swing.^[707] Her parents argued little could be gained from performing an autopsy and her family should be able to bury her intact. Ian Freckelton SC, co-author of the leading Australian text on coronial investigation, argued on the family’s behalf that the child’s identity was already known, as was the cause of her death. There was no indication of foul play: nothing would be gained by the “intrusive dissection of her body” aside from causing unnecessary distress to her family. “The child died in unusual circumstances in a tragic and distressing way and there is minimal to be gained and no necessity to perform actions of this intrusive kind”. He argued that there was no reason why a finding could not be made that she had died of constriction of the neck “quite adequately without the gratuitous causing of distress to her parents” and that it was “utter speculation that [an autopsy] is going to provide any information that will be useful”.

Digby J appears to have agreed, reportedly commenting that the girl’s father was not able to bear the thought of an autopsy being performed on his deceased daughter and his partner just wanted her daughter back for burial. He had weighed up the public interest in learning the cause of the death, against the anguish and grief experienced by the parents, rejecting the State’s argument that an autopsy was necessary for the coroner to fulfil its statutory obligation in determining the cause of the death of a “young child who died in extremely... unusual circumstances” and provide recommendations, wherever possible, that could prevent any further deaths the same way.

In 2009 prominent Indigenous artist Banduk Marika^[708] unsuccessfully sought an injunction against the Northern Territory Coroner’s authorisation of an autopsy on her son after his death in a road accident.^[709] Marika reportedly argued that an autopsy is inconsistent with traditional law. She had told police after her son’s death that she did not want an autopsy. She was told by the coroner during the next day that an autopsy would be carried out in 48 hours, timing that potentially disadvantages people without immediate access to legal support. During the injunction hearing Marika reportedly told the Court that her family felt “disfigurement” of her son’s body was unnecessary, that the family had not seen any evidence from police to justify it and that when a body is interfered with by a foreign hand the dead person’s spirit is prevented from moving forward into the next world.

Some people, however, are concerned about what is happening to living bodies in this rather than the next world.