KRANTZ v HAND [1999] NSWSC 432

New South Wales Supreme Court CITATION : KRANTZ v HAND [1999] NSWSC 432 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 10948/99 HEARING DATE(S) : 22/4/99; 23/4/99 JUDGMENT DATE : 23 April 1999

PARTIES : Ian Krantz Magistrate Derrick Hand State Coroner JUDGMENT OF : Wood CJatCL

COUNSEL : G. Segal for Applicant P. Lakatos for Respondent SOLICITORS : Milne Berry & Berger CATCHWORDS : DECISION : Plaintiff's application granted

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;

(b) The taking of blood samples; and

(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".