Supreme Court New South Wales Medium Neutral Citation: Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 Hearing dates: 4 December 2017 Date of orders: 05 December 2017 Decision date: 05 December 2017 Jurisdiction: Common Law Before: Rothman J Decision: (1) The First Defendant be at liberty to release the remains of Pono Wairu Aperahama to Lance and Alice King Funerals or such other funeral service as the Second Defendant/Cross-Claimant may direct for the purpose of carrying out the funeral arrangements referred to in [47]-[49] of the Affidavit of Piki-Ora Aperahama; (2) Following the funeral service and cremation referred to in the immediately preceding order, the Second Defendant/Cross-Claimant arrange for approximately half of the cremated remains of the deceased to be released to the Plaintiff; (3) The parties shall bear their own costs. Catchwords: INTESTACY – burial rights – minor's death – equal rights of mother and father – significance of Maori culture – disagreement between divorced parents as to appropriate burial place and kind of funeral – cremation and burial – the practicalities of burial without unreasonable delay – regard must be had to the parties' understanding of cultural requirements, but the issue should be decided on the basis of principle Legislation Cited: Coroners Act 2009 (NSW) Evidence Act 1995 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Darcy v Duckett [2016] NSWSC 1756 Doherty v Doherty [2006] QSC 257 JSB (a child) v Chief Executive, Ministry Of Social Development (High Court of New Zealand, Heath J, 4 November 2009, unrep.) Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197 State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64 Takamore v Clarke [2011] NZCA 587 Texts Cited: New Zealand, Law Commission, The Legal Framework for Burial & Cremation in New Zealand: A First Principles Review, (4 October 2013) at 183 Category: Principal judgment Parties: Te Rina Abraham (Plaintiff) Magistrate Stone, Deputy State Coroner (First Defendant/Cross-Defendant) Steven James Timothy Henry (Second Defendant/Cross-Claimant) State of NSW – amicus curiae Representation: Counsel: PM Lane (Plaintiff) Submitting appearance (First Defendant/Cross-Defendant) J Needham SC/E Tringali (Second Defendant/Cross-Claimant) S Free (State of NSW) Solicitors: Crown Solicitor's Officer (First Defendant/Cross-Defendant) Gilbert + Tobin (Second Defendant/Cross-Claimant) File Number(s): 2017/332903 Judgment 1. HIS HONOUR: The Court has before it a Summons and Cross-Summons seeking orders, in the inherent jurisdiction of the Court, granting, to one or other of the parents of a deceased, possession of the deceased's body in order to carry out funeral arrangements. 2. The original Summons filed by the deceased's mother ("the Plaintiff") seeks orders for the appointment of the mother as senior next of kin under the Coroners Act 2009 (NSW); the quashing of the orders of Deputy State Coroner Stone already made in that respect; and the staying of said orders pending this Court's ruling on the appropriate senior next of kin. Further, an order was sought seeking to prohibit the release of the deceased's body to anyone other than the mother, being the Plaintiff in the proceedings. Each of those orders is no longer pressed. 3. The orders that are pressed are that the Plaintiff in the proceedings be entitled (against the interests of the father, who is the Second Defendant and Cross-Claimant) to have the body of the deceased delivered to her for the purpose of making burial arrangements and, consequential to that order, that the Plaintiff be entitled to bury the deceased in New Zealand, if she so desires. 4. The Second Defendant in the original Summons, who, as stated, is the deceased's father, has filed a Cross-Summons in essence to the opposite effect of the orders sought and pressed in the Summons with some particulars of the funeral arrangements. The funeral arrangements proposed by the Cross-Claimant are that the deceased's body be released to a particular funeral parlour and that following the funeral the deceased be cremated and the ashes be divided approximately half and half to the Cross-Claimant and Plaintiff respectively. Brief Background 1. The Plaintiff and Cross-Claimant are each New Zealanders and so too, as a consequence of that fact, was the deceased. The deceased was born in Sydney on 17 January 2000 to the Plaintiff and Cross-Claimant. 2. In April 2000, the relationship between the Plaintiff and the Cross-Claimant ended and the deceased continued to live with the Plaintiff. 3. On 18 September 2005, the deceased was baptised. 4. In 2008, following an altercation between the Plaintiff and her sister that gave rise to criminal proceedings, the deceased, together with his siblings, was removed from the custody of the Plaintiff and placed with the Plaintiff's parents. All of the foregoing occurred in Australia. 5. In or about 2010, the Plaintiff moved back to New Zealand and resided there. On or about 24 September 2013, the deceased was involved in an accident and was treated in the Intensive Care Unit ("ICU") at Westmead Children's Hospital. He was in ICU for a few weeks and he was otherwise in hospital for about nine months. The effect of the accident was that the deceased suffered significant injuries and an ongoing difficulty associated with head injuries. 6. For reasons associated with the conduct of his grandmother towards one of the deceased's siblings (a half-brother), the deceased was not permitted to return to the custody of his grandparents after the accident. Instead, he was accommodated with Challenge Community Services. 7. On or about 17 October 2017, the deceased was at Lambton Swimming Pool and became involved in a verbal dispute with another patron. The deceased was approached by a member of staff at the pool and became erratic, punching himself and, apparently, attempted to assault pool staff. The deceased also struck a brick wall with the back of his head with some degree of force on at least four occasions. 8. Pool staff were required to restrain the deceased. Police and ambulance were subsequently called and the deceased died during the journey from the pool to the hospital. During that journey the deceased was not physically restrained. He was pronounced dead on arrival at John Hunter Hospital on 17 October 2017. 9. As a result of the fact that the deceased passed away during a police operation , the law requires that there be a coronial inquest. There seems to be no suggestion, and there is no suggestion in this case, that any conduct of the police contributed to the death of the deceased. 10. The Coroners Act permits objections by a senior next of kin of a deceased and for the Coroner to deal with any such objection: s 96 of the Coroners Act. A senior next of kin is defined in s 6A of the Coroners Act and includes in s 6A(1)(c) of the Coroners Act, in the present situation, for the senior next of kin to be "either of the deceased person's parents". The Coroner appointed the Cross-Claimant as the senior next of kin but the Coroner's note on that appointment is to the following effect: "The appointment is NOT in any way about who organises and takes control of [the] body for [the] funeral. That is normally the function of the executor of the estate." Challenge to the Coroner's Appointment of the Cross-Claimant 1. As earlier indicated, initially, the Summons sought to challenge the appointment of the Cross-Claimant as the senior next of kin. Those orders were not pressed. 2. The Attorney-General sought leave to intervene (which was not opposed and which the Court granted) to assist the Court in the jurisdiction of the Coroner and the appropriateness of orders in the nature of certiorari, mandamus or prohibition, as sought. Because those orders were not pressed, that issue is not one with which the Court is required to deal, at least at any length. 3. The purpose of the prayers for relief relying upon s 69 of the Supreme Court Act 1970 (NSW) seem to be that the decision of the Coroner had an effect on the appropriate person to deal with the funeral arrangements for the deceased. It does not have that effect and, on the material before the Court, no jurisdictional error or error of law has been identified or is manifest in the decision of the Coroner. Further, on appropriate reflection by the parties, no criticism is made in this Court of the Coroner's process. 4. I am grateful to the Attorney for intervening and seeking to assist the Court in the manner that has occurred and grateful for the helpful submissions of counsel who appeared for the Attorney. Further I congratulate counsel for each of the parties in confining the issues before the Court to that which is truly and appropriately in dispute and for the assistance of written and oral submission, which have been most helpful. Maori Culture 1. One of the major issues between the parties is the effect of Maori culture on the burial arrangements that should be effected. Probably because of the urgency with which the matter has come before the Court, no expert has been qualified and the Court is not assisted by the provision of an independent expert report that accords with the principles in, and provisions of, the Evidence Act 1995 (NSW). 2. Each party has one or more witnesses that attests to their understanding of Maori culture. Essentially, the Plaintiff seeks to have the deceased buried with his Maori ancestors, being on his maternal ancestral side. The preference for which the Cross-Claimant submits has already been identified above. 3. Evidence called on behalf of the Plaintiff attests to their understanding of Maori culture being that a deceased must be buried so as to return the body to the earth from whence it came. The Affidavit of Yvonne Maria McCullough describes her relationship from a cultural perspective with the deceased as being that the deceased is her "moko" or grandson. 4. This relationship arises because, as an aunt in Anglo-Irish culture, she and the deceased's grandfather were brought up together and he, the deceased's grandfather, is regarded as her brother. She refers to the oral laws of the marae; that her father was an elder; and that she, as a woman, has the ability to stand and talk at the marae. 5. She describes Maori culture as requiring that a person be buried where their ancestors are. The Plaintiff, who is the deceased's mother, has her mother, grandmother and child buried at Oturei, as are all of her ancestors. 6. She alleges that the Cross-Claimant came from a different marae. 7. Ms McCullough refers to her understanding that there is another strong rule about dealing with the remains of a deceased under Maori cultural laws, being that every part of the body must be kept intact and that cremation or the burning of remains is forbidden. She asserts that, from her understanding, the reason for that rule is that "we must be returned to the ground because that is where our people came from". 8. She refers to the heartache, social disapproval and blameworthiness with which the family would suffer, if they were perceived not to have done the correct cultural acts in relation to the burial. 9. A witness for the Cross-Claimant was Maata Takiari, who is the older sister of the Plaintiff. She refers to Maori culture; the tribe with which she identifies; and, on her understanding, that persons are assigned to their father's tribe under Maori custom, as a consequence of which she identifies with her father's tribe and her maternal grandfather's tribe. Ms Takiari also refers to the fact that Maori custom is passed from generation to generation on the father's line. She is a tutor, liaison officer and secretary in Maori Performing Arts Group in Brisbane and, in that role, teaches the basics of one of the tribal cultures and language through song and dance. 10. As to funerals, Ms Takiari asserts that Maoris believe "people should return to their ancestral roots when they pass away". She goes on, in her Affidavit, to state: "It is up to the immediate family of the deceased to decide where those roots lie. In my experience, there is usually a dispute in the family about where the person should be buried." 1. While, in submissions, no great moment was made of the foregoing, it is noteworthy that the reference is to a dispute about where the person should be "buried". 2. Ms Takiari refers to a process of consultation between the deceased's family members and the appointment of a spokesperson. The funeral process takes three days, during which the decision of the immediate family is communicated to the extended family and the community. 3. At that time people can raise concerns about the correctness of the decision concerning the deceased's body. Ms Takiari makes clear that she has never known a funeral where there has not been a debate over the body of the deceased. 4. That dispute, it seems, is about whether the organisation of the burial and the burial site be as determined by the mother's side or the father's side of the family. Further, Ms Takiari says in relation to the issue of burial as distinct from cremation, the following: "Maori tradition from days of old is to bury a body, rather than cremate it. However, I have never heard of cremation being taboo or forbidden to our people. Cremation is not people's first preference but I have observed a shift in practices and it is not uncommon for Maori families to decide to cremate a body because it is cheaper than a burial. Where a person passed away outside of New Zealand, cremations tend to be more common as the family needs to organise mourning proceedings both in New Zealand and in the country where the deceased lived, and this becomes very expensive. However, I have also observed families to use cremations even where the deceased lived and passed away in New Zealand, particularly if the family would find it difficult to afford a burial." 1. It seems on the basis on the understanding of the parties, most of which is consistent with the foregoing statements, that the traditional view is that, in Maori culture, a body should be buried, but that recent generations have not followed the tradition to the letter and cremation occurs but is not the preferable course. However, the issue between the parties is not solely one determined by a view as to Maori culture. Other Evidence 1. The Court has already referred to the evidence and preference of the Plaintiff and Ms McCullough, on the one hand, and the preference of the Cross-Claimant and Ms Takiari, on the other. It is necessary to refer to the evidence of Piki-Ora Aperahama, who is the deceased's sister. She has seven other siblings, but none of them full siblings as was the deceased. 2. Ms Aperahama is 19 years of age and was also born in Sydney. Her maternal grandparents lived in Australia for many years and one of them still does. The other is deceased. 3. Ms Aperahama testified that the Plaintiff's family live in Whangarei in New Zealand; her maternal grandfather came from Te Hapua; and that she has only seen her extended family in New Zealand about three times in her life, during short trips to New Zealand. 4. Ms Aperahama also testified that her paternal grandmother also lives in Whangarei. Ms Aperahama also testifies as to the history of the deceased and her in Australia; the accident as a result of which the deceased suffered injury; his later care and living arrangements; and the process by which the proposal for cremation occurred. 5. Ms Aperahama was in Sydney when her brother died. She received a telephone call from her father, the Cross-Claimant, after which there were discussions within the family. The deceased never expressed a view as to his burial place or the method of his burial, probably, according to his sister, with which I tend to agree, because of his youth. 6. Her observation of her brother was that he did not have a strong connection to New Zealand or Maori culture. He went to New Zealand only three times in his life and the two of them were taught culture from their grandparents and aunties. 7. She recalls a number of conversations in the family about how to deal with her brother's body, although the dates are no longer recalled. She also received calls from her mother, the Plaintiff, who had asked for the body of the deceased to go back to Outerei, the place of the deceased's grandmother in New Zealand. Her initial reaction to that was that Australia was his home and where he should be. 8. The discussions with her father referred to the possibility of burying the deceased in Te Hapua, where the deceased's grandfather, Whetu, will be buried. This was also the deceased's grandfather's initial desire. Ms Aperahama recounted a difficulty relating to the burial of her grandmother, Mary, as a result of the higher perceived right in Maori culture of her grandmother's father, who ultimately decided her burial place, contrary to the views of her grandmother and her grandfather. 9. Ms Aperahama testified that they want a traditional Maori service in Penrith, lasting from three to five days, during which people will come and pay their respects, in accordance with traditional Maori practices. They have organised, or will organise, a Maori elder and a Maori minister to assist with the process. 10. The proposition for which the Cross-Claimant submits in this Court is for that traditional Maori service to occur after which the deceased will be cremated and half of the deceased's ashes will then go to his mother and the other half will remain in Australia with relatives. This is clearly intended, as stated by Ms Aperahama, as a compromise. It is the cremation aspect, as earlier stated, that is the major objection of the Plaintiff. Principles 1. As earlier stated the issue before the Court involves an exercise of the inherent jurisdiction of the Court and does not depend on the exercise of the Coroner's jurisdiction or any decision or judgment issued by the Coroner. There is no one correct decision and a decision in favour of the Plaintiff or the Cross-Claimant will prejudice the other. 2. Ultimately, the deceased had expressed no view, but his perceived views are, in the circumstances, probably less important than the views of those around him and who will and do mourn his loss. The circumstances are tragic. The Court is not King Solomon. Whatever happens, one or other party will be disadvantaged. 3. The jurisdiction of the Court and the principles upon which it should exercise that jurisdiction were discussed in historical terms by Young J (as his Honour then was) in Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197. His Honour traced the history of the appointment of an administrator of an estate which, generally, includes the right to determine the funeral arrangements. The Court, here, is not concerned specifically with the appointment of an administrator, but with orders that are sought relating to the funeral arrangements. 4. His Honour in Smith, supra, dealt at length with the historical (and international) judgment and principles, in this area, within the inherent jurisdiction of the Supreme Court. His Honour was drawn, to some extent, to the position in the United States, because, like Australia, it does not have ecclesiastical courts, and to the position in England, under both common law and ecclesiastical law. His Honour also referred to cited cases in Australia. His Honour noted, and, with respect, I agree, that the 1824 Charter of Justice invested in the Supreme Court of New South Wales all of the jurisdiction of the English ecclesiastical courts and that s 23 of the Supreme Court Act gives this Court all the power needed to administer justice in New South Wales. 5. After dealing with the authorities, his Honour set out a number of principles: "Having reviewed these authorities, what is the current legal position with respect to the right of burial in New South Wales? It is useful to state the propositions that follow from the above analysis and from the analysis subsequently appearing in these reasons before dealing with the facts and submissions in the present case. 1. If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so. 2. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body. 3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so. 4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1. 5. The right of the surviving spouse or de facto spouse will be preferred to the right of children. 6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue. 7. If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body. 8. Cremation is nowadays equivalent to burial. 9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses. 10. A Right of Burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot. 11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery. 12. Subject to such by-laws, the holder of the Right of Burial has the power to decide on the appearance of the grave and headstone. 13. The reasonable cost of a reasonable headstone is recoverable from the deceased's estate. 14. The holder of the Right of Burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave. 15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the Right of Burial." 1. With great respect to Young J, I adopt those principles. 2. In a different context, Campbell J dealt with the issues as they relate to Aboriginal culture in Australia and cited and applied the judgment of Young J to which reference has been made: Darcy v Duckett [2016] NSWSC 1756. Reference should also be made to the judgment of Nicholson J in State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64, which refers to the inherent jurisdiction of the South Australian Supreme Court being exercised in the context of Aboriginal culture. Nevertheless, the principles summarised by Young J are applicable and were cited with approval by Nicholson J. I will apply them. Consideration 1. During the course of discussion with Counsel, the Court enquired of the Plaintiff as to whether, were the Court otherwise minded to allow the Cross-Claimant the right to organise the funeral arrangements, would the Plaintiff prefer the proposal of the Cross-Claimant or a burial in Australia. On instructions, Counsel for the Plaintiff submitted that the preference was for burial in Australia, notwithstanding that such an arrangement would preclude the Plaintiff from holding any ceremony in New Zealand. 2. Counsel for the Cross-Claimant did not accept, as meeting their requirements, the proposition of a burial in Australia, as distinct from a cremation. Further, from the Cross-Claimant's perspective, which in this regard represents the perspective of the deceased's sister and other relatives to which the Court has referred, burial in New Zealand would practically prevent any mourning period or visitation rights. 3. Each of the father and mother have equal ranking. While there may be differences within respective cultures, under the law mother and father have equal ranking privilege. Applying the principles which Young J summarised, it is clear from the foregoing that there is no executor and there was no will of the deceased. It is unnecessary to appoint an executor. 4. The Cross-Claimant has, to the extent reasonably practicable, consulted with other stakeholders and the position put forward by the Cross-Claimant is, itself, a compromise position. Each of the mother and father would ordinarily have the highest right to be the person chosen to make arrangements for the funeral of the deceased. As a consequence, pursuant to Principle 6 in Young J's summary, recited above, the practicalities of burial without unreasonable delay should decide the issue. 5. While Young J refers to cremation nowadays being the equivalent to burial (Principle 8), that is a statement as to general principle and not one that takes account of cultural issues. 6. I have found this decision most difficult. Nevertheless, the proposal described in the Affidavit of Ms Aperahama has the following benefits: it provides for a three to five day Maori funeral ceremony; it allows each of the close relatives to have some burial rights and to attend the burial ceremony; and it is the result of consultation amongst the stakeholders. It is the preferable course for the majority of close relatives. Further, it is the most expeditious alternative and obviates unreasonable delay. It also avoids the further disputation that, on the evidence, will occur because of the debate in New Zealand. Yet, at the same time, it will allow some ceremony at each of the relevant marae. 7. The difficulty with the proposal is that I have formed the view that the preferable course under Maori culture is for the body to be and remain buried, rather than be cremated. I note that the Plaintiff's acceptance of a burial in Australia instead of a cremation shows the genuineness of her view as to the dictates of Maori culture. Some of the cultural issues are discussed by the Court of Appeal of New Zealand in Takamore v Clarke [2011] NZCA 587. Further, the High Court of New Zealand has made orders resolving disputes between family members under Maori customary law that contemplate cremation; see JSB (a child) v Chief Executive, Ministry Of Social Development (High Court of New Zealand, Heath J, 4 November 2009, unrep.). 8. The New Zealand Law Commission has also dealt with the issue in The Legal Framework for Burial and Cremation in New Zealand (IP34), which Report is publicly available at www.lawcom.govt.nz. "TIKANGA MĀORI CONCERNING CARE AND CUSTODY OF THE BODY Tikanga Māori contains a set of distinctive practices and principles that deals with care and custody of a deceased's body, organisation of final burial arrangements, and decision-making among whānau, hapū and iwi of the deceased. These processes begin to unfold immediately upon death and continue throughout the tangihanga (tangi) held for the deceased. It is important in tikanga Māori to maintain the strength of the deceased's whakapapa (genealogical) connections with past ancestors and future descendants. As a result it is expected that the deceased will be buried in their ancestral lands or the place of their birth. This is not a rigid rule. In contemporary times, many Māori are born or live outside of their tribal territories, and this can affect the outcome of the decision as to burial location and sometimes also whether burial or cremation is chosen. The process of reaching decision is important. Emphasis is placed on giving adequate expression to core underpinning values, including maintaining whakapapa connections and allowing time for debate and discussion. The final decision might be reached by way of consensus, compromise, or acquiescence; or by one party exercising greater influence or willpower over the other; but there is usually an emphasis on all present 'owning' the decision. It is important that any conflict is not left unresolved, or it is thought that the wairua (spirit) of the deceased will linger and the passage of the deceased to the status of ancestor will remain incomplete. Complete spiritual death only occurs once the tangihanga and its rituals have been properly concluded." [Emphasis added.] 1. Even within New Zealand and in funeral arrangements that are performed in accordance with Maori culture, cremation has occurred. In Australia, that was the situation with which the Queensland Supreme Court dealt in Doherty v Doherty [2006] QSC 257. 2. In all of the circumstances, the Court will issue orders in accordance with the Cross-Claim as amended during proceedings so as to ensure that the order is not a direction to the Coroner but rather an indication of that which he is permitted to do. The effect has been explained during discussion with counsel. Such orders will allow a Maori cultural burial service in Australia and allow each of the important relatives the capacity to have ashes at the relevant ancestral or other burial location. 3. The Court makes the following orders: 1. The First Defendant be at liberty to release the remains of Pono Wairu Aperahama to Lance and Alice King Funerals or such other funeral service as the Second Defendant/Cross-Claimant may direct for the purpose of carrying out the funeral arrangements referred to in [47]-[49] of the Affidavit of Piki-Ora Aperahama; 2. Following the funeral service and cremation referred to in the immediately preceding order, the Second Defendant/Cross-Claimant arrange for approximately half of the cremated remains of the deceased to be released to the Plaintiff; 3. The parties shall bear their own costs. ********** Amendments 06 December 2017 - Amendment to para [13] - changed words "while in police custody" to "during a police operation" in alignment with Page 4 of Exhibit A of the Hearing on 04/12/17 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2017