Supreme Court New South Wales Medium Neutral Citation: Gonzales v State Coroner of New South Wales [2018] NSWSC 153 Hearing dates: 16 February 2018 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Common Law Before: Johnson J Decision: Orders made authorising posthumous sperm retrieval from the body of Mahmoud Hawi (see [11]). Catchwords: CIVIL PROCEDURE - urgent application by wife for sperm retrieval from deceased body of husband - order made authorising extraction and retention of sample pending further order of the Court Legislation Cited: Supreme Court Act 1970 Cases Cited: Edwards; Re Estate of Edwards (2011) 81 NSWLR 198; [2011] NSWSC Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 Re Floyd [2011] QSC 218 Texts Cited: --- Category: Procedural and other rulings Parties: Carolina Gonzales (Plaintiff) State Coroner of New South Wales (Defendant) Representation: Counsel: Mr E James; Mr A Katsoulas (Plaintiff) Solicitors: AHA Taylor Lawyers (Plaintiff) File Number(s): 2018/55022 Publication restriction: --- Judgment 1. JOHNSON J: This is an ex parte application by the Plaintiff, Carolina Gonzales, in proceedings where the State Coroner of New South Wales is named as the Defendant. 2. The matter has come urgently before me as Duty Judge after 6.00 pm today. I have granted leave for a Summons to be filed in Court together with an affidavit of Jamil El-Hosni sworn 16 February 2018. 3. The Plaintiff is the wife of Mahmoud Hawi who was shot dead yesterday. The body of Mr Hawi is presently at the City Morgue in the custody of the State Coroner as part of a murder investigation. The Plaintiff was married to Mr Hawi and is the senior available next of kin with respect to him. Mr El-Hosni is informed by the Plaintiff that she desired, and still desires, to have a child from the deceased in the near future which would need to be undertaken by way of in vitro fertilisation. For this purpose, she requests that a post-mortem sperm retrieval procedure be performed with respect to him. 4. The Plaintiff has retained Dr Derek Lok, urologist, who is willing to perform the necessary extraction procedure. The affidavit reveals that Dr Lok has indicated that any post-mortem sperm retrieval procedure should be undertaken as soon as possible after death, and that the maximum time limit for the procedure to be successful is within 36 hours from the time of death. 5. Mahmoud Hawi died at 5.00 pm yesterday, just over 24 hours ago. 6. The solicitor for the Plaintiff has been in touch with Ms Anne Lavena from the New South Wales Coroner's Court indicating that there was to be a request for such a procedure to be undertaken. The State Coroner has indicated that there would be no objection to the procedure, however it was indicated that an order of a Court would be required for the procedure to be undertaken. 7. Courts have made orders in the past authorising posthumous sperm retrieval. In Edwards; Re Estate of Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478, RA Hulme J (at 201 [11]-[15]) referred to an urgent order made by Simpson J (as her Honour then was) as Duty Judge in August 2010 authorising post-mortem sperm retrieval from a recently deceased man. Similarly, Atkinson J in Re Floyd [2011] QSC 218 made an order to facilitate this process. 8. The Summons as originally drawn sought orders in the nature of mandamus under s.65(1) Supreme Court Act 1970 directed to the State Coroner. In discussions with Mr James of counsel, who appears for the Plaintiff, I indicated that I did not think relief of that type was necessary because the State Coroner was indicating a willingness to facilitate the taking of the sample if a Court order was made. It is not the position that the State Coroner is refusing to fulfil a duty in which the Plaintiff is personally interested: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 8, 28-29. What is required is an order of a Court which, as I understand it, the State Coroner will then proceed to implement. There is no opposition by the State Coroner to the application and the investigating police do not oppose it either. Clearly what needs to happen is that any sampling be undertaken in appropriately controlled conditions with the investigating police being present to ensure, for their purposes, that there is no step taken which may in some way compromise their investigation. 9. I will make orders in a moment to give effect to what is sought. I have already granted leave for the Summons and affidavit of Mr El-Hosni to be filed in Court and that Summons is returnable instanter and I have proceeded with the hearing of it. 10. I will make orders to facilitate the taking of the sample. I will also list the proceedings to come before me at 9.15 am on 5 March 2018 so that, if there be any further order that is sought, there can be some appropriate proceeding on foot to facilitate that process. 11. I have already made Orders 1 and 2 in accordance with the Summons. I make the following further orders: 1. The Court authorises post-mortem sperm retrieval by way of the taking of a portion of the epididymis (or such tissue as is necessary) of the deceased Mahmoud Hawi by Dr Derek Lok. 2. For this purpose, the State Coroner is to make available the body of the deceased Mahmoud Hawi for the performance of posthumous sperm retrieval. The Court notes and authorises that investigating police will be in attendance when the sample is taken. 3. The Court authorises the removal of the sample obtained into the custody of Dr Derek Lok or Rayan Kadadi, paralegal, of AHA Taylor Lawyers for delivery to an appropriate storage facility. 4. The Court authorises the storage of the sample obtained pending a future application to the Supreme Court for the use of that sample. 5. The proceedings are stood over for directions at 9.15 am on 5 March 2018 before me. 6. I grant liberty to apply on 24 hours' notice or if there is an urgent need to make application, an application can be made to me as Duty Judge on the weekend of 16-18 February 2018. ********** 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: 21 February 2018