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Aingiris v Karapo [2008] PGNC 45; N3325 (6 March 2008)

N3325

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 60 OF 2007

BETWEEN

NELLS AINGIRIS
or himself and on behalf of 14 Others
Applicants

AND

ORIM KARAPO
First Defendant

AND

THE STATE
Second Defendant

Waigani: Salika, J
2008: 6 March

PRACTICE AND PROCEDURE – Powers of Coroner – Sections 7 and 10 of Coroners Act – Abuse of the power by the Coroner.

Counsel:
Mr B N Nouairi, for the Plaintiff
Mr F Cherake, for the Defendants

6 March, 2008

1. SALIKA J: Background: This is an application for judicial review of the decision of the First Defendant made on 12 January 2007 at the Kavieng District Court. The plaintiffs and others seek the following orders.

(1) Leave to apply for judicial review of the ruling of the 1st Defendant made on 12 January, 2007 at the Kavieng District Court.

(2) an order in the nature of certiorari to remove to the National Court and quash the decision by the 1st Defendant made on 12th January, 2007 making a ruling that the proceedings held at the Kavieng District Court on 12 January 2007 is a Coroner’s Court and therefore having jurisdiction under Section 7(1) of the Coroners Court.

(3) A declaration that the decision by the 1st Defendant on 12th January 2007 making its ruling that the proceedings held at the Kavieng district Court on 12 January 2007 is a Coroner’s Court is ultra vires Section 7(1) of the Coroners Act, and is null and void and of no effect.

(4) An order in the nature of certiorari to remove to the National Court and quash the decision by the 1st Defendant made on 12th January 2007 making a ruling that certain orders issued against all the fifteen (15) Plaintiffs on 29 November, 2006 within the vicinity of the Kavieng General Hospital is made in his (1st Defendant) capacity as the Coroner.

(5) A declaration that the said certain purported orders issued by the 1st Defendant in his capacity as the Coroner against all the fifteen 15 (Defendant) within the vicinity of the Kavieng General Hospital is ultra vires Section 28 of the Coroners Act, and is null and void and therefore of no effect.

(6) an order for costs in favour of the Plaintiffs.

(7) Any such other or further orders that the Court may deem just and proper in the circumstances.

(8) an order that the Registrar, which shall take place forthwith, abridge the time for the entry of the order to the time of settlement.

2. The application is supported by:-

(a) Statement pursuant to Order 16 Rule (2) (a) filed on 9 February 2007.
(b) Affidavits of Nells Aingiris filed on 9 February 2007.
(c) Undertaking as to damages field on 12 February, 2007.
(d) Affidavit of Service by Nells Aingiris filed on 12 February, 2007; and
(e) Review book.
(f)

3. Leave for Judicial Review was granted on 13 February, 2007.

FACTS

4. The facts in this matter are as outlined in the submission of the plaintiffs which I reproduce verbatim:

"Facts"

The plaintiff represents himself and 15 others’ who were all charged by the police upon the complaint of the first defendant in Kavieng for alleged contempt of the Coroner pursuant to Section 28(1)(d) of the Coroners Act.

The brief history of the events of the matter leading to the contempt charges being laid are that after the death of the plaintiff’s brother in-law, an adult person by the name of Norman Sieve at the Kavieng Hospital on 24th November, 2006, there was an argument between the deceased’s son and two daughters as to who should be in charge of the body and the burial procession.

The son namely Steven Norman had adamantly refused to allow his two sisters namely Sharon Lasisi and Rayleen Peter to partake in the funeral procession and other customary processions of their father. The effect of this was the clan members of the deceased, including their Chief (Maimai) was to be left out of these important ceremonies. The plaintiff, Nells Aingiris, is the chief of the clan (Eaisa Nge Tapa) within the Lomakunauru society of which the deceased was a member.

The son had insisted that in addition to her two sisters not to take any active role in their father’s funeral processions, the burial of the body was to be done on 28th November, 2006 and non other. He had in anticipation of this demands to be met, spent money and time and therefore demanded that he took charge of the funeral procession.

The plaintiff as a result of this conflict was caught in between the nephew (deceased’s son) and his two nieces. Deciding not to take sides he intervened to make peace between the brother and two sisters.

The brother having decided to bury the deceased father on Tuesday 28th November, 2006 went to the Kavieng General Hospital morgue to pick up the body. This led to the two sisters seeking the plaintiff’s assistance in his capacity as the Chief of the Clan and an uncle, to talk to their brother not to hurry with the funeral procession.

Subsequently there was a gathering at the vicinity of the morgue where all the relatives exchanged words for and against the burial of the deceased. Whilst this was going on the first defendant intervened and demanded the body be removed from the morgue immediately for burial, claiming that he was giving instructions as the Coroner.

The relatives eventually took the deceased out from the morgue not because of the first defendant’s instructions but because the plaintiff had reluctantly allowed the deceased’s son to do what he (son) wished to do. The body was then buried on that day.

On Wednesday 29th November, 2006, the police at the complaint of the first defendant arrested and charged fourteen (14) of the plaintiff’s relatives and clan members under Section 28(1)(d) of the Coroners Act and released them on K100.00 bail each, followed by the charging of the plaintiff under the same offence on 10th January 2007. This was further followed by the issuance of a District Court summons against a Dr Purewa of the Kavieng General Hospital on 2nd February 2007.

The matter came before the Kavieng District Court presided over by the first defendant on 12th January 2007 where counsel raised the issue of jurisdiction. Counsel sought to verify, based on the material facts before the Court, whether the Court in session was that of a Coroners inquest. The first defendant replied in the affirmative, stating that he (first defendant) was sitting as a Coroner Counsel then moved, based on the material facts before the Court, whether Section 7 of the Coroners Act had been satisfied.

The first defendant avoided the question and instead ruled that the Court was a Coroners Court and that he would proceed with the hearing of the charges against the defendants. Counsel having been given a ruling then sought adjournment of the case in order for the defendants to seek a review of the Magistrate’s ruling in the higher Court. The application was granted and the matter adjourned to March 2007.

ISSUES

5. The issues raised in this matter are:

1) Whether the First Defendant lawfully exercised his powers as a Coroner under Sections 7 and 10 of the Coroners Act.

2) Whether the first defendant had jurisdiction to conduct proceedings as a Coroners Court on 12 January, 2007.

(1) WHETHER THE FIRST DEFENDANT LAWFULLY EXERCISED HIS POWERS UNDER THE CORONERS ACT.

6. Section 7 of the Coroners Act reads:-

7. Jurisdiction concerning deaths.

(1) A Coroner has jurisdiction to inquire into the manner and cause of the death of a person who—

(a) was killed; or

(b) was drowned; or

(c) died a sudden death of which the cause is unknown; or

(d) died under suspicious or unusual circumstances; or

(e) died while under an anaesthetic in the course of a medical, surgical or dental operation or an operation of a like nature; or

(f) died, but no certificate of a medical practitioner has been given as to the cause of death; or

(g) died within a year and a day after the date of an accident where the cause of death is directly attributable to the accident; or

(h) died in a corrective institution, rural lock-up or police lock-up, or while a prisoner or in custody; or

(i) died in a mental hospital or other institution under such circumstances as to require an inquest under this or any other enactment; or

(j) died in such circumstances that, in the opinion of the Attorney-General, the cause of death and the circumstances of the death should be more clearly and definitely ascertained; or

(k) died, not having been attended by a medical practitioner at any time within three months before his death.

(2) Subject to this section, a Coroner shall inquire without delay into the manner and cause of a death occurring under any of the circumstances specified in Subsection (1)

(3) An inquest shall not be held after the expiration of 12 months from the date of a death, or after the expiration of 12 months from the date of finding a dead body, whichever is the later, unless the Attorney-General otherwise orders.

(4) Where, after considering any information as to the death in respect of which an inquest is by this section required to be held, the Coroner considers that no good purpose would be served by the holding of an inquest, he shall forward to the Attorney-General—

(a) a certificate in the prescribed form stating the reason for coming to that decision and showing particulars of the deceased person and the cause of his death; and

(b) a copy of any medical or post-mortem report made in connection with the death; and

(c) copies of all other reports that have come to his attention dealing with the death where any of the information acted on by him is information that he has obtained otherwise than from reports; and

(d) a copy of his own report on the death.

(5) The Coroner forwarding a certificate under Subsection (4)(a) shall send a copy of the certificate to the Commissioner of Police.

(6) This section does not relieve a Coroner from the obligation of holding an inquest where under an Act he is required to hold an inquest.

7. Section 10 of the Act reads:

10. Procedure at inquests of death.

The Coroner holding an inquest concerning the death of a person shall—

(a) examine on oath all persons—

(i) whom he thinks fit to examine; or

(ii) who tender their evidence; or

(iii) who, in his opinion, are able to give relevant evidence respecting the facts,

concerning the death; and

(b) after hearing the evidence, give his decision or finding and certify it in writing in the prescribed form, setting forth, so far as they have been proved, the following particulars:—

(i) the identity of the deceased; and

(ii) how, when and where the deceased came by his death; and

(iii) the person (if any) suspected or accused of having caused the death by wilful murder, murder or manslaughter where the deceased came by his death by wilful murder, murder or manslaughter.

8. It was submitted that the Coroners powers in our jurisdiction are over three categories of matters. The Coroner has power to inquire into:-

1. The death of a person under circumstances defend under s.7 of the Coroners Act.

2. The cause and origin of any fire by which any property is destroyed or damaged under s.17 and 18 of the Act.

3. Where a person has been reported to a member of the Police as a missing person and the police have not found the missing person within a period of 6 months after the date of the report.

9. I agree with the Counsel for the applicants that those are the only matters the Coroner has jurisdiction over.

EVIDENCE:

10. This was a case involving a death of a person. The affidavits of Nells Aingiris, Sharon Lasisi, Rayleen Peter, Nelzer Purewa, Omally Namalo, Nollen Noah, Dennah Rayse, Olsed James, Dr Tekie Purewa, Dr Alex Wangnapi and others show that a man namely Norman Sieve had died from acute renal failure due to a bladder tumour. He died on 24 November 2006. 11. All administrative matters for release of his body was done by the Kavieng Hospital Authority and the body was released to the relatives.

12. There was nothing suspicious about the circumstances surrounding Norman’s death. There were no allegations of any foul play by medical staff attending to him. There was no allegation that the patient had died while under an anaesthetic in the course of a medical or surgical operation.

13. After the patient’s body was released from the hospital to the immediate family members of the patient, it became a matter for the family members to take responsibility on how they would deal with the body. After the body was released, the relatives namely the son of the deceased Steven Norman and his sisters Sharon and Rayleen had disagreements as to what to do with the father’s body. Steven wanted to have the body buried the same day while his sisters, the applicant and others wanted to have a funeral service first and bury the body after that.

14. The dispute was between the family members of the deceased as to when and where the deceased would be buried.

15. While this dispute was going on the Coroner got himself involved in the dispute. The Coroner took the matter into his own hands and demanded to remove the body from the Morgue. Why he wanted to remove the body from the morgue is not clear to me.

16. Was he investigating or inquiring into the cause of death of the deceased? There is no evidence that he was inquiring into the circumstances of the death of Norman Sieve.

17. What seems clear to me is that the coroner allowed himself to intervene in a family dispute as to where, when and how the deceased was to be buried. These disputes are normal in our Papua New Guinea culture. In the end those disputes get settled after emotions abate.

18. As alluded to earlier and with respect I do not understand just exactly what powers the Coroner was trying to exercise. The Coroner does have powers lawfully available to him in certain circumstances but not in the circumstances described above.

19. It appears to me that the Coroner may have misunderstood his role when he joined in the dispute. In this case there was a certificate of death stating the cause of death, so what is the Coroner inquiring into if he was indeed on duty as a Coroner.

20. To answer the question whether the Coroner exercised his powers under the Coroners Act, it is obvious on the face of the evidence that he was not. If he was not, it follows that his actions and orders were unlawful.

(2) DID THE CORONER HAVE JURISDICTION TO CONDUCT PROCEEDINGS ON 12 JANUARY 2007.

21. The evidence shows that the Coroner unlawfully exercised the coroner’s powers. If anything, he abused his powers for an unlawful purpose. He abused the powers vested in him under Section 7 and 10 of the Coroner’s Act.

22. The end result is that any charges that were laid under Section 28 of the Coroners Act against all the applicants are unlawful and must be quashed.

23. Accordingly, I quash the charges as being unlawful. The bail monies of the applicants must be refunded to them.

24. Costs of the proceedings in this matter are awarded to the applicant.

____________________________

Bill N Nouairi Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants