This decision concerned an application for a ruling of no case to answer in relation to a historical case of breach of duty with respect to a corpse, contrary to s 236 of the Criminal Code. It was argued that the law did not impose such a legal requirement upon the accused. The court found that the common law imposed a duty to properly dispose of or initiate the proper disposal by others of the dead and that duty had not been extinguished by statute. The application was dismissed.
27 April 2018
The accused was charged with manslaughter (“Count 1”) and a breach of duty with respect to a corpse, contrary to s 236 Criminal Code (“Count 2”). , . The charges arose out of events in 1996. . The accused’s uncontradicted evidence was that she gave birth while on the toilet at home, having previously been unaware she was pregnant. No one else was present. The accused wrapped the dead infant and left it outside the door of a neighbour. . The following day, the upper torso of the infant was found in the driveway of another house in the neighbourhood, in circumstances suggesting dogs had moved it about the area. .
The Crown alleged that the infant was born alive but delivered head first into the toilet bowl. It was not then moved promptly to a position where it could breathe air. .
By Count 2, the accused was charged that she “without lawful justification or excuse, neglected to properly dispose of a human being or human remains, which she was required to do by law”. . Defence counsel submitted there was no case to answer because there was no such legal requirement upon her. . His Honour found that, although the Code imposes no such duty, the common law had not been expressly or impliedly extinguished by the Code or other legislation (e.g. Burials Assistance Act 1965). –.
Justice Henry observed that the common law requires the proper and decent burial of the dead: Doodeward v Spence (1908) 6 CLR 406, 417. His Honour acknowledged the underlying public health concerns had changed over time but found that “there must remain a duty to at least initiate that process in order that the dead are properly disposed of”. –. As at 1996, his Honour concluded, the common law imposed a duty to properly dispose of or initiate the proper disposal by others of the dead by either burial, cremation, or moving the body for the purposes of its examination or safe and decent storage prior to burial or cremation. .
In circumstances where only the accused was aware of the infant’s death, his Honour inferred that the law imposed on her a duty to properly dispose of the body. . The application for a ruling of no case to answer on Count 2 was dismissed.
K W Gover of Counsel