Barrett v The Coroner's Court of South Australia & Anor [2011] HCATrans 165 (10 June 2011)

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Barrett v The Coroner's Court of South Australia & Anor [2011] HCATrans 165 (10 June 2011)

Last Updated: 16 June 2011

[2011] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A2 of 2011

B e t w e e n -

LISA JANE BARRETT

Applicant

and

THE CORONOER’S COURT OF SOUTH AUSTRALIA

First Respondent

THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA

Second Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 10 JUNE 2011, AT 12.23 PM

Copyright in the High Court of Australia

MR I.R.L. FRECKELTON, SC: May it please the Court, I appear with my learned junior, MS A.E. FORSYTH for the applicant. (instructed by Jamison & Associates)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS A.D. HARRIS for the second respondent. There is a submitting appearance for the first respondent. (instructed by Crown Solicitor (SA))

MR FRECKELTON: Your Honours, this case raises profoundly fundamental issues in relation to the commencement of life. It does so in the context of the obligation of a coroner to hold an inquest under section 21 of the Coroners Act 2003 (SA) which mandates the holding of an inquest into reportable deaths which, amongst other things, include unexpected, unnatural, unusual, violent, and deaths of unknown cause. However, the ramifications of the interpretation of the meaning of “life” under the “born alive” rule, as Justice Peek identified in the South Australian Full Court at paragraph 132 of his judgment, radiate out right across the law in many different contexts beyond the coronial including, amongst other things, criminal matters and probate matters.

KIEFEL J: You refer to it as a rule, I think, also as a presumption, in your written submissions.

MR FRECKELTON: Yes, your Honour.

KIEFEL J: What is its status in common law in Australia?

MR FRECKELTON: It is most properly, in our submission, to be referred to as a rule at common law. The presumptive issue is in terms of the presumption that babies are born dead but the - - -

KIEFEL J: Which courts have recognised it?

MR FRECKELTON: The presumption or the rule?

KIEFEL J: However it is described.

MR FRECKELTON: Let me go to the rule. We would like to concentrate on the rule if we could, your Honour. The rule has been accepted and applied for in excess of two centuries; the rule being best formulated in the modern era by Chief Justice Spigelman in Iby at paragraph 27 where his Honour said that it:

consists of two distinct components. First, that the foetus must have completely left its mother’s body (although the umbilical cord did not have to be cut . . . Secondly, the child must be alive at or after birth - - -

FRENCH CJ: In this case the rule is a common law principle which informs the construction of the term “death of a person” is it not, under the Act?

MR FRECKELTON: Yes, that is so, your Honour.

FRENCH CJ: Is it correct to say, as Justice White said at paragraph 26 on page 30, that:

both parties accepted that the issue of whether the death of the infant was the death of a person for the purposes of the Coroners Act was to be determined by reference to the “born alive” rule.

MR FRECKELTON: Yes, it is correct, your Honour.

FRENCH CJ: So we are not in issue on the question of principle?

MR FRECKELTON: No.

FRENCH CJ: The question is then, is it not, one of characterisation based on essentially undisputed primary facts?

MR FRECKELTON: Yes, if primary facts are that the baby was born without respiration, heartbeat, pulse, movement or sound - in the sense of crying - the parties accept that the common law rule, known as the “born alive” rule, applies to determine whether a baby is born alive and the parties further accept the case law that has evolved over more than two centuries that the question to be posed is whether there is a sign of life or of vitality exhibited by the baby. If so, the baby is born alive.

FRENCH CJ: That then was the question of the characterisation of the state of the baby, having regard to the existence of the pulseless electrical activity in this case.

MR FRECKELTON: We put it in two ways: one, a half a step back from there, your Honour. It comes down to what constitutes a sign of life as a matter of law and then also whether, if the only “sign” that is exhibited is pulseless electrical activity, that is sufficient to constitute a sign of life.

KIEFEL J: Both of those depend essentially upon a question of evidence and fact, that is, what does a pulseless electrical activity indicate – sufficiently indicate as a fact?

MR FRECKELTON: We say it is more than that, your Honour. It certainly requires a determination of fact as to one, whether there was pulseless electrical activity and what that means, but it also requires next a determination as to whether whatever pulseless electrical activity is, it fits as a matter of law within being a sign of life and then it requires reflection, perhaps related to that, on what is a sign of life as a matter of law. Those last two are very much connected. We say those are both matters of law because as, I think it was Justice Peek put it, a sign of life is a term of legal art. So it is in those circumstances the way that we put it is that these are very fundamental issues of law which, of course, require decision making as to fact.

Now, what we say is that by the way in which the decision was made by the Coroner and then by the Full Court, there has been an erroneous changing of the definition of “sign of life”. This has to be put carefully, and we acknowledge that immediately, because no one has ever purported, for good reason, to define what is a sign of life. However - - -

FRENCH CJ: You would not expect, would you, to get a grant of special leave to advance the proposition that pulseless electrical activity is not a sign of life?

MR FRECKELTON: No. What we would expect, with respect, your Honour, is that we get special leave to argue that the definition, in essence, of “sign of life” has been changed by incorporation within it “pulseless electrical activity”. Let me explain. For over two centuries, the law has remained relatively static in this area. The courts have held that heartbeat and pulse, not surprisingly, and respiration are signs of life. In other decisions, it has been held that movement and crying are signs of life. We can set those latter two probably aside because, naturally, heartbeat and respiration are going to be necessary for movement and crying.

So what the courts have done for other two centuries is to focus upon whether blood is coursing through the body and whether breath is able to be taken. This is hardly surprising but it is absolutely fundamental because what the courts have looked to is whether there is a straightforward, fundamental indicium of life exhibited by an infant after separation from the mother.

FRENCH CJ: Would you accept, though, that this is a category of states, the content of which may evolve according to technology and understanding of the workings of the human body, that some circumstances, some states thought to be irreversible are no longer irreversible and that does not necessarily involve a fundamental change in the notion of signs of life, it is just expanding our understanding of what we can do.

MR FRECKELTON: Yes, in principle, your Honour, we do accept that the contributions of evolving science and medicine are going to cause us to reflect differently on what constitutes life. However, I would like to make a couple of points - - -

FRENCH CJ: The signs of life.

MR FRECKELTON: Signs of life, I am sorry, signs of life. First of all, there is a distinction to be drawn between the criteria for life and the criteria for death. We accept that. The Death (Definition) Act – it has to be carefully said - in South Australia is representative of the law throughout the remainder of Australia requiring irreversible cessation of all brain function or irreversible cessation of circulation.

FRENCH CJ: That is for certain purposes, is it not?

MR FRECKELTON: It is said to be for all purposes in South Australia but for certain purposes in other states. For this purpose, what I am drawing to the Court’s attention is that is the position in relation to death. His Honour Chief Justice Spigelman has contended that one needs to be very careful in terms of mixing criteria for death with criteria for life and has denounced an attempt to do otherwise as meretricious symmetry, a quest for that. So we say that one has to be a little cautious in terms of importing those sorts of concepts too readily to the issue of whether life comes into being in the first place. That is a first response to your Honour.

The next is that the courts have focused on the straightforward indicia of life for good and sound reasons and they are the kinds of indicia of life that could, in principle, evolve, but they are not going to do so readily because they are so fundamental in terms of the heart actually beating so as to generate blood around the body and respiration taking place so as to enable oxygen to be carried by the blood. In fact, while we accede to what your Honour says and we respect the point made in the Full Court, we cannot readily identify circumstances which could lead to another form of sign of life.

In the context of pulseless electrical activity, this really matters because of its very essence the evidence discloses in this case that we all have electrical activity in our heart. Pulseless electrical activity by its very name and essence is electrical activity insufficient to generate a beat of a heart or the pulse consequent upon that. It is mere electrical activity which is taking place which is not going to lock into any form of significant life-giving function in the sense of either respiration or heartbeat. That is why it is profoundly different.

That is really why we come to this Court because to include within the notion of “life” and the rubric of “signs of life” something that is so significantly removed from those fundamental aspects of life function as heartbeat and respiration, never mind movement and crying which are consequent upon those too, is, we say, an unwarranted, dangerous and radical extension of the concept of “sign of life”. It is going to radiate - - -

FRENCH CJ: Why do you say it is dangerous?

MR FRECKELTON: I say it is dangerous because, not just because it is new or novel, but because what it involves is the notion that precursors to those other indicia of life that have been accepted for 200 years are going to be accepted as sufficient for life itself. It is a dramatic change to the common law and we say it is not based in good, sound, common sense or reason.

KIEFEL J: But there was evidence about what pulseless electrical activity is to be taken as representing in relation to life. There is medical evidence as to it.

MR FRECKELTON: There was. The medical evidence was - especially from Professor Wheaton, from his point of view it is not a sign of life; from Dr Khong, the forensic pathologist, and from Professor Pepperell they both concluded that this was a death that occurred prior to the birth process. In fact, if one has regard to the medical evidence, there is nothing that is consistent with pulseless electrical activity constituting a sign of life.

FRENCH CJ: Those aspects of the expert opinions involve conclusionary statements in a law fact complex, do they not?

MR FRECKELTON: They do and that is why for the first part of our argument we should like to concentrate upon the notion as a matter of law of “sign of life”. Our third argument in the proposed notice of appeal relates to whether there is any support whatever from the expert witnesses for characterising pulseless electrical activity as a sign of life. I would prefer, if I could, to just conclude on the first argument, which we say is the key one in this regard, and then move to a second one which is briefly to be stated but seems to have been significant from the perspective of both the Coroner and Justices White and Peek in terms of the potential for resuscitation.

To summarise as to the first argument, what we say is that the common law concept of the “born alive” rule is a settled, stable and sound one. It has been enunciated in slightly different ways which had, in essence, the same meaning requiring a clear sign of life or a clear sign of vitality. Only four, maybe five examples of that have been identified for in excess of 200 years. Pulseless electrical activity would be a sixth and it is significantly at variance from the remaining five and while science and medicine evolve and it is important for our law to take account of those, we say that there was no legitimate reason as a matter of principle or law to include something so conceptually different as mere electrical activity insufficient to generate a heartbeat or a pulse within this precious group of indicia of life.

KIEFEL J: In the way in which you have approached it, do you say that the question of what pulseless electrical activity conveys about life is one to be determined as a question of law?

MR FRECKELTON: We put it in terms of what constitutes a sign of life, your Honour.

KIEFEL J: I think you have addressed it as a question of law?

MR FRECKELTON: We say that is a question of law – what is a sign of life, yes.

KIEFEL J: Whether pulseless electrical activity is a sign of life is a question of law or mixed fact and law?

MR FRECKELTON: We say, forgive me for giving you two answers but they are quick ones. By incorporating pulseless electrical activity within the rubric of “sign of life” adjusts and changes the concept of “sign of life” and that is a matter of law. By determining that pulseless electrical activity is itself a sign of life is a question of mixed fact and law. That is how the Coroner regarded it. We say, correctly.

KIEFEL J: Do you still rely in your draft notice of appeal - the third ground is the absence of medical evidence to support the determination that sign of life can be found by reference to pulseless electrical activity - do you still contend for that?

MR FRECKELTON: We do that, your Honour, because while we do not put to the Court that the presumption that all babies are born dead remains part of Australian law, we do say that it is incumbent upon a coroner to only make a finding that there is a sign of life and, therefore, a living person, upon the basis of evidence. The evidence in this case constituted that which Nurse Barrett saw and did and the threefold categories of medical evidence, the paediatric cardiologist, the gynaecologist and the forensic pathologist. None of those said that this was a sign of life so far as they were concerned. So, relying upon the cases such as Taylor, which is in another domain, we accept that readily. What we put to the High Court is that this was a highly problematic decision of the Coroner without warrant, contrary to, not compatible with, the only expert evidence that was before him.

KIEFEL J: What we are concerned with here, of course, is the Coroner’s determination and the Full Court’s consideration - the question of jurisdiction. In the course of the coronial enquiry that is envisaged, there would have to be a finding one way or the other about whether there was life?

MR FRECKELTON: Yes, that is so, your Honour. There has been an assumption of jurisdiction, however, by the Coroner and it is - - -

KIEFEL J: But that would not conclude a jurisdictional fact. It would still have to be facts found in relation to the death or not.

MR FRECKELTON: Yes, that is so, your Honour, but we come here on the point of principle - - -

KIEFEL J: I appreciate that. I am looking at the practicalities of the matter.

MR FRECKELTON: Quite so. But we say in this instance no coronial inquest as a matter of jurisdiction should be convened because there is not a dead person into whom to inquire. Could I raise the second matter in our proposed notice of appeal then, what we should like to call the resuscitation fallacy? It is quite clear that the Coroner and also Justices Peek and White, Justice White at paragraph 44 and Justice Peek at paragraphs 103 to 106 were influenced in their characterisation of pulseless electrical activity by the proposition conceptually that a person with pulseless electrical activity could be resuscitated. We say that in the analysis undertaken by all three of those judicial officers a logical and fundamental error was made and it is a telling one.

It goes in this way. What we say is that if a baby is born without pulseless electrical activity and no other signs or indicia of life, the baby is not alive. However, through the heroic efforts of ambulance personnel and others, it is possible - I almost said “conceivably”, but that would be a bad word to use in these circumstances – it is possible that the baby could be resuscitated. What we say is that if the consequences of the work of the medical personnel are such that they prompt a transmogrification from pulseless electrical activity to electrical activity generating a heartbeat or a pulse at that stage there is life. You do not reason back. You do not say because that was successful, there was life when there was pulseless electrical activity. You say from the moment that there was an unequivocal

sign of life, like heartbeat or pulse or movement or whatever, that is when life starts, after extrusion from the mother.

FRENCH CJ: I think your time is up, Mr Freckelton.

MR FRECKELTON: Thank you, your Honour. Could I just summarise this because it is really important. Should there be resuscitation later on then what one looks to as to whether there has been death is the definition of “death” and one must not mix up the criteria for deciding death under the Death (Definition) Act and the criteria for determining whether there is life pursuant to the “born alive” rule and specifically what constitutes a sign of life as a matter of law. Thank you.

FRENCH CJ: Thank you. We will not need to call on you, Mr Solicitor.

In this matter the applicant attended the delivery of a child on 16 July 2007 in the capacity of midwife. The child became caught in the birth canal, giving rise to hypoxia which proved to be fatal. Some time after the child was delivered a pulseless electrical activity of 15 beats per minute was detected when ECG equipment was applied to the child.

The Deputy State Coroner determined that the Coroner’s Court had jurisdiction to hold an inquest into the death of the child. The Court may do so where there is a “reportable death”, which is defined by reference to the death of a person. The applicant’s application for judicial review of that decision was dismissed by the Full Court of the Supreme Court of South Australia.

The Full Court and the Deputy Coroner concluded that pulseless electrical activity evidenced signs of life in the child for the purposes of determining whether the child was born alive within the common law understanding of that concept and was thus “a person” for the definition of “reportable death” in s 3 of the Coroners Act 2003 (SA) thus enlivening the jurisdiction of the Coroner’s Court.

The applicant challenges that conclusion. She does so in circumstances where the medical evidence as to the primary facts was uncontradicted. The question was one of characterisation of primary facts relating to the state of the child at birth. It does not, in our opinion, raise a question of the general principle underlying that characterisation. We do not consider that the concept of “born alive” is extended by it. It is necessary also to bear in mind that the question raised on the application is one of jurisdiction which precedes a full inquiry into matters relevant to the question at issue.

As to the applicant’s reliance upon a presumption against life at birth, if that presumption be available at law it is evidentiary only and could not survive the evidence tendered. Special leave will be refused.

Mr Solicitor, do you seek costs?

MR HINTON: I do, your Honour, yes.

FRENCH CJ: Can you resist that, Mr Freckelton?

MR FRECKELTON: It is a matter of jurisdiction for the Court. We have asserted that the issues raised were very significant ones and that the applicant is a person of limited means.

FRENCH CJ: Thank you. Special leave will be refused with costs.

AT 12.51 PM THE MATTER WAS CONCLUDED