Gonzales v State Coroner of New South Wales

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.

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.

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.

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.

Mahmoud Hawi died at 5.00 pm yesterday, just over 24 hours ago.

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.

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.

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.

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.

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.

I have already made Orders 1 and 2 in accordance with the Summons. I make the following further orders: