Culturally-sensitive practices following deaths in custody.

Henry Afakasi collapsed and died while serving as an inmate Auckland South Corrections Facility.

At law, custody of his body passed from the Department of Corrections/SERCO to the Police and then to the coroner. In practice, Police made the decisions at issue in the case that would follow.

Mr Afakasi was Samoan and his family wanted to ensure he was looked after in a manner consistent with fa’asamoa.

Mr Afakasi’s partner, Ms Vickers, sought judicial review of the Police’s decisions following Mr Afakasi’s death: Vickers v Attorney General [2023] NZHC 2713.  She alleged that the Police failed to adhere to appropriate practices by: stripping the body in the prison gym; not immediately informing immediate family members; not seeking input of Ms Vickers or family; placing the body in a body bag, on a gurney, and taking it to the garaging area of the prison; and presenting the body to the family in that manner.

Ms Vickers asked the Court to issue a declaration the Police had acted inconsistently with the New Zealand Bill of Rights Act 1990 (“NZBORA”).

The Police acknowledged they did not expressly consider NZBORA.

The Court held that, once the coroner was notified of the death, custody of Mr Afakasi passed to them, and they became responsible for decisions pertaining to removal and viewing of the body and recognising the family as representatives.

The Coroners Act 2006 did not permit Police to make those decisions on behalf of the coroner without specific direction; there is no operational discretion. The only statutory role the Police could undertake absent direction was an investigation as to whether the death was suspicious.

Police authorising the viewing, and subsequent removal, of the body was done without authority. The fact the duty coroner did not issue directions meant the Police actions were not lawful.

In the absence of lawful authority there can be no justification for restrictions placed on cultural practices by the Police. However, the Court could not conclude the restrictions were imposed by Police actions and not by the fact the viewing took place within a prison.

The Court held that on the evidence the Police actions were the best in the circumstances. There was no evidence suggesting Police had authority to control who was present during the scene and body examination or were aware of another suitable location for the viewing. It was clear Police did what they could to facilitate earliest possible access, and notification occurred in an appropriate timeframe.

A specific declaration was not made, but a copy of the decision was sent to the Chief Coroner.

The judgment is a useful reminder that public bodies always need to be sure where the statutory or common law authority to act comes from in each circumstance that arises.  As well, it highlights the need to consider cultural factors where possible – though, as in Vickers, there may be cases where circumstances constrain the ability to respond.

Article written by Ben Wilkins and Tim Bain

To find out more about our Coronial practice please contact; Sally Carter, Tim Bain, Ben Finn, or Steve O’Connor