Coroners Act 2006 – police actions exercised in accordance with procedures – New Zealand Bill of Rights Act 1990 – freedom of thought, conscience and religion – manifestations of religion and belief – rights of minorities
Vickers v The Attorney-General  NZHC 2713 per Powell J.
On 14 April 2016, Henry Afakasi collapsed and died of natural causes while in Auckland South Corrections Facility, having been sentenced to 14 years’ imprisonment in late 2014 for serious drug offending.
Originally from Samoa, Afakasi was only 38 when he died. He left behind a partner, a young son and a grieving aiga (family). When notified of Afakasi’s death, his aiga wanted to ensure the deceased was looked after in a manner consistent with fa’asamoa (the Samoan way of life).
Because he was in custody, Afakasi’s body remained at the prison, with custody passing from the Department of Corrections/Serco to the Police and then to the coroner. The Police apparently continued to make the decisions while Afakasi’s body remained at the prison.
His partner Adrienne Vickers and other members of his family allege the parties failed to adhere to Samoan cultural and religious practices.
Vickers commenced proceedings, not seeking costs but instead hoping that “the guidance the court can give to the Crown as to how [sudden death] should be dealt with may prevent the same trauma being experienced by another family”. She sought a declaration that the incidents were the result of a failure to consider the rights of Afakasi and his family – rights that were guaranteed by ss 13, 15 and 20 of the New Zealand Bill of Rights Act 1990.
Sergeant Arrowsmith, who handled the process for the Police, was said to have followed the Police’s sudden death instructions in line with his obligations under the Coroners Act 2006. This mandated the reporting of deaths in custody to the Police, after which Afakasi’s body was transferred to the coroner.
Arrowsmith’s power for authorising body removal and family access remained unclear. Neither s 19A nor s 25 of the Coroners Act could grant authority for post-examination actions and the law attributed these actions to the coroner’s role and powers. Responsibility for directing the Police on body removal and family notification rested with the coroner, who could have issued standardised directions, aligning with the Chief Coroner’s expectations and the purpose of the Coroners Act.
All subsequent decisions about Afakasi’s body, such as removal and viewing permissions, were the responsibility of the coroner, and the Police had no independent authority in these matters. The duty coroner, however, did not issue any directions before decisions were made regarding Afakasi’s body. As such, while Arrowsmith acted within prison security constraints, he lacked authority for bodily handling and family notification. While Arrowsmith had no justification for placing restrictions on the aiga’s practice of fa’asamoa, Powell J said it was impossible to conclude whether those restrictions were imposed by Arrowsmith or as a result of the body being located within a prison.
Powell J recommended there should be standard guidance on handling culturally sensitive cases, “to ensure that the cultural and spiritual needs of the deceased and their wider family, regardless of cultural background, are appropriately considered and provided for to the extent that circumstances allow”.
Applicable principles: death in custody – cultural sensitivity – fa’asamoa – body removal – non-interference with a body – whether power for authorising body removal, family access within prison rested with Police – family notification – privacy and human rights.
Held: A specific declaration in relation to what occurred on the night of Afakasi’s death was not necessary or appropriate. A copy of the judgement was referred to the Chief Coroner.
Jamie Dierick is a law clerk working for an Auckland criminal defence barrister.