Recognition of tikanga Māori and other cultural expectations when considering applications to view a body (2018/1)
This Practice Note applies to applications made under section 25 of the Coroners Act 20006 (“the Act”). The Practice Note is to be read in conjunction with the Act. In the case of any inconsistency, the Act is to prevail.
2. Commencement of this Practice Note
This Practice Note will apply from 22 March 2018.
The Practice Note covers the following matters:
a) The law relating to viewing, touching, or remaining with or near a body in a coroner’s custody;
b) Recognition of cultural expectations;
This Practice Note is intended to make explicit the consideration of tikanga Māori and the expectations of other cultures when considering an application under section 25 of the Act to view, touch, remain with or near a body in the coroner’s custody (“a viewing”).
The aim is to ensure that all cultural beliefs are recognised and supported.
5. The relevant law
Section 3(2) of the Act specifically recognises “the cultural and spiritual needs of family, and of others who were in a close relationship to, a person who has died”.
When a coroner has custody of a body they must have regard to ss 25 and 26 of the Act. Section 25 states:
25 Viewing, touching, or remaining with or near body in coroner’s custody
1) This section applies to a body if—
a) the responsible coroner’s exclusive right to custody of the body, under section 19, is being exercised by the responsible coroner or on the responsible coroner’s behalf; and
b) 1 or more people to whom subsection (2) applies wish to view, touch, or remain with or near the body.
2) This subsection applies to the following people:
a) members of the immediate family of the person who is, or of a person who is suspected to be, the dead person concerned:
b) representatives (whether recognised under section 22 or not) of that immediate family:
c) people chosen by that immediate family and who are, or are performing functions analogous to, ministers of religion or other people providing religious or spiritual advice, benefit, or comfort.
3) One or more people to whom subsection (2) applies may view, touch, or remain with or near the body, but only—
a) if authorised to do so by the coroner; and
b) in accordance with any conditions the coroner imposes.
When determining whether to authorise a viewing under s 25, a coroner must have regard to s 26 of the Act.
26 Matters to be taken into account under section 25(3)
(1) The coroner must take into account the matters specified in subsection (2) in determining—
a) whether to authorise a person under section 25(3) to view, touch, or remain with or near the body; and
b) any conditions imposed under section 25(3)(b) on the person’s viewing, touching, or remaining with or near the body.
(2) The matters referred to in subsection (1) are—
a) any concerns the New Zealand Police or, if a post-mortem of the body has been directed under section 31, the pathologist may have about a pathologist’s ability to determine the cause of death being limited by people viewing, touching, or remaining with or near the body:
b) all risks of contamination of evidence if the death appears to have been, or may appear later to have been, a result of conduct that constitutes a criminal offence:
c) all risks to the security of the body:
d) whether suitable staff are available to supervise visitors to the mortuary or morgue where the body is kept:
e) all risks of visitors to that mortuary or morgue being contaminated, infected, or otherwise harmed by exposure to or contact with the body:
f) whether suitable rooms and facilities for family or whānau are available at that mortuary or morgue:
g) the need to ensure compliance with all applicable legal requirements relating to health and safety:
h) any other matters the coroner considers relevant.
6. Recognition of tikanga Māori and expectations of other cultures
Currently, there is no explicit legislative requirement for coroners to consider cultural beliefs when deciding whether to authorise a viewing. Instead, coroners may consider cultural and spiritual beliefs under s 26(2)(h) as “any other matters the coroner considers relevant”.
Coroners should approach the cultural and spiritual beliefs of the immediate family and their representatives on a case by case basis.
7. Conditions for viewing
Coroners recognise that each mortuary may have different viewing facilities, which will dictate whether the applicants can remain with or near the body, or whether they can only view the body from behind glass.
The coroner may authorise a viewing with any conditions that the coroner deems necessary.
Judge Deborah Marshall
Dated: 22 March 2018