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A First for a British Commonwealth Court: Australia Supreme Court Prohibits Autopsy on an Orthodox J

The Supreme Court of Australia has prohibited an autopsy on a 71-year-old Orthodox Jew, who was killed in an auto accident, in the first such action taken by any court in the British Commonwealth, Allen Rothenberg, president of the National Jewish Commission on Law and Public Affairs (COLPA), reported today.

The accident which killed Jacob Sucher occurred last September in Melbourne, where Sucher lived. The Sucher family was represented in the case by Harry Reicher, an Australian who is chairman of COLPA’s Australian chapter, with headquarters in Melbourne.

Rothenberg said that under the Australian Coroner’s Act, a death in a public place must be reported to the coroner, who is empowered to call for a post-mortem to determine the cause of death.

The Crown Solicitor’s office, which represented the coroner, contended that the coroner, under the Coroner’s Act, had virtually unchallengeable authority to perform an autopsy.

But the Australian Supreme Court ruled last September that, in view of the victim’s well-documented heart condition, an autopsy was not sufficiently necessary for the public interest to override the religious objections to the autopsy.

Rothenberg pointed out that there were important differences between U.S. and Australian legal systems. The Australian Supreme Court is in fact the trial court and its decisions can be appealed only to the House of Lords, the highest appeals court in Australia.

Rothenberg said the Crown Solicitor is roughly analagous to the office of the U.S. Attorney General. There is only one coroner for the country, in contrast to the U.S. approach, which is to have a coroner in every state. Rothenberg said he had been told the Crown Solicitor did not intend to appeal the lower court ruling.

Rothenberg said materials prepared by COLPA in developing a New York State law, the Silver Autopsy Act, passed by the State Legislature in 1983, had a major role in the successful Australian litigation.

Under that New York State law and a similar one in New Jersey, autopsies may be performed over religious objections only as part of an investigation of possible homicide or if the autopsy is deemed required by an immediate threat to public heath and safety. The law is named for Assemblyman Sheldon Silver (D. Manhattan) who directed the legislative strategy for its adoption.

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