Interference and indignity

Previous posts in this blog have highlighted questions about post-mortem rights, including offence to a deceased person's reputation and notions of dignity for dead celebrities. How does law treat the people who are no longer alive, in particular their remains? (Indefatigable readers will recall my impatience with nonsense from quantum mystics such as Ervin Laszlo about those who are "no longer living in the familiar form in this world but are alive nonetheless" and can therefore be contacted for two way communication via a valve radio).

The ABC, under the heading 'Drug user escapes jail on corpse charge' - I shudder to think of the expression used by the local tabloids - today reports on an obscure charge of 'offering an indignity to a corpse', distinct from the more usual conviction for 'interfering with a cadaver', apparent in for example R v Ali [2001] QCA 331, R v Surrey [2005] QCA 4, R v Jamie Chant [2009] NSWSC 290, Jones v The Queen [2009] HCA 17 and R v Youkhana [2004] NSWCCA 412.

The ABC states that -

A drug user who rummaged through a Sydney woman's unit after finding her body has escaped a jail sentence.

Chady Wazir was charged after an inquest into the death of 59-year-old Joyce Germain whose body was found in her Darlinghurst unit in 2006.

The cause of her death was not determined because the body was decomposed.

Wazir, 31, who threw blankets, a pillow and a knife onto the body after finding it, pleaded guilty to charges of offering an indignity to a corpse and remaining in a building with intent to steal.

He told police he checked Ms Germain for signs of life but found none, so sat next to her body for 10 minutes before becoming angry and screaming.

Not quite the companion you'd desire, whether living or dead.

The court heard that nobody in Australia has been charged with offering an indignity to a corpse since the 1850's, when a fine of one shilling was imposed for the offence.

Magistrate David Heilpern told Wazir that the way that he had dealt with Joyce Germain's body was "reprehensible and an insult to her".

The SMH coverage notes that -

During submissions to the court on Friday, Mr Heilpern was told by both prosecution and defence solicitors that the only sentencing reference to the charge of "misconduct with a corpse - did offer indignity to a dead human body", dated back to 1857.

Details of the historic case were not provided, only that the penalty was a fine of one shilling.

"The offence is an unusual one," Mr Heilpern said.

"Nobody has been charged with the offence for, what I can find, well beyond a century and indeed the DPP (Director of Public Prosecutions) has alluded to a case from the 1850s."

Mr Heilpern went on to provide his interpretation of the offence.

"To do something with or to the body that does not involve interfering with the body, but involves doing something that members of the community find insulting, to the body," he said in way of explanation.

Overseas case law regarding the meaning of 'indignity to a corpse' includes R v Mills (1993) 4 SCR 277 (SCC) and R v Moyer (1994) 2 SCR 899 - two Canadian cases where indignity is synonymous with interference.