Interfering With A Corpse (Qld)
The Queensland Criminal Code 1899 contains two offences relating to interfering with a corpse. One of these is a summary offence (an offence that is finalised in the Magistrates Court) and the other is an indictable offence (an offence that must be finalised in a higher court). This article outlines those offences and their equivalents in other jurisdictions.
Misconduct with regard to a corpse
Section 236 of the Act makes it an offence for a person to, without reasonable excuse, neglect to perform any of the duties imposed on them by law or undertaken by them in respect of the burial or other disposition of a human body or human remains. This offence is punishable by a maximum of two years imprisonment.
Under the same provision, it is a crime for a person to, without reasonable excuse, improperly or indecently interfere with a dead human body or human remains, whether buried or not. This is punishable by imprisonment for up to five years.
These offences involve a reverse onus, meaning the burden of proof is shifted onto the accused rather than falling on the prosecution as it usually does. If the accused wants to defend the charge by arguing that they had a reasonable justification or excuse for acting as they did, they bear the burden of proving this.
Why is interfering with a corpse an offence?
The principle that underlies this offence is that civilised societies are obliged to dispose of their dead decently. This is generally done by way of burial or cremation, which is organised by family members or by other people if family members of the deceased cannot be found. Bodies are expected to be disposed of intact because an insult or indignity to the dead is an insult to the living. Exceptions to this are when an autopsy is carried out or where the deceased has chosen to be an organ donor.
How is an alleged offence of interfering with a corpse assessed?
When a person is charged with interfering with a corpse, it is up to the magistrate or jury to decide whether their behaviour amounted to an unjustified interference with a corpse according to public standards of decency.
What is the standard of proof?
The standard of proof that applies to this offence is beyond a reasonable doubt. It is up to the prosecution to prove beyond a reasonable doubt that the accused interfered with a corpse. If the accused is arguing that they had a reasonable justification or excuse, they must prove this on the balance of probabilities. This means that the court must be satisfied that it is more likely than not that the accused was acting lawfully.
In Western Australia, the offence is known as misconduct with regard to corpses. It is governed by section 214 of the Criminal Code and is expressed very similarly to the Queensland offence; however, the penalties that apply are shorter, with a maximum of two years imprisonment for the indictable offence and 12 months for the summary offence.
In Victoria, there are several offences relating to interfering with a corpse. These are offensive conduct involving human remains, sexual activity with the corpse of a human being and removal of body parts from the corpse of a human being.
In New South Wales, section 81C of the Crimes Act 1900 contains the offence of misconduct with regard to corpses, which carries a maximum penalty of two years imprisonment.
In the ACT, section 48 of the Crimes Act deals with misconduct relating to corpses.
If you require legal advice or representation in any criminal matter, please contact Armstrong Legal.