For the second time in seven months, the Supreme Court has prevented an autopsy being performed on an Aboriginal person for cultural beliefs, first in Raymond-Hewitt v Northern Territory Coroner [2011] NTSC 9417 and now in Evans v Northern Territory Coroner [2011] NTSC 100. In both cases, the public interest in knowing the cause of death had to be weighed against the public interest in giving deeply held spiritual and cultural beliefs proper recognition and respect, with the latter sometimes outweighing the former.

In Evans, a baby had inexplicably died in its sleep without suspicious circumstances. Riley CJ rejected the Coroner’s submissions that religious and cultural beliefs are treated secondarily under the Coroners Act 1993 (NT) (at [20]) and summarised the principles in applications under s 23(3) that an autopsy not be performed, saying (at [18], [20]):

(a) the exercise of the discretion to make an order that no autopsy be performed is one that is unfettered;
(b) each case should be decided individually on its own facts and circumstances;
(c) the exercise is one of balancing competing interests;
(d) it is appropriate to take into account the likelihood, and extent, of useful information being obtained from the autopsy for the purposes of the Coroner’s investigation;
(e) it is appropriate to take into account the genuinely held religious and cultural beliefs of the family of the deceased, although those beliefs are not determinative;
(f) the obligations imposed upon the Coroner under the relevant legislation and the capacity of the Coroner to fulfil those obligations in the absence of an autopsy are to be taken into account although those matters are not determinative;
(g) the weight to be accorded a particular matter is to be assessed in light of all the circumstances, not by reference to any preconceived notion that it is more or less important than other considerations.

His Honour also listed factors which had been considered in allowing autopsies to proceed (at [19]), such as:

(a) where there is evidence pointing to foul play, or suspicious circumstances surrounding the death, which would need to be investigated in order to ensure execution of the due process of the law;
(b) circumstances where there may be a possibility of an outbreak of a serious infection, which would need to be investigated in order to cater for public health interests;
(c) cases where it may be in the interests of the immediate family of the deceased to determine whether there is some genetic predisposition to serious disease that might possibly be treated or detected in its early stages if the possibility of its onset is known;
(d) cases where there is a real issue as to an entitlement to benefits of infant beneficiaries unable to assent to the bringing of an application and it is necessary to resolve the issue for an autopsy to be performed; and
(e) cases where a congenital problem may be disclosed which may be of benefit in preventing other deaths.

Here, an autopsy was unlikely to provide any additional information as to what caused the death of the child, although it may have done so, and the cultural beliefs were genuinely held (at [25]).

Cameron Ford
Barrister; Editor-in-Chief, NTLR; Executive Editor, NTLJ

*Reproduced here without footnotes. To read the full case note go to (2012) 2 NTLJ 178 at 185.