Evans v Northern Territory Coroner - [2011] NTSC 100

Evans v Northern Territory Coroner [2011] NTSC 100

PARTIES: EVANS, Shaun

v
NORTHERN TERRITORY CORONER

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 149 OF 2011 (21140324)

DELIVERED: 6 DECEMBER 2011

HEARING DATES: 1 DECEMBER 2011

JUDGMENT OF: RILEY CJ

CATCHWORDS:

CORONER – objection to autopsy – Coroner’s duties, responsibilities and powers – unexplained death of an infant – Aboriginal culture and law – interests of the family to be weighed against the public interest.

Coroners Act s 12(1), s 14(1), s 14(2), s 34(1)(a)(iii), s 34(1)(a)(v), s 34(2) and s 35(3)

Re Unchango; Ex parte Unchango

(1997) 95 A Crim R 65; Krantz v Hand [1999] NSWSC 432; Horvath v State Coroner of Victoria [2004] VSC 452; Pope and Pope v State Coroner [1998] SASC 6526; Magdziarz v Heffey [1995] VSC 201; Ronan v State Coroner (WA) [2000] WASC 260; Price v Johnstone, unreported, Supreme Court of Victoria, 17 June 1998; Green v Johnstone [1995] 2 VR 176, applied.

Wuridjal v The Northern Territory Coroner (2001) 11 NTR 202; Geoffrey Raymond-Hewitt v Northern Territory Coroner [2011] NTSC 94, followed.

REPRESENTATION:

Counsel:

Plaintiff: A Wyvill QC

Defendant: Dr I Freckelton SC and Dr P Dwyer

Solicitors:

Plaintiff: North Australian Aboriginal Justice Agency

Defendant: Solicitor for the Northern Territory

Judgment category classification: B

Judgment ID Number: Ril 1113

Number of pages: 13

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

Evans v Northern Territory Coroner

[2011] NTSC 100

No 149 of 2011 (21140324)

BETWEEN:

SHAUN EVANS

Plaintiff

AND:

NORTHERN TERRITORY CORONER

Defendant

CORAM: RILEY CJ

REASONS FOR JUDGMENT

(Delivered 6 December 2011)

This application arose out of the sudden and tragic death of a young child at Borroloola. Following a preliminary investigation, and having taken expert advice, the Coroner determined that it was necessary for a direction to be given to a medical practitioner to perform an autopsy on the body of the deceased child. The applicant is the father of the deceased child and he sought an order pursuant to s 23(3) of the Coroners Act that an autopsy not be performed. At the conclusion of the hearing I made an order in those terms. These are my reasons for so doing.

The circumstances of the death

The child was born on 3 October 2011 at 40 weeks gestation. He was delivered by emergency caesarean section. His birth weight was described as excellent as were his Apgar scores. Breastfeeding was successfully established and the child was discharged from hospital on 7 October 2011. A checkup by the Remote Area Nurse on 15 November 2011 revealed no medical problems.

In a statement provided to Police the mother of the child advised that the deceased was the fifth child of herself and her husband. The other children were all healthy. On 22 November 2011 the husband was in Darwin on business. The mother stated that she and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Evans v Northern Territory Coroner

Details

AGLC: Evans v Northern Territory Coroner [2011] NTSC 100
Case: [2011] NTSC 100
Decision Date: 06/12/2011

CaseChat Overview and Summary

In Evans v Northern Territory Coroner, the deceased was a child who died suddenly and unexpectedly at Borroloola. The father, Shaun Evans, objected to an autopsy on behalf of himself and his family, due to the family's Aboriginal cultural and spiritual beliefs. The Coroner had determined that an autopsy was necessary to ascertain the cause of death, but Mr Evans sought an order from the Supreme Court of the Northern Territory that no autopsy be performed. The Court was required to balance the cultural beliefs of the family against the public interest in determining the cause of an unexplained death. The Court considered that the cultural beliefs of the family were genuinely held and that performing an autopsy would compound the grief and distress already being suffered by the family. The Court also considered that the likelihood of the autopsy providing any additional information as to what actually caused the death of the child was quite limited. In all the circumstances, the Court ordered that no autopsy be performed.

The legal issues before the Court were whether the exercise of the discretion to make an order that no autopsy be performed is one that is unfettered; whether each case should be decided individually on its own facts and circumstances; and whether the genuinely held religious and cultural beliefs of the family of the deceased are to be given weight. The Court found that the discretion is unfettered and that each case should be decided individually on its own facts and circumstances. The Court also found that the genuinely held religious and cultural beliefs of the family of the deceased are to be given weight, but are not determinative. The Court held that in this case, the interests of the family outweighed the public interest in determining the precise cause of death and ordered that no autopsy be performed.

Orders