'Determining A Suicide Under Australian Law' by Stephanie Jowett, Belinda Carpenter and Gordon Tait in (2018) 41(2)
UNSW Law Journal 355 comments
This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.
The authors argue
Coroners’ findings contribute to national suicide statistics in Australia. Indeed, coroners are presently the only legal persons who make routine determinations of suicide so that it may be coded as such. As a result, the process by which coroners make determinations of suicide is critically linked with policymaking in public health and mental health, as well as planning and funding of suicide prevention strategies. Issues surrounding coronial determinations of suicide have been the subject of increased scrutiny and commentary in Australia since the Australian Senate’s report, The Hidden Toll: Suicide in Australia (‘The Hidden Toll’), revealed the extent of underreporting of suicides. As recently as 2014, a report by the Coronial Council of Victoria expanded on the ways in which the law relating to suicide contributes to that problem. It has been suggested that key reasons for underreporting are inconsistencies in coronial practices and a reluctance by coroners to make explicit findings of intent.
Given that coroners are the only persons tasked with making routine legal determinations of suicide in Australia, the process by which coroners come to such a finding is an important yet relatively under-researched and under-analysed element of this process. To date, most research to investigate the process of suicide determination by coroners has focused on the output of coronial decision-making in the form of secondary analysis of coronial data. In contrast, this article examines the legislation, case law and secondary literature relating to suicide determinations in all Australian jurisdictions to determine precisely what law informs coroners in their suicide deliberations.
As the first comprehensive review and analysis of the Australian law in this area, this article builds on recommendations made by the Coronial Council of Victoria and the Senate Community Affairs References Committee in their report, The Hidden Toll. It suggests that a major barrier to consistent and accurate suicide reporting is the lack of clarity in the law guiding coroners in their practice. Specifically, that the impediments to uniform approaches to determinations of suicide may be caused by practical barriers, including requirements to hold an inquest or make a definitive finding within the binary of suicide/not suicide, and interpretational barriers, including what constitutes a suicide and the applicable standard of proof. It concludes that a severely underdeveloped legal framework for the identification of suicide in Coroners Acts is compounded by a lack of definitional clarity, and a subsequent over-reliance on English coronial law and Australian criminal law, both of which rely on a standard of proof beyond that required within the coronial jurisdiction. It is recommended that clarification of the law as well as the publication of inquest findings would be a minimum required for Australian coronial law to develop in this area.
To determine the law applicable in this area, the approach taken in this review is multifaceted. First, the Coroners Acts in each jurisdiction have been searched for any mention of suicide or intent as well as any sections relevant to when findings can be made and what they may contain. The websites of Coroners Courts have also been searched for any other sources of official guidance. Second, legal databases have been searched for case law relating to determinations of suicide under Australian law. Third, secondary literature has been reviewed in the form of scholarly academic literature as well as key coronial texts. Due to the difficulty of accessing inquests online, details from inquests have generally been included only where the case was raised in the literature. For this reason, emphasis is given to discussion of the law in selected inquests, such as Tyler Cassidy and Rebekah Lawrence.It is important to note that within Australia, inquests are notoriously difficult to access and search.[9] As a consequence of this, there exists no readily available pool of relevant case law, experience, and precedent related to findings of suicide for the coroners to access and apply within their own decision-making processes.
