Morant v Ryan[2023] QCA 109

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 10 June 2022, the primary judge refused the applicant’s application for an order that an inquest be held into the death of his step-mother.
2. [2]
   The applicant seeks leave to appeal that refusal.  Should leave be given, the applicant relies on five grounds of appeal.  First, jurisdictional error.  Second, error of law as to the standard of proof.  Third, no evidence to justify the decision.  Fourth, the decision was not the “correct and preferable” decision.  Fifth, the primary judge took into account irrelevant considerations in making the decision.

Background

3. [3]
   Prior to her death, the deceased endured persistent and long-standing back pain, which was debilitating and adversely affected her quality of life.  As a consequence, the deceased had investigated ways of taking her life and had expressed an intention to commit suicide.  She had also previously attempted suicide.
4. [4]
   On the day prior to her death, the deceased purchased a small, petrol generator.  Her husband assisted her to place the generator into their vehicle.  Upon returning to their home, the deceased’s husband removed the generator from the vehicle and unpacked it from its box, before assisting the deceased to place it back in the deceased’s motor vehicle.
5. [5]
   On 30 November 2014, the deceased’s husband attended church.  The deceased remained at home.  Upon return from church, the deceased was not at the residence.  Her motor vehicle was not at the property.  The deceased’s husband also found a note written by the deceased in contemplation of her death by suicide.
6. [6]
   Later on the evening of 30 November 2014, police located the body of the deceased in her motor vehicle.  It contained the generator, although it was not operating at that time.  An autopsy was conducted and the cause of death listed as acute carbon monoxide poisoning.
7. [7]
   Following a police investigation, the deceased’s husband was charged with counselling and aiding the deceased’s suicide.  A jury found the deceased’s husband guilty of those offences.
8. [8]
   The deceased’s husband appealed that conviction to this Court.  The appeal was dismissed on 19 June 2020.
9. [9]
   On 14 July 2020, the applicant applied to the Coroner’s Court of Queensland for an inquest into the death of the deceased.  That application was made on the basis that the applicant believed the deceased was not alone when she died, and that she must have been aided at the scene by a person or persons unknown.
10. [10]
    On 30 July 2020, the Deputy State Coroner issued formal findings, pursuant to s 45 of the Coroners Act 2003 (Qld) (“the Act”), in relation to the death of the deceased.  Relevantly, the Deputy State Coroner found the deceased died from carbon monoxide poisoning and that her death was due to suicide.
11. [11]
    In the letter advising of that decision, the Deputy State Coroner stated:

“I do not propose to hold an inquest as the coronial investigation has revealed sufficient information to enable me to make findings about Ms Morant’s death and there does not appear to be any prospect of making recommendations that would reduce the likelihood of similar death occurring in future or otherwise contribute to public health and safety or the administration of justice.

My findings include information about how Ms Morant died and the involvement of Graham Morant in her death.  There is no evidence that any other person was involved in her death.  It is clear that Ms Morant obtained the generator from Bunnings.  The unidentified DNA found on the generator could be that of any number of unknown persons who could have come into contact with the generator at any time.  Further, the evidence at the trial of Mr Morant, accepted by the Court of Appeal, was that Ms Morant’s hand, when placed on the generator, could have contained mixed DNA through coming into contact with some other object or person.”

12. [12]
    On 13 August 2020, the applicant applied to the State Coroner for a review of the Deputy State Coroner’s decision.
13. [13]
    On 24 November 2021, the State Coroner determined it was not in the public interest for an inquest to be held and declined the applicant’s application.  In doing so, the State Coroner observed that the Deputy State Coroner had made findings in respect of all of the required matters; that an inquest would not achieve any more; and that, in those circumstances, it was not in the public interest for an inquest to be held.
14. [14]
    On 9 December 2021, the applicant made application to the District Court, pursuant to s 30(6) of the Act, for an order that the decision of the State Coroner, declining to hold an inquest, be set aside and that it be ordered that an inquest be held into the death of the deceased.
15. [15]
    On 10 June 2022, the primary judge refused the application.

Procedural history

16. [16]
    The first step taken by the applicant before this Court to seek to overturn the decision made by the primary judge involved treating the decision of the primary judge as a decision of an administrative character made under an enactment.  On this basis the applicant filed an application in the Supreme Court seeking judicial review of the decision pursuant to the Judicial Review Act 1991 (Qld).
17. [17]
    The Crown responded that, if the applicant proceeded with the judicial review application, the Crown would seek to have the application struck out under s 13 of the Judicial Review Act^[1] because the matter was one which could be brought before the Court of Appeal under s 118 of the District Court of Queensland Act 1967 (Qld).
18. [18]
    The latter proposition was correct.  Section 118(3) of the District Court of Queensland Act relevantly provides that (footnote added) “… a party who is dissatisfied with any other judgment^[2] of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.”  Pursuant to s 118(8) of the District Court of Queensland Act an appeal from the District Court in its original jurisdiction is by way of rehearing.
19. [19]
    The applicant accepted the Crown’s contention concerning the appropriate procedural course for review and filed an application pursuant to s 118(3) of the District Court of Queensland Act for leave to appeal from the order of the primary judge that the application before her should be refused.  The application was filed on 28 September 2022, thereby necessitating an extension of time.  The extension was not opposed.

Legislative regime

20. [20]
    Section 28 of the Act provides, in respect of a reportable death, that an inquest may be held if the Coroner investigating the death “is satisfied it is in the public interest to hold the inquest.”  Section 28(2) provides that in deciding whether it is in the public interest to hold an inquest, the Coroner may consider:

2. “(a)
   the extent to which drawing attention to the circumstances of the death may prevent deaths in similar circumstances happening in the future; and
3. (b)
   any guidelines issued by the State Coroner about the issues that may be relevant for deciding whether to hold an inquest for particular types of deaths.”

21. [21]
    Relevantly, the State Coroner’s Guidelines 2013 (Qld) provide:

1. (a)
   That Coroners should carefully assess the extent of investigation warranted by the circumstances of each death so finite coronial resources are applied strategically, with any temptation to assume the death is from a predetermined cause to be resisted until the cause of death and the circumstances of it have been established (para 7.2);
2. (b)
   That “how the person died” refers to “by what means and in what circumstances the death occurred”; it is broader than the medical cause of death (para 8.3);
3. (c)
   The factors for consideration when assessing whether an inquest should be held include, but are not limited to:

• Can all the findings required by s 45(2) be made without an inquest?
• Are chambers findings sufficient?  If not, why not?
• Is an inquest likely to assist?
• Is there such uncertainty or conflict of evidence so as to justify the use of the judicial forensic process?
• Are there suspicious circumstances that have not been resolved or resulted in criminal charges? (para 9.2); and

1. (d)
   That where family members believed someone is criminally responsible for the death and no charges have been made, inquests are commonly requested; and that unless a Coroner can demonstrate the suspicions are baseless, the request will usually be granted (para 9.2).

(Citations omitted).

22. [22]
    Section 45 of the Act provides that a Coroner who is investigating a death must, if possible, find how, when and where the deceased died and what caused the person to die.  The Coroner must give a written copy of the findings to, relevantly, a family member of the deceased person.
23. [23]
    A Coroner may make those findings without holding an inquest.  However, in that event, s 30 of the Act provides that a person may apply to the State Coroner for an order that an inquest be held and, if the State Coroner refuses an application, that person may apply to the District Court.
24. [24]
    Section 30(8) of the Act provides that in the case of such an application, the State Coroner or the District Court may order that an inquest be held “if satisfied it is in the public interest to hold the inquest.”

Primary decision

25. [25]
    The primary judge observed that the apparent basis for the applicant’s application, that it was in the public interest for there to be an inquest, was his belief that somebody other than the deceased’s husband aided the deceased’s suicide at the scene of her death, or that somebody caused her death.
26. [26]
    The primary judge recorded that the State Coroner had regard to the decision of the Court of Appeal in the appeal against conviction, and in particular, evidence that:

    1. (a)
       the deceased was found dead in her motor vehicle by police at 9.50 pm on 30 November 2014;
    2. (b)
       the motor vehicle was parked in a street, over 10 kilometres from home;
    3. (c)
       the doors and windows of the motor vehicle were all closed and the engine was not running;
    4. (d)
       the deceased was seated in the driver’s seat, wearing sunglasses;
    5. (e)
       a “stick-it” note, with the words “do not resuscitate me” written on it, was found stuck next to the automatic gear lever of the motor vehicle;
    6. (f)
       the deceased’s husband had contacted police at 8.02 pm that evening to advise he had returned home from church to find a note from his wife, indicating she intended to do herself some harm;
    7. (g)
       when a police officer attended the scene, he opened the door of the motor vehicle and smelled a strong odour of carbon monoxide;
    8. (h)
       the police officer observed that the back seat of the car was folded down; there was a Ryobi brand petrol generator in the boot of the vehicle, which was not running and was cold to touch; and there was a little bit of petrol still in the bottom of the generator;
    9. (i)
       a forensic examination revealed that the generator switch was in the “on” position; that the handle of the generator revealed a mixed DNA profile with more than one contributor present, with the DNA profile being greater than 100 billion times more likely to have occurred if the deceased contributed DNA, rather than if she had not, and approximately four times more likely to have occurred if the deceased’s husband had not contributed, rather than if he did;
    10. (j)
        the DNA scientist accepted there was a possibility the tape had picked up two separate pieces of DNA on the handle of the generator, but it was also possible the deceased had placed her hand on the handle of the generator, with that hand already containing mixed DNA through coming into contact with some other object or person;
    11. (k)
        an autopsy confirmed the deceased died of acute carbon monoxide poisoning, but also referred to seven blue coloured bruises on the medial aspect of the mid-right upper arm, measuring up to 10 millimetres in diameter, with that finding being recorded under the heading “Signs of recent injury”;
    12. (l)
        the medical records accessed by the pathologist indicated the deceased had chronic thoracic spine pain, which was not assisted by surgery, having previously had a compression fracture for which she had a fusion and vertebroplasty in 2011.  Further, the deceased had been prescribed large doses of opioids since May 2013, and had a history of depression and anxiety;
    13. (m)
        a police officer conducted a test of the generator at the scene, to determine how many pulls it would take before starting the generator.  That police officer did not add any petrol to the generator to conduct the test, and the generator remained in the boot of the deceased’s vehicle.  That test established it did not take a lot of resistance in pulling the cord.  The generator started with one pull.  In his view, the generator stopped because the engine was starved of oxygen;
    14. (n)
        the evidence revealed the generator had been purchased by the deceased on 29 November 2014, when her husband had travelled with her to the Bunnings Warehouse store, although he remained in the car park whilst the deceased went inside and purchased the generator;
    15. (o)
        the deceased’s husband told police, in an interview, subsequent to her death, that he understood the deceased went to buy a generator that she could start, that the generator was sufficiently heavy that neither of them could lift it into the boot on their own, and that the following day he removed the generator from its box and then assisted the deceased to put the generator back into the motor vehicle.  The deceased’s husband denied putting fuel into the generator, saying the deceased had access to fuel at their home; and
    16. (p)
        the deceased’s sister and two friends gave extensive evidence of statements the deceased had made to them, in which she indicated, in effect, that the deceased’s husband was pressuring her to commit suicide.
27. [27]
    The primary judge further noted that the State Coroner, in determining not to hold an inquest, took into account submissions made by the applicant’s counsel, in an attempt to persuade the Coroner that there was compelling circumstantial evidence that one or more of the witnesses who testified against the deceased’s husband in his criminal proceedings were present when the deceased died.  The primary judge observed that the same circumstantial evidence, as well as some additional circumstantial evidence, was relied upon to persuade the primary judge that it was in the public interest for an inquest to be held.
28. [28]
    The primary judge found that the accumulation of that circumstantial evidence did not support a conclusion that someone else was present at the time of the deceased’s death and the public interest was not served by the ordering of an inquest.
29. [29]
    The primary judge further found that having reviewed all of the material before the State Coroner, neither the Deputy State Coroner nor the State Coroner failed to determine how the deceased died.  Further, the applicant’s suspicions that others were involved in causing the deceased’s death were unreasonable, and an inquest should not be held in order to allay unreasonable suspicions.

Consideration

Generally

30. [30]
    The question arises as to the approach which the Court of Appeal should take on an application for leave to appeal from a judge of the District Court who makes a decision pursuant to s 30(8) of the Act.
31. [31]
    In principle a statute may confer on a court jurisdiction to hear an appeal from a decision of an administrative character, and, if it does so, the necessary implication is that the Court will determine the appeal as a court, and all the usual incidents of that Court will apply to that determination.^[3]
32. [32]
    Section 118(3) of the District Court of Queensland Act does, on its proper construction, confer on the present applicant a right to apply for leave to appeal to the Court of Appeal from the decision made by the primary judge.  It does so whether or not the decision by the primary judge should properly have been regarded as a decision of an administrative character.
33. [33]
    It follows that the usual incidents of an application for leave to appeal to the Court of Appeal apply.  Leave to appeal under s 118(3) will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.^[4]
34. [34]
    If leave to appeal is granted, pursuant to s 118(8) the appeal to the Court of Appeal is to be conducted by way of rehearing.  The High Court has explained that where an appeal is conducted by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.^[5]
35. [35]
    Section 30(8) of the Act empowers the judge of the District Court to order an inquest to be held “if satisfied it is in the public interest to hold the inquest”.  Thus, the jurisdiction to exercise the power only exists if a judge forms that state of satisfaction.  If the power had been exercised it would have been the product of two decisions: first, the formation of the requisite state of satisfaction, and second, the exercise of the discretion to make the order.^[6]  In the present case, the power was not exercised because the requisite state of satisfaction was not formed.
36. [36]
    The determination of whether a particular course of action is “in the public interest” depends on the application of a very general standard.  It calls for a value judgment in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right.  For these reasons, the determination is to be regarded as the exercise of a discretion.^[7]
37. [37]
    The nature of the discretionary judgment in s 30(8) of the Act was discussed in Davis v Ryan, State Coroner,^[8] in which Holmes CJ (with whom Gotterson JA and Flanagan J agreed) said:

“…[t]he considerations relevant to the formation of the discretionary judgment in s 30(8) are not narrowly confined…[t]he issue of “public interest” which the section raises is properly considered…by reference to the objects of the Act and with regard to s 28(2), since it uses the same term; but s 28(2) is clearly non-exhaustive and nothing in it or s 30(8) limits the considerations which may be taken into account.  To the contrary, s 28(2)(b) recognises that there may be many factors to be taken into account, and by permitting the establishment of guidelines, leaves it to the specialist expertise of the State Coroner to determine what those factors are.

…[t]he exercise of the s 30(8) discretion is not a review of the State Coroner’s decision, but since it arises only where the State Coroner has declined to exercise his or her discretion under the same provision favourably, it follows that a different conclusion will not likely be reached, having regard to the proper consideration that the State Coroner’s exercise of discretion was informed by that expertise.”

38. [38]
    The principles which govern the circumstances in which an appellate court will interfere with the exercise of a discretionary determination at first instance will apply to govern the question whether there is an error to be corrected in relation to the determination.^[9]  The correctness of the decision can only be challenged by showing error in the decision-making process, namely by showing that the process miscarried in the House v The King^[10] sense.
39. [39]
    A submission was advanced that tests formulated in contexts where the grounds of review are limited to those involving jurisdictional error were more apposite in the present context than the House v The King test.  Bond J’s decision in S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd^[11] was one such case.  So was Minister for Immigration and Citizenship v SZMDS.^[12]  The submission was that the primary judge’s decision would only be reviewable if it was made in a way that was “arbitrary, capricious, irrational” or otherwise “not bona fide”.^[13] In our view that submission should be rejected for two reasons.  First, because the basis of review created by the legislature is an appeal to the Court of Appeal by way of rehearing, rather than review solely on the basis of demonstration of jurisdictional error.  Second, because in Davis v Ryan, State Coroner, a previous Court of Appeal determined that in order to challenge a decision of the District Court under s 30(8) of the Act it is necessary to identify error in the House v The King sense.  A subsequent Court of Appeal should only depart from that approach if it had the requisite strong conviction that the previous decision was wrong.^[14]  We do not have that conviction.
40. [40]
    The result is that in the present case there would only be a reasonable argument that there was an error to be corrected if the applicant could demonstrate error in the House v The King sense, namely that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, failed to take into account some material consideration, or, upon the facts reached a result which was so unreasonable or plainly unjust, that the appellate court could infer that in some way there had been a failure properly to exercise the discretion.  Of course, if an applicant proved that a discretion had been exercised in a way which was “arbitrary, capricious, irrational” or “not bona fide” or even that it was “unreasonable” in the administrative law sense,^[15] the applicant would have proved error in the House v The King sense.  But that is not the only way such error can be proved.
41. [41]
    It is with those principles in mind that each ground of appeal will be considered.

Ground 1

42. [42]
    The applicant submits that there was a failure on the part of the primary judge (and by the State Coroner and the Deputy State Coroner) to fully exercise the coronial jurisdiction, in that each failed to determine whether the deceased was alone and unaided when she died in that motor vehicle.  The applicant submits that the requirement to determine “how the person died” necessitated such a determination.
43. [43]
    The applicant further submits that the primary judge failed to address that jurisdictional error by reason of a misconstruction of the applicant’s claim as involving a general failure to look beyond the cause of death, and that this jurisdictional error was not corrected by the primary judge hearing further evidence, including new evidence.
44. [44]
    Whilst the applicant contends that the primary judge and the earlier decision-makers failed to properly exercise their jurisdiction, a consideration of the primary judge’s reasons supports a conclusion that there is no substance in these contentions.
45. [45]
    First, the primary judge specifically considered the applicant’s contention that there was someone else present when the deceased died, and found that “[t]he accumulation of evidence” did not suggest “that there was some other person present when [the deceased] died”.^[16]  Further, any suspicion to the contrary was an unreasonable suspicion.
46. [46]
    Second, the Deputy State Coroner specifically determined how the deceased died, namely, by suicide as a consequence of acute carbon monoxide poisoning, in circumstances where she was counselled and aided in that suicide by her husband.  The Deputy State Coroner also specifically concluded there was no evidence that any other person was involved in the deceased’s death.  That conclusion satisfied the jurisdictional requirement and also supported a conclusion it was not in the public interest to hold an inquest.
47. [47]
    Third, the State Coroner, in reviewing that decision, considered the presence of DNA evidence, as well as other material, in determining that the Deputy State Coroner’s investigation was sufficiently thorough and involved findings into all matters required under the Act, when determining that an inquest would not achieve any more and he was unpersuaded it was in the public interest for an inquest to be held.

Ground 2

48. [48]
    The applicant submits that the primary judge failed to address the correct standard of proof in two respects:  first, as to the statutory standard of reasonable satisfaction; and second, as to the presumption against suicide.
49. [49]
    A consideration of the reasons of the primary judge supports the rejection of both contentions.
50. [50]
    First, the primary judge expressly considered the various categories of evidence said to suggest that at least one other person was present when the deceased died, and found that there was nothing in the evidence supportive of any such contention.  Those findings were then considered in the context of the ultimate question for consideration in the application, namely, that an inquest may only be ordered to be held if satisfied “it is in the public interest to hold the inquest”.  That ‘public interest test’ is separate to the standard of proof applied.
51. [51]
    Further, the primary judge’s findings in relation to those categories of evidence were sufficient to exclude “the involvement of a third party procuring or failing to prevent an apparent death from self-harm”, insofar as it related to an allegation that a third party was present with the deceased at the time of death, and to support a conclusion that any suspicion to the contrary was “baseless”.
52. [52]
    Those conclusions meant the presumption against suicide was rebutted by the preponderance of evidence.

Ground 3

53. [53]
    The applicant submits that the primary judge’s finding as to the public interest was based on reasoning for which there was no evidence or on facts which did not exist.  The applicant bases that error on assertions that the primary judge erroneously hypothesised a case theory that the deceased’s husband might have been present when she died, when the Crown case had always been that he was at church at the time; that there was no satisfactory explanation for the deceased’s email account remaining operative and being accessed at least once a year after her death; that the primary judge erroneously recorded that a test was conducted of the generator on the night, when it was not, and did not have regard to the fact that the generator easily started after it was warmed up, rather than cold; and that the primary judge erroneously expressed a reservation as to the deceased’s inability to start the generator on the basis that the witness did not know the deceased, when the witness’ statement expressly referred to her personal knowledge of the deceased.
54. [54]
    The primary judge’s decision that it was not in the public interest to order an inquest was based on a consideration of all of the circumstances, in the context of an unchallenged finding that the deceased died of acute carbon monoxide poisoning, her body having been found in her motor vehicle with the windows and doors closed, with a strong smell of carbon monoxide, and a petrol generator which, although not operative, had the switch in the “on” position.
55. [55]
    In that context, the primary judge’s careful consideration of the surrounding circumstances provided ample evidence upon which the primary judge could find there was no evidence that another person was present at the time of the deceased’s death, and that it was not in the public interest for there to be an inquest.
56. [56]
    Although the primary judge incorrectly referred to the testing of the generator having been undertaken on the night in question, there was evidence the generator had been tested at a later date, whilst located in the motor vehicle, and that it started with one pull, with little resistance on the cord.  There was also evidence that the deceased had expressly purchased a generator she could start, which was sufficient to contradict an opinion by another that the deceased would not have been able to start the generator.
57. [57]
    There is no merit in the contention that there was no evidence to justify the primary judge’s decision.

Ground 4

58. [58]
    The applicant submits that as the primary judge was in the unusual position of standing in the shoes of the original decision-maker, the primary judge was bound to make the correct and preferable decision, having regard to the Act and its guidelines.  Having regard to the principles referred to at paragraphs [30]–[40], this ground can only arise if it is to be interpreted as contending that the decision involved error in the House v The King sense.
59. [59]
    The applicant submits that the primary judge’s decision was not the preferable decision, because it risked leaving a crime uninvestigated, thereby undermining the administration of justice.  Further, the primary judge’s finding that there was “scant evidence that any other person was present” constituted a finding that there was some evidence that another person was there and that, consistent with the guidelines, there should be an inquest.
60. [60]
    The applicant further submits that the decision was not correct, as no investigation had been undertaken regarding the deceased’s final moments or to exclude the involvement of a third party, such that an inquest had been refused without a determination of by what means and in what circumstances the death occurred.
61. [61]
    The primary judge expressly had regard to the requirements of the Act and the contents of the guidelines in concluding that it was not in the public interest to order an inquest.  Such a conclusion was consistent with the available evidence and in accordance with both the Act and the guidelines.

Ground 5

62. [62]
    The applicant submits that the primary judge took into account irrelevant considerations that were not submitted upon by the applicant, namely, a “thinly veiled” suggestion that two named witnesses were present or somehow aided the deceased’s suicide or caused her death.  The applicant submits the primary judge also erroneously took into account the irrelevant consideration of the gravity of such a finding.
63. [63]
    There is no merit in these contentions.  The applicant’s submissions before the primary judge expressly asserted that there were lies told by each of these witnesses “with a consciousness of guilt”, and specifically asserted in respect of one of those witnesses that that witness had “played a role in how [the deceased] died”.^[17]  Against that background, it was incumbent upon the primary judge to consider those contentions.

Conclusion

64. [64]
    No error has been shown.  The decision of the primary judge fell within a proper exercise of the discretion afforded by s 30(8) of the Act.

Orders

65. [65]
    We would order:

2. 1.The time for filing of the application for leave to appeal is extended to 28 September 2022.
3. 2.The application for leave to appeal is refused.