Rouf v Johnstone [1999] VSC 396

The Circumstances Preceding the Death of the Deceased

6. The deceased was a member of the Islamic faith and emigrated to Australia from Bangladesh in 1989 when he was about 35 years old. At that time he was married to Sheema Razzak also known as Shima Ahmed ("the wife") and they had two children. Upon the emigration of the deceased to Australia, the wife and children remained in Bangladesh and the deceased studied, worked and lived alone in Melbourne for a period of about six years.

9. During the period of separation from his family the deceased sent money to the wife in Bangladesh. It is said by the plaintiff that the monies sent by the deceased were applied to the purchase of two parcels of land in Bangladesh in the name of the wife ("the land"). It is also asserted by the plaintiff that the land is now valued at approximately $1M. The plaintiff further alleges that the monies sent by the deceased to the wife were applied by her to the purchase of assets in her name and in the name of members of her family. The plaintiff provided to the court a letter from the deceased to his sister in Bangladesh dated 4 April 1999. In the letter the deceased complained that the wife did not like anyone in the deceased's family, was only concerned with the future of her own parents, brothers and sisters and had given over $40,000 to those relatives in the preceding three years or so.

12. Eventually, the deceased was joined in Melbourne by the wife and children in about 1995. It is said by the plaintiff that the relationship between the deceased and the wife was not always harmonious. The plaintiff alleges that as a result of the infidelity of the wife, she and the deceased separated from about 1995 but both continued to live in Melbourne. The deceased and the wife were reconciled in about March 1999. During the period of separation there were allegedly acrimonious disputes between the deceased and the wife in the Family Court including the obtaining of intervention orders by the wife against the deceased. In particular, an order was apparently made by the Family Court prohibiting the removal of the children of the deceased from Australia without the consent of the deceased. A friend of the deceased has confirmed to the police the description of the unhappy relationship between the deceased and the wife, including alleged complaints by the deceased that the wife was disobedient and disrespectful of him and alleged complaints by the wife that the deceased tortured her.

15. The plaintiff resides in Sydney and he and the deceased spoke often by telephone. He alleges that about two weeks prior to the death of the deceased he and the deceased were speaking by telephone. Apparently, the deceased interrupted the conversation and the plaintiff overheard the deceased and the wife arguing. The plaintiff alleges he heard the deceased shout: "You have made harms to me a lot. How far can you go? You want to kill me, that is it?" When the plaintiff enquired about the reasons for the statement the deceased declined to comment.

18. At the time of his death the deceased was employed as a taxi driver. The deceased worked for a long-standing friend, Abdul Quddus Sayed. Mr Sayed made a statement to the police and I set out the salient parts of that statement. On the evening before his death the deceased failed to attend work and Mr Sayed telephoned him. The deceased complained that he felt unwell but that he would start work as he needed the money. The deceased arrived at Mr Sayed's house at about 6.30 - 7.00 pm on 28 August 1999 to collect the taxi for driving. The deceased asked Mr Sayed to feel the deceased's forehead. Mr Sayed did so and observed that the deceased was hot. Nevertheless, the deceased proceeded to work. At about 11.30 pm on the same evening Mr Sayed found the deceased asleep in the taxi parked in the driveway of Mr Sayed's home. Upon being woken the deceased said that he felt unwell, was suffering a burning sensation through his body and pain in the chest, stomach and back. He told Mr Sayed that he would return home and see how he felt in the morning.

21. The next morning, on 29 August 1999, the deceased telephoned Mr Sayed at about 10.00 am and is alleged to have pleaded to Mr Sayed to come to the deceased's home. Mr Sayed arrived at the deceased's house at about 10.30 am. On his arrival he observed that a doctor, Dr Awal, was present with the deceased and the wife. Dr Awal was examining the deceased who at that point was alive and standing up. Dr Awal said an ambulance was required. Shortly afterwards the deceased collapsed. Mr Sayed observed that foam was emitting from the mouth of the deceased at the time. Dr Awal commenced to apply heart massage and directed Mr Sayed to apply resuscitation. Mr Sayed observed that the face of the deceased turned blue. An ambulance arrived a few minutes later but a second ambulance had to be summoned because of an equipment failure. It seems not long afterwards the deceased died at his home and Dr Awal informed the wife of the death. Mr Sayed observed that the wife seemed very upset at the time.

25. At the time of the death Dr Awal had been subject to a special registration as an overseas medical practitioner. His registration expired on 23 August 1999, six days before the death of the deceased. Accordingly, it appears that Dr Awal was not a legally qualified medical practitioner for the purposes of Victorian law at the time he attended the deceased. It is alleged by the plaintiff and confirmed by police investigations that Dr Awal was a friend of both the deceased and the wife and in fact was a cousin of the wife. The court is not told any more about the relationship between Dr Awal and the wife.

28. A death certificate was signed by the deceased's treating doctor, one Dr Thai, on 30 August 1999. The cause of death was stated as "cardiac arrest". The certificate stated that the interval between the on-set of the condition and the time of death was half an hour and that there were no other antecedent causes or significant conditions that contributed to the death. It transpired that Dr Awal was a locum doctor and he informed Dr Thai of the death and that the symptoms exhibited by the deceased immediately before death were consistent with cardiac arrest. Dr Thai apparently sought clarification from the Coroner's Office concerning the signing of a death certificate in all the circumstances and eventually proceeded to do so. Upon investigation by the police Dr Thai said he was "surprised" by the death of the deceased.

31. The plaintiff arrived from Sydney at the deceased's home on the same day as the death of the deceased. He found a number of Bangladeshi persons at the home and considered their attitude towards him to be one of intimidation. Nothing specific has been asserted by the plaintiff in this respect save that when the plaintiff attempted to call the police he was prevented from doing so. The plaintiff has not deposed as to the circumstances surrounding the alleged incident.

34. Upon his arrival the plaintiff ascertained that the body of the deceased had been taken to a local mosque in accordance with Muslim practices. Arrangements were made for another brother of the deceased, Mohammed Abdur Rab, to arrive in Melbourne from California on the fourth day after the death of the deceased. Three days after the death of the deceased the wife sent the body to Bangladesh for interment. The plaintiff alleges this action was taken by the wife despite the imminent arrival of the deceased's other brother from California.

37. Sometime after his arrival at the deceased's home, the plaintiff sought the assistance of the police to prevent the removal of the body of the deceased to Bangladesh but they declined to take any steps as a death certificate had been signed. The plaintiff also sought assistance from the Melbourne Magistrates' Court, Victorian Legal Aid and the State Coroner's Office but to no avail.

40. Despite the orders of the Family Court a passport was issued to the daughter of the deceased, Samina Razzak on 20 July 1999 and to the son Saffat Samad Mohammed Waes on 30 August 1999. The latter passport was obtained the day after the death of the deceased. I am not informed as to the date upon which each of the passports for the wife and the children were applied for. On 1 September 1999, three days after the death of the deceased the wife and children flew from Melbourne to Bangladesh and have not returned. Police enquiries have revealed that the wife and children were detained temporarily by the Federal Police before departure and then allowed to leave. I am not informed as to the circumstances for the detention but presumably it was associated with the restriction on the departure of the children from Australia.

43. The plaintiff believes that the wife has plans to travel to the United States from Bangladesh but that her departure has been prevented by intervention of Bangladeshi authorities at the behest of the family of the deceased pending the outcome of the application before this Court. There is a suggestion, also, by the plaintiff that the wife has had an on-going affair with a man in Bangladesh.

46. After the arrival of the wife and children in Bangladesh, Mr Sayed, the friend and employer of the deceased, claims that the daughter, Samina Razzak told "someone" in Bangladesh that the wife prepared a meal of fish on 28 August 1999, the day before the death of the deceased and that no one was allowed to eat the meal except the deceased. No other information or circumstances are placed before the court in relation to this assertion. The plaintiff alleges that on the day of the death of the deceased, the same daughter told the plaintiff that she was drowsy at the time her father was ill and had difficulty waking up despite her father's stressed condition.

49. As a result of these circumstances, on 6 September 1999 the plaintiff and other brothers of the deceased requested the Coroner to investigate the death of the deceased with a view to achieving, if possible, exhumation of the body of the deceased in Bangladesh for the purposes of an autopsy and appropriate testing. The Coroner commenced an investigation assisted by Senior Constable John Gibson of the Victoria Police. A briefing paper was also prepared for the Homicide Squad. It seems that the squad was kept informed of developments and progress of the investigation.

52. The police investigation encompassed the matters I have broadly described. In addition, the police made two important enquiries. Firstly, the police obtained advice from Associate Professor David Ranson concerning the desirability of exhuming the body of the deceased. Professor Ranson informed the police that he was of the opinion that the only manner in which the presence of poison could be detected in the body of the deceased would be for the body to be exhumed and returned to Victoria for toxicologically analysis. Professor Ranson has informed the police that an autopsy or toxicological analysis conducted in Bangladesh could not be relied upon for accuracy. However, Professor Ranson has informed the police, further, that there are several poisons or toxic substances such as potassium chloride that would be indistinguishable from natural bodily fluids presumably if the body of the deceased was exhumed and tested. The second enquiry conducted by the police has been of Commonwealth authorities concerning the likelihood of the exhumation of the body of the deceased in Bangladesh in any event. Those enquires have revealed that there are no treaties or protocols in place between Bangladesh and Australia concerning exhumations. Nevertheless, I was informed on behalf of the plaintiff that if an inquest was ordered to be conducted enquiries of Bangladeshi authorities by members of the family of the deceased have indicated a high likelihood of cooperation by Bangladeshi authorities with Australia authorities in relation to exhumation.

55. After investigating all these matters and giving consideration to the factors described the plaintiff was informed by Senior Constable Gibson on 17 September 1999: "The Coroner has decided that there is insufficient direct evidence to justify exhuming your brother's body in these circumstances". On 28 September 1999 the family of the deceased requested that the Coroner reverse the decision. By facsimile transmission dated 1 October 1999 the Coroner's Office advised the family of the deceased that the Coroner had decided not to reverse her decision and advised that the family could apply directly to this Court for an exhumation order. As a consequence, the plaintiff brings the application to this Court pursuant to s. 18(3) of the Coroners Act.

58. Section 15(2) of the Act stipulates that upon the reporting of a death a coroner must investigate such death if it appears to the Coroner that the death is or may be a reportable death. Sub-section (1) of s. 15 vests jurisdiction in a coroner to investigate a death "If it appears to the Coroner that the death is or may be a reportable death". Section 3 of the Coroners Act defines a "reportable death" as follows:

"'reportable death' means a death - (a) where the body is in Victoria; or (b) that occurred in Victoria; or (c) the cause of which occurred in Victoria; or (d) of a person who ordinarily resided in Victoria at the time of death - being a death - (e) that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from accident or injury; or (f) that occurs during an anaesthetic; or (g) that occurs as a result of an anaesthetic and is not due to natural causes; or (h) that occurs in prescribed circumstances; or (i) of a person who immediately before death was a person held in care; or (j) of a person whose identity is known; or (k) that occurs in Victoria where a notice under section 37(1) of the Births Deaths and Marriages Registration Act 1996 has not been signed; or (l) that occurs at a place outside Victoria where the cause of death is not certified by a person who, under the law in force in that place, is authorised to certify that death."

62. Section 17 of the Coroners Act provides that a coroner must hold an inquest if, among other matters, it appears to the Coroner that the death or the cause of death occurred in Victoria and the Coroner suspects homicide.

65. Section 18 of the Coroners Act provides for a person to request a coroner to hold an inquest. It provides:

"18. Application for inquest into death (1) If a person asks a coroner to hold an inquest into a death which a coroner has jurisdiction to investigate, the coroner may - (a) hold an inquest or ask another coroner to do so; or (b) refuse the inquest and give reasons in writing for the refusal to the person and to the State Coroner within seven days after receiving the request. (2) Within seven days after receiving notice of the refusal, the person may apply to the Supreme Court for an order that an inquest be held. (3) The Supreme Court may make an order that an inquest be held if it is satisfied that it is necessary or desirable in the interests of justice."

69. The plaintiff submits that the circumstances surrounding the death of the deceased are such as to justify the holding of an inquest by the Coroner. In summary, the following matters are put forward.

72. Firstly, a possible motive for the wife to kill the deceased based upon the following circumstances:

(1) The alleged statement by the deceased to the wife about two weeks prior to the death concerning the wife wanting to kill the deceased.

(2) The alleged relationship of the wife with another man.

(3) The disharmony between the deceased and the wife and the history of their relationship in Australia.

(4) The alleged acquisition by the wife and her family of valuable assets and interests in Bangladesh gained by means of moneys provided by the deceased.

79. Secondly, it is submitted that there are circumstances surrounding the death of the deceased such as to suggest that he was poisoned:

(1) The alleged statement of the daughter of the deceased concerning the serving of the fish meal exclusively to the deceased on 28 August 1999.

(2) The alleged condition of the daughter at the time of death of the deceased being such as to suggest the drugging of a possible witness.

(3) The total lack of medical history of the deceased of any cardiac condition.

(4) The alleged association between the attending doctor, Dr Awal, and his lack of registration such as to suggest a deliberate attempt to disguise the covering up of the true cause of death, namely, poisoning.

(5) The signing of the death certificate by Dr Thai without having been in attendance at death and despite his surprise of the death.

87. Thirdly, there are a number of circumstances relied upon as suggesting suspicion of the behaviour of the wife and suggestion of her guilt of causing the death of the deceased. Those circumstances are:

(1) The behaviour of persons associated with the wife towards the plaintiff shortly after the death of the deceased.

(2) The date of issue of the passport to the son of the deceased on the day after the death.

(3) The haste with which flights to Bangladesh were booked on 31 August 1999, two days after the death.

(4) The haste with which the body of the deceased was despatched to Bangladesh.

(5) The haste with which the wife and children left Australia after the death of the deceased.

95. In Clancy v West [1995] VICSC 207; [1996] 2 VR 647 the Court of Appeal considered an appeal against a refusal by a judge of the Trial Division for an order for the holding of an inquest pursuant to s. 18 of the Coroners Act. In the judgment of Tadgell JA a comprehensive description was provided of the report made in 1980 by Sir John Norris, a former judge of the Supreme Court, upon the law relating to coroners. The report led to a codification of the law as contained in the Coroners Act. After considering the observations of the Norris Report and the relevant provisions of the Coroners Act, in particular, ss. 3, 15, 17, 18 and 19, Tadgell JA observed (at 652):

"It was notably recommended in the Norris Report that, save in cases where an inquest is made mandatory, a coroner should have an absolute discretion as to the manner of discharging the duty to investigate a reported death - whether by investigation short of a formal inquest, or by inquest. That recommendation was implemented by s. 17(2).

"Section 17(2) is notable in two respects. First, it gives a discretion to hold an inquest in any circumstances in which a coroner having jurisdiction to investigate the death believes it desirable to hold one. This is a valuable statutory option exercisable, no doubt, in the public interest; and it is in contrast to the position obtaining, for example, in England, where a coroner, in general, is obliged to hold an inquest in statutorily stipulated circumstances but has no discretion to hold one if none is mandatory: cf R. v. Poplar Coroner; Ex parte Thomas [1993] Q.B. 610 at 626. Secondly, s.17(2) plainly gives to a coroner who has jurisdiction to investigate a death a discretion not to hold an inquest if s.17(1) does not apply and the coroner believes it is not desirable to hold one. A more absolute discretion conferred upon a coroner to hold or not to hold an inquest in a case not falling within subs. (1) of s.17 could scarcely be formulated."

103. Tadgell JA proceeded then to consider s. 18 of the Coroners Act. And stated the approach to be applied by this Court when considering the exercise of the power to order an inquest pursuant to s. 18(3). The learned judge stated:

"No doubt s. 18(3) is to be understood to confer a jurisdiction upon the Supreme Court to override a decision taken under s. 18(1)(b). It would appear, however, to be a jurisdiction exercisable sparingly. The Supreme Court's jurisdiction to order an inquest to be held has existed in Victoria since the enactment of s. 10 of the Coroners Act 1911, a provision that was repeated in successive Coroners Acts until that of 1958. The section copied s. 6 of the United Kingdom Coroners Act 1887, now substantially re-enacted as s. 13 of the Coroners Act 1988. It is interesting that, in all the years since its first enactment, there does not appear to be any reported exercise of the jurisdiction following a refusal to hold an inquest. The United Kingdom section requires, as did the Victorian equivalent until 1958, that an application for the exercise of the court's jurisdiction be made by or under the authority of a law officer. The present s.18(3) contains no such limitation but it is to be noted that by s.17(1)(e) the Attorney-General may apparently directly achieve what could previously have been achieved only by court order. Having regard to this and to the extended discretion given by the 1985 Act to a coroner, it may be expected that occasion for the court's exercise of jurisdiction under s. 18(3) will be rare.

107. The approach of Tadgell JA was agreed with by Ormiston and Charles JJA. It follows from Clancy v West that this Court should only exercise its powers under s. 18(3) of the Coroners Act sparingly and in rare circumstances.

30 Clancy v West was a matter where an adult child of a deceased who was dissatisfied with the terms of the deceased's last will challenged the certified cause of death for reasons partly related to a claim of testamentary incapacity of the deceased. In announcing the caution he did in the application of s. 18(3) of the Coroners Act, Tadgell JA can be presumed to have been mindful of the particular circumstances before the Court of Appeal. So much is borne out by the description of the learned judge (at 656) of the application as "an unwarrantable attempt to perpetuate a family quarrel".

111. In the present matter I could not go so far as to describe the attitude of the plaintiff and the remainder of the deceased's family towards the wife as constituting "a family quarrel". However, there is clearly ill-feeling towards the wife on the part of the family of the deceased. Such ill-feeling must be put to one side. Instead, the circumstances relied upon in support of the application must be subjected to the most severe scrutiny.

114. Turning, firstly, to the matters relied upon as suggesting a possible motive on the part of the wife. The overheard conversation ought be approached with the utmost caution. The court could not be satisfied that the person allegedly spoken to by the deceased was the wife during the telephone conversation between the deceased and the plaintiff. I observe the plaintiff does not even go so far as to confirm unequivocally that he heard the voice of the wife. The alleged relationship of the wife with another man is pure speculation and rumour. I observe that a source of the rumour is not cited by the plaintiff. As to the disharmony between the deceased and the wife, such disharmony seems to have been confirmed by sources other than the deceased. However, the disharmony of itself and in the absence of other more compelling circumstances could not lead the court to form even a preliminary view that there was a motive on the part of the wife to cause the death of the deceased. There is then the concern as to the acquisition by the wife of assets in her name. It appears that there is no issue that these circumstances arose during the lifetime of the deceased. There is no evidence to indicate in any way that the deceased attempted to alter these financial arrangements. Further, there is no evidence before me of a dispute between the wife and the deceased over the title to such assets, particularly, the land in Bangladesh during the lifetime of the deceased. Finally, on the facts before me the wife did not stand to gain financially from the death of the deceased.

117. It follows from this analysis that I could not be satisfied on the evidence before me that there was a possible motive on the part of the wife to cause the death of the deceased.

120. Turning next to the circumstances relied upon as suggesting that the deceased was or may have been poisoned. The pivotal factor appears to have been the alleged statement by the daughter of the deceased concerning the serving of the fish meal. This circumstance arises from information given by the daughter to a person in Bangladesh who somehow conveyed the information to Mr Sayed. Obviously, this information is based upon hearsay upon hearsay. It is a circumstances that must be approached with the utmost caution. Of itself whilst it might create some suspicion on the part of some persons particularly the family of the deceased it is not enough to warrant the intervention of the court under s. 18(3). In my view, bearing in mind the approach adopted by the Court of Appeal in Clancy v West in order for the court to intervene under s.18(3) there would need to be compelling evidence and certainly evidence of a more satisfactory standard concerning the fish meal than is presently before me. As to the other matters surrounding the alleged poisoning of the deceased I regard the evidence in relation to the condition of the daughter at the time of the death of the deceased as irrelevant, alternatively, of such dubious quality that it should not weigh in my mind in determining to exercise the power under s.18(3) of the Coroners Act. The remaining matter in relation to the issue of poisoning are the circumstances involving Dr Awal and Dr Thai. I note that there is no medical evidence put forward on behalf of the plaintiff to suggest that the description of the physical condition of the deceased by Mr Sayed on both 28 and 29 August 1999 was such as to not be consistent or necessarily consistent with a cardiac condition or, alternatively, to be consistent with poisoning. In the absence of such evidence I approach the suggestion of poisoning with scepticism. In relation to the alleged relationship between Dr Awal and the wife, of itself it is not sufficient to warrant the intervention of this Court. I am told very little about the relationship between Dr Awal and the wife save that they were friends and cousins. Of itself that is insufficient to grant the application. In relation to the circumstances surrounding the lack of registration of Dr Awal at the relevant time and the manner in which Dr Thai executed the death certificate for the deceased, these circumstances are merely fortuitous and do not constitute factors sufficient to justify the granting of the application.

123. Finally, I turn to the circumstances said to suggest guilt on the part of the wife. I regard the conduct of persons associated with the wife towards the plaintiff shortly after the death of the deceased as utterly irrelevant. The only possible relevant circumstances are concerned with the departure of the wife and the children to Bangladesh shortly after the death of the deceased together with the prompt dispatch of the body. Of themselves these circumstances are not sufficient to justify intervention by the court. There are possible explanations for the departure of the wife including a desire to return to her homeland and her own family and, indeed, an attempt to cope with her grief upon the death of her husband. I consider, therefore, that the circumstances relied upon by the plaintiff as suggesting possible guilt on the part of the wife are not made out.

126. Upon scrutinising the factors relied upon by the plaintiff in support of the application I consider that all of the circumstances relied upon are highly speculative, based on hearsay on hearsay and constitute no more than a suspicion possibly propelled by inter-family ill-feeling. I consider that whether the circumstances are considered in isolation or, alternatively, considered on a collective and interwoven basis there is insufficient evidence to warrant the exercise of the power under s. 18(3) of the Coroners Act.

129. Accordingly, the application will be dismissed.

I certify that this and the preceding pages are a true copy of the reasons for judgment of Warren, J. of the Supreme Court of Victoria delivered on 15 October 1999.