Chapter 11.  Lead- in to the Trial


 There are many courts within the judicial system, each one having jurisdiction in nominated areas covering both Criminal and Civil matters. The Supreme Court, where the case between Whiteside and Smyth was heard, is a superior court within the legal system, and is able to hear cases where the administration of justice can be exercised by a single presiding Judge.

 As described in Chapter 9, there appeared to be some uncertainty as to who would bear the onus of proof, which ultimately fell on Whiteside as the plaintiff in the hearing. Effectively, this meant that Whiteside was deemed to be the person who commenced the action against Smyth, and accordingly his barrister would deliver the opening address and outline the issues before the court.

 To a person not accustomed to the manner in which court proceedings progress, or what was to be expected in answering questions put, the situation could be quite daunting. This was the case with Whiteside, who invariably wanted to explain a situation before answering in more simplistic terms as was expected of him.

 By now all the preliminary work by the lawyers and barristers had been completed.

 The Hon. Paul de Jersey was appointed to be the independent arbiter and Judge, the one who would ultimately decide for either the plaintiff or the defendant based on the facts put before him, and the evidence as presented by the witnesses.

The case revolved around a relatively simple matter. Did Tom Jowett know what he wanted to happen to his estate upon his demise, did he fully understand and comprehend the document he signed, or was he completely oblivious to what was going on as he sat in the office of Canning, the lawyer who drew up his last will.

 No one could doubt that there were times when Tom did not appear to be lucid, as evidenced by the many statements he made to Smyth over the preparation and execution of the 11 earlier wills. But the question had to be addressed concerning whether or not on 1 December 1999, Tom was in a lucid state of mind – this raised a further question as to who on that date would best be able to assess his ability to understand what he was doing. It is logical to assume it would be the lawyer drawing up the will, but arguments would be put as to whether that person had sufficient professional knowledge and expertise to arrive at a conclusive decision.

 If this were not the case, it could be argued that the witnessing solicitor in any number of cases could not swear under Oath that their clients had testamentary capacity, and therefore fully understood the ramifications of their actions at the time. To be positively confident, it would seem a professional doctor trained in knowing and understanding cognitive conditions would need to be in attendance. This approach is illogical, but, in the Whiteside v Smyth case the issue was one of considerable importance to both parties.

 Reference has already been made of Tom’s health and complete change of mind from one will to the next, but this it seems was not to be attributed to his mental state or capacity, as Justice de Jersey eventually ruled that Smyth the defendant sufficiently demonstrated that Tom knew exactly what he was doing in executing the will of 15 December 1998. This was so ruled, regardless of the fact that the Death Certificate indicated that Tom had suffered multi - infarct dementia dating as far back as 1996.

 In a trial of this type it was expected that case law history would play an important role in the final submission of the Judge, but case law only sets out principles of similar cases and is not therefore conclusive, as each one is different. Certainly, they are a guide that when used often saves time, but again, new precedents can be set based on different circumstances and principles, and thus they become new case law to be fought out in courts in the years to come. Justice de Jersey quoted from several past cases, and these will be referred to in a later chapter.  

 As Chief Justice of Queensland, de Jersey had on a prior occasion expressed his concern that ‘Confidence in the (court) system could be eroded by insufficiently informed criticism’.  

He then went on to say ‘Part of my mission is to do my utmost to maintain public confidence in the work of the courts, and where there is trenchant public criticism of particular decisions, it is a matter of great personal concern’.

Readers will be able to formulate their own opinion concerning the eventual findings of de Jersey in the battle between Whiteside and Smyth.

 Justice de Jersey is accepted as a highly accredited, experienced, and educated person whose judicial career progressed rapidly. He is a well known entity holding down many positions within the community, but he, like any Judge or Magistrate is not immune to error. Fortunately, our legal system allows for appeals to be lodged in the Court of Appeal, and while many are successful, it is not always possible to challenge a decision of the court due to the extremely high legal costs, with no guarantee that such appeal will be successful.

As a pensioner, Whiteside did not have the financial resources for an appeal should he lose the case, so it was important to him that de Jersey got it right when summing up on the case after hearing the evidence presented.

 Regardless of the fact that the plaintiff drafted Tom’s instructions at his request, the case did not revolve around the question of ‘undue influence’. If it had, then the onus of proof as to the will’s legitimacy may well have fallen to the defendant Smyth, to prove that in fact the plaintiff had used his position in a deceitful manner.

 Of considerable importance to the outcome of the trial were the words, phrases, and comments uttered by Justice de Jersey to counsel for both the plaintiff, and the defendant. They are highly significant, and cannot therefore be disregarded in the final analysis.

Quoting from the transcript of the case, His Honor on at least four occasions mentioned that he was only concerned as to the mental capacity of Mr. Jowett at the time of signing of his last will on 1 December 1999. These are his words as quoted in the transcript of the trial.

 . On P.3 de Jersey commented as follows – ‘Really it’s just a matter of looking precisely at his (Mr. Jowett’s) medical condition on 1 December 1999’.

 . On P.4 he stated – ‘None of that matters; we really have to focus on his condition at the time’

 . On P. 12 his words were – ‘It’s a short issue isn’t it, did he have capacity or not’

 . On P.17 a similar statement was made – ‘The issue is whether on the date of the execution of the will the deceased had testamentary capacity’.

The Judge was making it quite clear to counsel that he wanted proof of evidence either for or against the fact that Mr. Jowett had capacity on the date of signing his last will. From the events that followed, it would seem there was only one person (besides the plaintiff) capable at the time, to produce the evidence that was sought – see later.

 The stage was now set for legal argument and legal jargon to take precedence over all else, in what was to be a showdown between the lawyer and the pensioner. Besides the Judge, the prime participants in this case were barristers Conrick for the plaintiff (Whiteside) and Clarke for the defendant (Smyth). Instructing solicitors for the plaintiff were Mc.Donald Chesters, and Robbins Watson acted for the defendant. The many witnesses to be called were either already assembled, or at least notified their presence would be required during the following few days. The trial set down for hearing on 27 October 2003 was expected to last 4 days.


Chapter 12