Chapter 13.  The Case for the Defendant



Dr. Chai (Director of Aged Care)


The first witness to be called for the defendant was Dr. Chai, Director of Aged Care at the Gold Coast Hospital located at Southport. His evidence related primarily to Tom’s condition whilst in hospital between late December 1999 and mid January 2000.

Dr. Chai was described as a physician and geriatrician.

Although a specialist in his field, he could not establish to any degree of certainty that the deceased either lacked, or did not lack mental capacity on 1 December 1999.

He was one of many called in to assess whether Tom should be admitted to a nursing home for ongoing care following his discharge from hospital. As previously reported, Tom was released into the care of the plaintiff, Bruce Whiteside.

 Dr. Chai spoke on the cause and effects of mini strokes and alzheimer’s disease, and referred to Tom’s reported minor stroke in 1996. He claimed it was difficult to work backwards to arrive at a conclusive decision on Tom’s earlier condition. He used such phrases as ‘I don’t really know’ and when questioned whether Tom was worst at night or in the daytime, responded with the answer ‘Well that’s a tough one to answer’.

 Whilst not trying to be evasive, Dr. Chai in answering questions put by counsel for both the plaintiff and the defendant, commented -

 ‘There is difficulty in diagnosing dementia’

 ‘Anxiety can lead to deterioration in cognitive functioning’

 ‘I think’

 ‘Scans can be helpful, but not conclusive’

 ‘It may well be – that’s possible’

 ‘It depends upon – I suppose’

 None of this is conclusive evidence as to capacity or otherwise on 1 December 1999. However Dr. Chai did indicate that ‘It is possible that Mr. Jowett had capacity on 1 December 1999’.

He was prepared to acquiesce in McCracken’s assessment that the testator then had the requisite testamentary capacity, but de Jersey, although saying he relied on the ‘careful and persuasive evidence’  by Dr. Chai, indicated other issues could be considered more important, some of which are to be considered under the heading of Case Law.

 Dr. Ziukelis (Psychiatrist)

 The plaintiff took Mr. Jowett to the practice of Dr. Ziukelis in September 2000 due to  deterioration in his physical and mental condition, well after the signing of the 1 December 1999 will.

 The defendant and his firm took advantage of this visit with a view to obtaining Dr. Ziukelis’s opinion as to Tom’s likely mental capacity as at 1 December 1999. Upon request, Ziukelis made a report for Robbins Watson (solicitors for the Defendant) dated 25 September 2001. 

Like Dr. Chai’s evidence, his response was somewhat guarded - ‘It’s very difficult to express with accuracy an opinion in regard to someone’s mental state nine months earlier without having seen him’. He could not therefore express a view on Tom’s capacity on 1 December 1999, commenting it’s hard really to be clear about it’. His Honor intervened saying ‘A lot of the issues were hypothetical’. This would seem to be a logical comment to make.

 Andrew Smyth (Defendant)

 Prior to questioning Smyth, Clarke tendered the (original) will of December 1998, and de Jersey queried the relevance of submitting the earlier wills.

Clarke replied ‘It will go to the capacity question of the early will of 1998, to the extent that they are consistent with previous forms of disposition’.

 s was not the case as described earlier - not one of the prior wills indicated any degree of consistency.

 His Honor rightfully commented I don’t want to have the whole history of the testamentary dispositions over five years leading up to the 15 December 1998 will’.

 Clarke questioned Smyth about documents related to the Blue Nurse records to which Smyth responded ‘No, I haven’t been through most of the documents, only my file’.

Note : This to some might appear surprising, as Smyth was a lawyer and the defendant in the trial, and it could be reasonably assumed that he would have researched all relevant documents considering he was the only person challenging the later will.

 Clarke next stated (not questioned) ‘You challenged the will because the 1 December 1999 one was not consistent with Mr. Jowett’s previous testamentary habits’. Yes.

 Note : This again is wide open to question, as firstly, it now appears he did not challenge the later will because of Tom’s supposed lack of capacity at the time of making that will, and secondly, none of Tom’s many prior wills were at all consistent, as already indicated.

 Smyth implied that it was Crozier (Tom’s Blue Nurse carer) who indicated to him that Tom lacked capacity in late November 1999, and who also alleged it was Whiteside who was taking Tom’s funds, but he was not certain, and accordingly, couldn’t name who else could be blamed.

 Quite a discussion ensued concerning the involvement of the Adult Guardian over the supposed illegality of the EPOA made by Tom at the same time as the 1 December 1999 will, causing de Jersey to intervene with the following statement ‘What is the relevance of all of this. Just help me decide the question of testamentary capacity. For goodness sake, this seems very remote’.

 Very little evidence either for or against the plaintiff emerged from this witness, which seems strange concerning his long involvement with Mr. Jowett, the ongoing problem he had with Tom, and his knowledge of Tom’s relationship with the plaintiff.

 Carole Crozier (Tom’s Blue Nurse carer)

 From Transcript records it appeared obvious that Crozier remembered every comment and occasion concerning past events when questioned by Clarke, but when questioned by Conrick for the plaintiff, her memory was not as clear.

Whether her testimony was reliable could be considered questionable if she was aware that in the 15 December 1998 will, she had been left a considerable cash bequest. This was strongly denied.

  Crozier indicated that from 1997 Mr. Jowett became very forgetful and that he couldn’t remember where he had been, and he was very vague. These comments supported Smyth’s own view according to his personal notes. Tom had also said to her, ‘I can’t manage my own home I can’t pay my bills, and can’t remember what to do’. When questioned by Conrick over the doubts expressed by Smyth over the EPOA granted to Whiteside, the issues raised were initially denied by Crozier; but upon production of Proof of Evidence, her reply was quickly changed from a ‘No’ to Yes’.

 This basically is a short version of the Transcript of Proceedings, but any student of law would wish to know more, before making a judgment as to the eventual findings and Orders of the court. During the trial, Clarke made use of several prior ‘case law’ trials - these will now be examined.

Chapter 14