Puddy v Puddy

[2012] WASC 233

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PUDDY -v- PUDDY [2012] WASC 233

CORAM:   MASTER SANDERSON

HEARD:   26 JUNE 2012

DELIVERED          :   29 JUNE 2012

FILE NO/S:   CIV 2040 of 2012

BETWEEN:   LAWRENCE EDWARD PUDDY

Plaintiff

AND

CRAIG PUDDY
Defendant

Catchwords:

Probate - Application for declaration defendant deceased - Third party convicted of defendant's murder - No reason not to make declaration

Legislation:

Nil

Result:

Declaration order made

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J A Robertson

Defendant:     No appearance

Solicitors:

Plaintiff:     Williams & Hughes

Defendant:     No appearance

Case(s) referred to in judgment(s):

Lashko v Lashko [2011] WASC 214

The Goods of Matthews [1898] p 17

1. MASTER SANDERSON:  This is an application brought by the plaintiff, the father of Craig Puddy the defendant, seeking a declaration Craig Puddy is presumed to have died on or about 3 May 2010 and for leave to swear an affidavit for the purposes of an application for probate that Craig Puddy died on or about that date.

2. This is a notorious case.  The State alleged that Craig Puddy was murdered by one Cameron James Mansell on or about 3 May 2010.  Craig Puddy's body was never found.  The case was tried before a jury between 6 September 2011 and 7 November 2011.  Mr Mansell was convicted of murder. 

3. It flows from that decision there has been a finding by a court that Craig Puddy is no longer alive.  It goes without saying when a person is convicted of murder, the alleged victim is dead.  The death of the victim is one of the essential elements of the offence.  Moreover, the standard of proof is beyond reasonable doubt.  In other words, it is safe to say beyond reasonable doubt that Craig Puddy is deceased.

4. There is a general presumption at law when a person has not been seen for seven years, he or she is presumed to be dead.  This is one of those so‑called rebuttable presumptions which exist in the laws of evidence.  In most cases, when a person has not been seen for seven years or more and an application for a declaration that he or she is dead is made, the starting‑point is the presumption.  Generally, a court will then look at all of the evidence to see whether it is consistent with that presumption.  In Lashko v Lashko [2011] WASC 214, EM Heenan J dealt with such a matter. His Honour reviewed the authorities and the history of the rebuttable presumption before undertaking an analysis of the facts.

5. In the Lashko decision, his Honour also referred to a number of cases where leave had been granted to swear to the death of a testator less than seven years after his disappearance.  The Goods of Matthews [1898] p 17 is an example.  In such a case, an applicant does not have the advantage of the rebuttable presumption and therefore must rely on other evidence to establish the death of the testator.

6. This case is different from all of those cases.  The applicant did rely upon a number of affidavits which detailed evidence tending to confirm Craig Puddy was deceased.  I need not deal with any of that evidence.  It is sufficient if I say it is consistent with Craig Puddy no longer being alive.

7. The applicant filed an affidavit of Lindsay Markinson Fox, sworn 19 June 2012.  Mr Fox was the junior counsel for the prosecution at the trial of Mr Mansell.  Mr Fox confirms the case run by the defence did not suggest Craig Puddy was still alive.  The defence was Craig Puddy was assaulted by a person or persons unknown, an assault which Mr Mansell witnessed.  Although it was not conceded by Mr Mansell the assault he witnessed necessarily caused the demise of Craig Puddy, the fact Craig Puddy's death was not put in issue indicates the point was conceded. 

8. In any event, in my view, all of that is of no particular relevance.  As I have indicated, there has been a finding Craig Puddy is deceased.  There is no warrant at all to now go behind that decision. 

9. There is one caveat that should be added to that conclusion.  Mr Mansell has appealed his conviction.  It is conceivable the conviction could be overturned.  However, as I have indicated, there is nothing in the evidence that emerged at trial and there is nothing in the affidavit material filed in support of this application to suggest Craig Puddy is alive.  While the verdict of the jury stands, there is no warrant for delaying the making of the orders sought by the applicant.  The anguish suffered by Craig Puddy's family does not need to be compounded by delaying the making of the directions until the appeal is heard. 

10. For these reasons, I made the declaration and the orders sought by the applicant.