Thompson v Bella-Lewis

[1996] QCA 27

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 220 of 1994
Brisbane
[Bella-Lewis v. Thompson]
BETWEEN:

SHEILA BELLA-LEWIS

(Defendant) Appellant

AND:

SALLY HANNAH THOMPSON

(Plaintiff) Respondent

FITZGERALD P.
DAVIES J.A.

MCPHERSON J.A.

Judgment delivered 27/02/1996

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT,

FITZGERALD P. AND DAVIES J.A. AGREEING, MCPHERSON J.A. DISSENTING

Appeal allowed; judgment below set aside; new trial ordered.
Appellant to have the costs of the appeal, with the costs of the trial reserved to the further

trial judge.

CATCHWORDS:	Validity of will or document in testamentary form - was will duly signed, witnessed and attested - s. 9 Succession Act 1981 - question of fraud - directions to jury - privilege against self-incrimination
Counsel:	J.A. Griffin Q.C. with him G.M. Egan for the Appellant C. Hampson Q.C. with him T. Quinn for the Respondent
Solicitors:	O’Shea Corser & Wadley for the Appellant Crowley & Greenhalsh for the Respondent
Date(s) of Hearing:	24/05/1995
IN THE COURT OF APPEAL	[1996] QCA 027
SUPREME COURT OF QUEENSLAND	Appeal No. 220 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[Bella-Lewis v. Thompson]

BETWEEN:

SHEILA BELLA-LEWIS

(Defendant) Appellant

AND:

SALLY HANNAH THOMPSON

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 27/02/1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of the other members

of the Court.

In my opinion, the critical question for the jury was whether the instrument of which the respondent

sought probate as the deceased’s will (Exhibit 2) was duly signed by the deceased as his will and

witnessed and attested in accordance with s. 9 of the Succession Act 1981. While the respondent bore

the onus of proof on those matters, there was ample evidence to support a verdict in her favour and no

direct evidence that the instrument was not duly signed, witnessed and attested. For the appellant to succeed in this Court, she therefore must demonstrate some error in the conduct of the trial which gave

rise to a substantial miscarriage of justice: Supreme Court Act of 1874, s. 13. The matters to be

considered fall into two categories; the trial judge’s rulings on evidence, and his directions to the jury.

The appellant’s principal complaints in relation to the trial judge’s rulings on evidence concerned his

Honour’s refusal to permit questions, or discouragement of questions, relating to the reputation or credit

of Father Lewis, the admission of the evidence by the former wife of Father Lewis of her contact with

the appellant concerning the present dispute, and the course adopted in relation to Mrs Ferguson and

her affidavits and other evidence. His Honour was plainly correct in relation to the first of those three

matters, and the course he took with respect to the second matter did not, in itself, involve appealable

error. It is convenient to postpone consideration for the moment of the evidence and conduct at trial

of Mrs Ferguson, who, on the respondent’s case, was one of the attesting witnesses to the deceased’s

will.

As McPherson J.A.’s judgment states, a submission that a summing-up lacks balance must often be

largely decided as a matter of impression. While a trial judge who considers one party’s case strong

and the other’s weak might be prudent not to disclose his or her opinion to the jury, or at least not to

present it too forcefully, a weak case will frequently appear weak when explained to a jury, and a trial

judge is not required to attempt to make a weak case appear stronger than it is. In the present case,

the appellant’s argument that the summing-up lacked balance could only have significance if the trial

judge did not adequately explain the appellant’s case in relation to any matters which could affect the

reliability of the evidence from the respondent’s witnesses concerning the signature, witnessing and attestation of Exhibit 2 as the deceased’s will. It is unnecessary to add to, or comment upon, what

McPherson J.A. has said in relation to other complaints made by the appellant with respect to the

summing-up.

McPherson J.A. has also discussed various matters relied on by the appellant to challenge the due

execution, witnessing and attestation of Exhibit 2 as the deceased’s will, of which it seems to me

necessary to refer further only to the evidence and conduct at the trial of Mrs Ferguson.

In my opinion, this aspect of the appellant’s case cannot be answered by saying that Miss Dent’s

evidence, if accepted by the jury, was sufficient in itself to prove due signature, witnessing and

attestation of Exhibit 2 (although she was unaware that it was intended to be the deceased’s will), or

by supporting that conclusion by reference to Mr Farthing’s evidence. Neither Miss Dent nor Mr

Farthing might have been accepted by the jury if Mrs Ferguson had not been called. While it was not

essential that the respondent call Mrs Ferguson to give evidence, there were advantages in doing so.

Whether or not an omission to call her might have invited critical comment (cf. Payne v. Parker (1976)

1 N.S.W.L.R. 191) and might have increased the significance given by the jury to Mr Marheine’s

evidence which contradicted some non-essential elements of Miss Dent’s evidence, or any concern it

felt concerning the evidence of Miss Dent and Mr Farthing, once she was called she became a vitally

important witness. She had sworn two affidavits which, although involving some inconsistency, overall

supported the respondent. If the jury had disbelieved Mrs Ferguson’s evidence, that might have

adversely affected its opinion of the evidence of Miss Dent and/or Mr Farthing. Conversely, Mrs

Ferguson’s evidence could have persuaded the jury that Exhibit 2 was properly signed, witnessed and attested.

Miss Dent’s evidence was that Mrs Ferguson was an attesting witness to the deceased’s signature of

Exhibit 2. In her pre-trial affidavits, Mrs Ferguson had first sworn that the deceased had signed Exhibit

2 on the material date by signing his name at the end thereof “meaning and intending the same for his

final signature to his will” in the presence of herself and Miss Dent. In a later affidavit, again sworn prior

to the trial, she said that the deceased at no time completely unfolded Exhibit 2 “so that it was not

possible to read what was on that piece of paper”. When she was called by the respondent as a

witness at the trial, counsel appeared on her behalf to claim privilege from giving evidence “relating to

the circumstances of the signing or creation” of Exhibit 2 or “of the signing and contents” of either of her

affidavits on the ground that her answers might tend to incriminate her of offences against ss. 140

(attempting to obstruct, prevent, pervert, or defeat the course of justice), 193 and 194 (false

statements). After she was sworn and had given her name and address and, when an attempt was made

to question her, repeated her claim to privilege, she was ordered to answer whether she had signed the

two affidavits and Exhibit 2 and, under protest, she said that she had. Over the appellant’s objection,

the affidavits were then admitted under s. 92 of the Evidence Act 1977. At the trial judge’s direction,

Mrs Ferguson then gave evidence identifying the deceased from a photograph as the person whose

signature on Exhibit 2 she had witnessed and that she had personally written the words “witnessed by

Helen E. Ferguson” at the foot of Exhibit 2. Her claim to privilege was otherwise upheld, so that the

trial judge must have been satisfied from the circumstances and the nature of the evidence which Mrs

Ferguson was called to give, that there was reasonable ground for her concern that she might incriminate herself by her evidence at the trial: Sorby v. The Commonwealth (1983) 152 C.L.R. 281, 289 per

Gibbs C.J. The inevitable result was that she could not be cross-examined. She could not even be

asked whether her statements in either or both the affidavits were true or false, and, unless falsity could

be inferred from Mrs Ferguson’s refusal to answer further questions on the basis of her privilege against

self-incrimination, there was no basis for the jury to reject the truth of the statements in her affidavits.

All of the evidence at the trial relating to the signature of Exhibit 2 by the deceased and its witnessing

and attestation by Miss Dent and Mrs Ferguson therefore supported the respondent’s case that it was

duly signed, witnessed and attested. The appellant’s prospect of challenging that conclusion was

removed when Mrs Ferguson’s affidavits were admitted and she was excused from cross-examination.

Then, the trial judge consolidated the respondent’s position by his directions to the jury with respect

to Mrs Ferguson’s evidence and conduct.

In summary, his Honour instructed the jury that:

(i)          Mrs Ferguson’s claim to privilege did not justify an inference that the statements in her affidavits

were false or provide a basis for not accepting her evidence concerning the signature, witnessing and

attestation of Exhibit 2;

(ii)         even if her evidence were not accepted, that did not establish the opposite of her statements in

her affidavits but left her evidence neutral as to whether Exhibit 2 had been duly signed, witnessed and

attested; and

(iii)        that left Miss Dent’s evidence as to due signature, witnessing and execution. By clear

implication, the non-acceptance of Mrs Ferguson’s statements in her affidavits did not provide a reason

for not accepting Miss Dent’s evidence that Exhibit 2 was duly signed, witnessed and attested.
The other members of the Court are divided on the correctness of his Honour’s directions. McPherson

J.A. considers them correct, while Davies J.A. considers that it was open to the jury to draw any

inference which was reasonably open from Mrs Ferguson’s claim to privilege, and his Honour suggests

that the choice was between inferences that Mrs Ferguson had not seen the deceased sign Exhibit 2 or

that she had seen the deceased sign but, contrary to her first affidavit, was unaware that the paper

signed was his will. His Honour is also of opinion that the jury’s non-acceptance of Mrs Ferguson’s

evidence concerning signature, witnessing and attestation of Exhibit 2 could support a conclusion that

the signature, witnessing and attestation which she described in her affidavits did not occur. Further,

such a conclusion would not necessarily leave Miss Dent’s evidence unaffected, but could lead to the

further conclusion that, in at least some critical aspects, it was incorrect.

It is unnecessary for my purposes to attempt to choose between these competing views, although I

question whether some of the authorities which are against drawing an inference from the refusal of a

witness to answer a question on the ground of privilege against self-incrimination can be fully applied

to circumstances such as the present where the evidence in relation to which privilege was claimed

concerned statements made on an earlier occasion and the witness’ asserted foundation for the claim

to privilege was that the evidence declined to be given might tend to show that the earlier statements

were incorrect. Even if the privilege claim could not be converted into an admission of the falsity of the

earlier statements, it is not obvious why it could not detract from whatever probative force they might

otherwise have.
However, assuming in favour of the respondent that the law is as stated by McPherson J.A., the

consequence is merely to move the point of the trial judge’s error to the rulings which he made with

respect to the evidence which the respondent was permitted to lead from Mrs Ferguson, the reception

of her affidavits into evidence, and the refusal to permit cross-examination. In my opinion, the trial judge

had a clear duty to exercise his discretion to admit or exclude Mrs Ferguson’s affidavits under ss. 92

and 98 of the Evidence Act in a manner which did not unfairly advantage one party and correspondingly

disadvantage the other. The course adopted by his Honour did not do so; on the contrary, it was

productive of further evidence of due execution, witnessing and attestation of Exhibit 2 which was

unchallengeable, effectively deciding the outcome of the case subject to any step taken to redress the

situation in the summing-up. However, the summing-up did not seek to restore the balance in any

material respect, but rather emphasised the unfair benefit which the rulings on evidence had produced

for the respondent.

In my opinion, the result was a miscarriage of justice which cannot be seen to have had no effect on the

jury verdict. In the result, the appeal must be allowed, the judgment set aside and a new trial ordered.

The appellant should have the costs of the appeal, with the costs of the trial reserved to the judge who

conducts the further trial.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 27th day of February 1996

I adopt for the purpose of these reasons the facts stated in the reasons of McPherson J.A. The

essential question at the trial was whether what appeared to be the Will of Frank David Lewis deceased

dated 25 September 1991 was in fact executed by him on that day as a will in the presence of Miss

Dent and Mrs. Ferguson or whether he had signed the document in blank on a date unknown and the

typed portion and the signatures of Miss Dent and Mrs. Ferguson had been added later without his

knowledge, possibly after his death. There was no doubt as to the authenticity of the signatures of the

deceased or of Miss Dent or Mrs. Ferguson.

The principal witnesses on this question were Miss Dent who swore that the deceased executed

the document in her presence and in that of Mrs. Ferguson, and Mr. Farthing who swore that he

received the document in the post in late September 1991 and on the following afternoon received a

telephone call from the deceased in which the deceased asked him if he had received his Will and

instructed him to use it when necessary. There can be no doubt that if, properly instructed, the jury

accepted the evidence of those witnesses, the respondent was entitled to succeed.

The main contentions of the appellant related to the claim of privilege by Mrs. Ferguson and to

directions with respect to suspicious circumstances. It is to the first of those contentions that I now turn.

Grounds (a) to (f)

Grounds (a) to (f) relate to the circumstances surrounding the admission into evidence of the

affidavits of Mrs. Ferguson and his Honour's directions with respect to that evidence and the evidence

of Miss Dent in the light of Mrs. Ferguson's claim of privilege on the ground of self-incrimination. The appellant contended that either Mrs. Ferguson's affidavit evidence should have been excluded or that

the learned trial Judge should have urged the jury to view that evidence with the utmost caution and to

act on the evidence of Miss Dent only after having scrutinized her evidence with great care. Further she

contended that the learned trial Judge failed properly to direct the jury as to the content and significance

of ss.140, 193 and 194 of the Criminal Code.

The sequence of events with respect to the admission of the affidavits was as follows. First,

when Mrs. Ferguson was called to give evidence, she claimed privilege against giving evidence "relating

to the circumstances of the signing or creation of" the alleged Will or either of her affidavits on the

ground that her answers might tend to incriminate her, having regard to the provisions of ss.140, 193

and 194 of the Criminal Code. Then each of her affidavits and the alleged will was shown to her and

she indicated again that her claim related to each of them. Then the trial Judge directed her to answer

questions as to whether she had signed the affidavits and the alleged Will, whether she had received a

letter and a photograph and whether she had written a letter which she did. He then, over objection by

the appellant, admitted those affidavits into evidence. And he then allowed the privilege claim. The

result was that, apart from identifying her signatures on the affidavits, the alleged Will, and the letter, and

admitting receipt of the other letter and the photograph, she gave no evidence.

The directions which his Honour then gave to the jury with respect to the affidavits and her

evidence, in the light of that claim, were that:

(1)	the privilege claimed did not provide evidence that Mrs. Ferguson fraudulently witnessed the
alleged Will; it could only cancel out her earlier evidence, contained in the affidavits, that she
had witnessed the deceased's signature on 25 September 1991 and was present when Miss
Dent also witnessed his signature;
(2)	they could accept as true what was stated in the affidavits but that "for some reason of which
we are all unaware, she has decided not now to give sworn evidence on that point."

The directions in (1) and (2) were repeated by his Honour.

(3)	If they treated Mrs. Ferguson's refusal to give evidence as cancelling out her earlier sworn
evidence, contained in the affidavits, they still had the evidence of Miss Dent as to due
execution.
Redirections were sought that his Honour should direct the jury as to the basis of the claim of

privilege, that is ss.140,193 and 194 of the Criminal Code; and that they should be extremely reluctant

to act on Mrs. Ferguson's affidavits in the circumstances of the claim. His Honour refused to give any

such directions.

His Honour's repeated statement to the jury in respect of Mrs. Ferguson's evidence, referred

to in para.(2) above, that "for some reason which we are all unaware, she has decided not now to give

sworn evidence on that point" was inconsistent with the specific reason which she gave for not giving

evidence. She swore that, if she gave evidence "relating to the circumstances of the signing or creation

of a document dated the 15th day of September 1991 purporting to be the last Will of Frank David

Lewis or of the signing and contents of an affidavit dated the 3rd day of February 1991 or 1992 or of

the signing and contents of an affidavit dated the 5th day of April 1992 or of any other document relating

to the creation of or signing of the document dated the 25th day of September 1991 purporting to be

the last Will of Frank David Lewis or concerning any other matter or circumstances relating thereto" that

evidence or part of it might incriminate her under one or more of ss.140, 193 or 194; in particular that

it might reveal or constitute perjury by her. The jury would have been entitled to infer, from the fact that

she was represented by counsel, that she had formed the view which she had after taking legal advice. Moreover, in order to allow the claim, the learned trial Judge must have seen from the circumstances

of the case and the nature of the evidence which Mrs. Ferguson was called to give, that there was

reasonable ground to apprehend danger of incrimination to her from her being compelled to answer[1].
There is a difference of opinion among judges and jurists as to whether any inference may be

[1]          Sorby v. The Commonwealth (1983) 152 C.L.R. 281 at 289 per Gibbs C.J.; Cross on

drawn from the refusal of a witness to answer a question on the ground of privilege against self-

incrimination. The view that none may be drawn has sometimes been expressed without any reason

being given for it[2]. In other cases it has been said, in effect, that to draw any such inference would be

[2]            See for example Ex parte Symes (1805) 11 Ves.Jr. 521 at 523; R. v. Watson (1817) 2 Stark

to deny the protection which the privilege is designed to give without saying what that protection is or

how it would thereby be denied[3]. In others again it is said, in effect, that the purpose of the rule is not

[3]          Lloyd v. Passingham (1810) 16 Ves. 59 at 64; Rose v. Blakemore [1826] Ry.&M. 382 at

just to shield the guilty but also to protect the innocent; and that that protection would be lost if a refusal

to answer were to be taken as an admission against interest[4].

[4]          Adams v. Lloyd (1858) 3 H.&N. 351 at 363; Lamb v. Munster (1883) 10 Q.B.D. 110 at

It is plain that no inference drawn by the jury could turn the refusal to answer into an admission and the witness would be protected from later prosecution whatever inference the jury may draw. That protection is surely the purpose of the rule[5]. The better view in my opinion therefore is that, in such a

[5]            See the note to Rose v. Blakemore (supra) at 384-5.

case, the jury are entitled to draw whatever inference is reasonably open[6].

[6]          R. v. Watson (supra) at 153 per Bayley J.; Boyle v. Wiseman (1855) 10 Ex. 647 at 651 per

In my view it was permissible for the jury to draw whatever inferences were reasonably open

from the claim of privilege by Mrs. Ferguson. At least in this Court four possible inferences were

suggested. The first, suggested by the respondent, was that Mrs. Ferguson had been bribed by the

appellant to claim privilege so as to throw doubt on her earlier evidence. There was no evidence to

support that inference and it is inconsistent with the sworn evidence of Mrs. Ferguson as to the basis

of her claim. It is not clear whether it was ever raised below. It was not referred to in his Honour's

summing up. A second and more general inference suggested by the respondent was that Mrs.

Ferguson had simply decided that she no longer wanted to have anything to do with the matter. That

suggestion involves an assertion that Mrs. Ferguson gave false evidence to the Court that she believed

she had a basis for her claim of privilege. Because she was represented by counsel it also involves an

assertion that she had also deceived her legal adviser on this question. And it was inconsistent with the

basis on which the learned trial Judge granted the claim; that he was satisfied that the sworn claim was

reasonably based. That is a possible though unlikely inference.

The two most likely inferences involve acceptance of the genuineness of the privilege claim. The

first of these is that Mrs. Ferguson's affidavits were untrue and she had not seen the deceased sign the

document dated 25 September 1991. The second, which it appears was first suggested by McPherson

J.A. during the course of argument in this Court and is referred to in his reasons, is that Mrs. Ferguson

witnessed the deceased's signature to the document but is unable to say, though in effect she swore in

her first affidavit that she was, that it was the deceased's Will to which she witnessed his signature.

Whether one of these last two inferences was more likely than the other was, in my view, a

question for the jury having regard to the other evidence in the case[7]. However the first of those was

[7]          Smith v. South Eastern Railway Co. [1896] 1 Q.B. 178 at 188 quoted with approval in Jones

excluded from the jury's consideration by his Honour's directions referred to above and, it would seem,

the second was not adverted to by anyone until it was raised in this Court.

The direction referred to in para.(1) above was, as the trial Judge stated in the course of

argument, taken from a statement by Scrutton L.J. in Hobbs v. Tinling[8] that if a witness swears that he

[8] [1929] 2 K.B. 1 at 21.

did not go to Rome, and his credit is destroyed, it affords no evidence that he went to Rome. Whilst

it is no doubt true in many cases that, where a witness is disbelieved, the result is simply that there is no

evidence on the subject, that is not correct as a universal proposition[9]. There may be circumstances in

[9]          Steinberg v. Federal Commissioner of Taxation (1975) 134 C.L.R. 640 at 694 per Gibbs J.

which an inference can be drawn, from the fact that the witness has told a false story that, for example,

the truth would be harmful to her. Such an inference may more readily be drawn where, as in this case, the witness in effect swears that she believes that the giving of evidence might reveal or involve perjury

and there is no reason to doubt that evidence. The direction referred to in para.(1) was, in my view,

wrong in that it excluded from the jury's consideration a possible inference from the claim of privilege.

It also follows from what I have said that the direction referred to in (2) was, at best,

misleadingly incomplete. What was said there was a possible, though I think unlikely, inference from

the claim of privilege. But in the absence of reference to the other more probable inferences it was

wrong.

As to the direction referred to in (3), whilst it was true that, if Mrs. Ferguson's evidence on this

point was put on one side, there was still the evidence of Miss Dent, it was also permissible to infer, if

the jury thought that a reasonable inference from the claim of privilege in the circumstances was that

Mrs. Ferguson had not witnessed the deceased's signature, that Miss Dent's evidence was also false

in whole or in part. This direction was also, in my view, therefore misleadingly incomplete.

The trial Judge required Mrs. Ferguson to give evidence of her signature on her affidavits

notwithstanding his apparent intention of allowing the privilege claim. Having regard to that apparent

intention his Honour could have refrained from requiring Mrs. Ferguson to give that evidence or he

could have excluded the affidavits pursuant to s.98 of the Evidence Act. There was, in the

circumstances, a good argument that it was inexpedient in the interests of justice to admit those affidavits

because a likely inference from Mrs. Ferguson's claim of privilege, or at least the allowance of that

claim, was that they were false. If the respondent's counsel had been told that, if the affidavits were

admitted, the trial Judge would direct the jury that that was a permissible inference from the claim of

privilege, he may not have sought their admission into evidence. But having admitted them into evidence

the trial Judge was, in my view, obliged to tell the jury that it was permissible to infer from the claim of privilege and its allowance that the affidavits were false in whole or part and that, if they drew the

inference that they were false in an important respect, namely that Mrs. Ferguson had witnessed the

deceased's signature on the document, that would affect Miss Dent's credibility. As I have already

mentioned, not only did his Honour fail to give that direction but the directions which he did give

precluded the jury from drawing that inference.

Although the contentions in grounds (a) to (f) of the Notice of Appeal were argued in this Court

none of the authorities referred to above on the question whether any inference may be drawn from the

refusal of a witness to answer a question on the ground of privilege against self-incrimination was

referred to. Nor was this point argued as a matter of principle. The submission was made, baldly and

without elaboration, in terms of the contentions in the Notice of Appeal. It may be assumed that the

argument received no greater elaboration in the trial. Courts rely very much upon the competence and

industry of counsel who appear before them for the correct and timely disposition of cases. This is

especially so where, as in this case, the question involves consideration of a substantial body of authority

reflecting two competing views. In this case, in my opinion, counsel failed in their duty to their clients

and the Court.

The consequence of the admission of Mrs. Ferguson's affidavits, the allowance of her privilege claim, his Honour's misdirections and his failure to give correct directions .

Some or all of these may have caused questions 2 (Was the deceased's signature made in the

presence of Miss Dent and Mrs. Ferguson?), 3 (On what date did the deceased sign the alleged will?),

5 (Did Miss Dent sign in the presence of the deceased and Mrs. Ferguson?), 7 (Did Mrs. Ferguson sign

in the presence of the deceased and Miss Dent?), 8 (Were all typewritten words and figures appearing

in the alleged will present on it when the deceased signed?), 9 (Did the deceased know and approve

of the contents of the alleged will?) and 10 (Did they find for the plaintiff or the defendant on the issue

of fraud?) to have been answered in the respondent's favour and consequently judgment to have been given for the respondent. That is sufficient, in my opinion, to require this Court to set aside the judgment

and to grant a new trial[10].

[10]         Godhard v. James Inglis & Co. Ltd. (1904) 2 C.L.R. 78 at 92; Balenzuela v. De Gail (1959)

There were, in my view, two other errors in the summing up of the learned trial Judge. Both of

them were contributed to by the way in which the case was argued and neither was a ground of or was

argued on appeal. However each should be addressed, not because they are relevant to whether the

verdict should be set aside, but in order to prevent their repetition.

Fraud

The appellant alleged in her defence that the alleged will was produced by fraud. This was

denied by the respondent in her reply. Presumably the parties agreed in the formulation of question 10.

The learned trial Judge instructed the jury that, this being a case in which the appellant alleged

fraud, the onus was on the appellant to prove that the will was fabricated after the deceased had

executed the document in blank and that the standard of proving this was higher than on the balance of

probabilities. His Honour did direct the jury that, even if the appellant failed to prove fraud, the

respondent still bore the onus, on the balance of probabilities, of proving the issues reflected in questions

1 to 9. But he instructed them that they should first answer question 10 and only if they found against

the appellant on that question to consider questions 1 to 9.

Notwithstanding the appellant's pleading, in my view no question arose of fraud such as to place

any onus on the appellant. Where a will appears to be duly executed and the testator to have

testamentary capacity, it may nevertheless be challenged on the basis that it was procured by fraud or

undue influence. In that event the onus lies on the party asserting the fraud or undue influence[11]. But this

[11]         Aimers v. Taylor (1897) 15 N.Z.L.R. 530; Hanna v. Hanna [1913] N.Z.G.L.R. 61.

is not a case in which it is said that the will was induced by fraud. The question here was the antecedent

one of due execution; did the deceased on 25 September 1991 execute an instrument in testamentary

form in the presence of Miss Dent and Mrs. Ferguson? The appellant in alleging that the will was

"produced" by "fraud" was, as appears from the particulars of that allegation, denying due execution and

advancing a possible explanation of how what appeared to be a duly executed will was produced. But

the onus of proving due execution remained at all times on the respondent and the "fraud" allegation did

not place any onus on the appellant.

"Suspicious circumstances"

The appellant did not plead "suspicious circumstances" but it is plain from the learned trial

Judge's directions to the jury that her counsel raised the existence of suspicious circumstances in his

address to the jury. The learned trial Judge stated the law correctly with respect to suspicious

circumstances. His Honour said:

"if you are satisfied in this case that Frank Lewis duly executed exhibit 2 as a will ... then another presumption arises, that is a presumption that Frank Lewis knew and approved of the contents of exhibit 2 at the time he signed exhibit 2. If that presumption arises the plaintiff is entitled to get the benefit of it when she comes to prove that Frank Lewis knew and approved the contents of exhibit 2. What I have said as to such a presumption is subject to this qualification: the presumption will operate where there appear no circumstance or circumstances exciting suspicion that Frank Lewis may not have known of the provisions of exhibit 2."

As a proposition of law this is in accordance with the frequently cited statement of Isaacs J. in

Nock v. Austin[12] where his Honour said:

[12] (1918) 25 C.L.R. 519 at 528.

"(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents: Barry v. Butlin [1838] 2 Moo. P.C.C. 480 at 484; 12 E.R. 1089 at 1091; Fulton v. Andrew [1875] L.R. 7 H.L. 448.

(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document: Baker v. Batt [1838] 2 Moo. P.C.C. 317 at 321; 12 E.R. 1026 at 1027; Tyrrell v. Painton [1894] P. 151; Shama Churn Kundu v. Khettromoni Dasi L.R. 27 Ind. App. 10 at 16."

However his Honour failed to appreciate that the question before the jury was that stated in the

first sentence of that part of his direction which I have quoted - whether the deceased duly executed

exhibit 2 as a will - and that consequently no question arose as to the existence of the assumption

referred to in para.1 of the above statement of Isaacs J. It followed that no question of suspicious

circumstances arose.

In the course of his directions on this question the learned trial Judge told the jury that they could

not consider the fact that Mr. Farthing did not produce the will until about seven weeks after the death

of the deceased notwithstanding that he knew of the deceased's death shortly after it occurred.

Accepting for present purposes that his Honour was correct in saying that suspicious circumstances are

limited to circumstances existing at the time of execution of the will, that fact may nevertheless have been

relevant to the question whether the deceased duly executed the alleged will in the presence of Miss

Dent and Mrs. Ferguson because it may have supported the appellant's conspiracy theory.

In my view therefore the learned trial Judge's directions which implicitly accepted that the

question of suspicious circumstances arose in this case and grounds (g) to (i) of the Notice of Appeal

which complain about his Honour's directions in that respect were erroneous.

For the reasons given earlier I would allow the appeal, set aside the judgment below and order

a new trial. The appellant should have the costs of the appeal but the costs of the trial should be

reserved to the Judge conducting the new trial.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 27th day of February 1996

This is an appeal by the defendant from a judgment given for the plaintiff as executrix which

decreed probate in solemn form of the will dated 25 September 1991 of Frank David Lewis, who died

on 9 November 1991. The judgment followed a trial in the Supreme Court extending over some six

days or more, at which the jury, after deliberating for less than an hour, returned answers in favour of

the plaintiff to all questions left for their decision.

When he died Frank David Lewis was 72 years old. He had been married twice and at the

date of his death there were four surviving children. They were Frank Theodore Lewis, then aged 49

years old; Jacqueline Ann Landis-Bell, aged 41; Sally Hannah Thompson, who was 33; and Megan

Lewis-Sutton, aged 29. Jacqueline was not in fact the child of Frank Lewis but of his former second

wife; but she was brought up as one of his own daughters and for many years believed herself to be his

child. Within the family she was always known as Lindy.

At the time of their father's death, none of the children seem to have been in particularly affluent

circumstances. Frank Theodore Lewis was and is the rector of the Church of St. Alban in the Anglican

parish of Auchenflower in Brisbane. He was variously referred to during the proceedings as Theo,

Theodore, Father Theodore or Father Lewis. At one time he was married to Marilyn Dorothy Lewis,

who was a witness at the trial, and there is a child of their marriage named Rachel Ann; but the marriage

had ended in divorce, and at the relevant time Marilyn Lewis and Rachel were living at Bundaberg.

Theodore contributed to the maintenance of his daughter as far as his financial circumstances allowed,

although not in any substantial way. Lindy was married to a ship's officer and lived at Mission Beach.

Sally married in 1987 and lived at Palmwoods; she was named as sole executrix in the will of the deceased that is in contest, and she is the plaintiff in the proceedings for probate in solemn form. Megan

was also married but separated from her husband, and lived on a property at Main in the Byron Bay

district.

Each of these children gave evidence at the trial, at which the issue was the validity of the will

or document in testamentary form dated 25 September 1991. It bears what is not disputed to be the

deceased's signature and also those of Margaret Dent and Helen Ferguson apparently as attesting of

subscribing witnesses. The will, which was obviously not professionally prepared, is typewritten on blue

paper with letterhead bearing the name, address and telephone number of the deceased Frank D.

Lewis. It became ex. 2 at the trial and is in the following form:

"This is the last will and testament of Frank David Lewis of 16 Paraka Court, Mountain
Creek, Queensland.

I, Frank David Lewis, dated this 25th day of September, 1991, bequeath to Sheila, 16 Paraka Court Mountain Creek and one hundred thousand dollars cash to come from the sale of my assets of which the remainder is to be divided equally between my four children, Theodore, Lindy, Sally and Megan.

I make Sally Hannah Thompson the executrix of this will".

The opponent of the grant of probate of ex. 2, and the defendant appellant in the action, is

Sheila Bella-Lewis. She did not give evidence at the trial, and not much detail of her personal history

and circumstances emerges from the record. However, it appears that she came from the Philippines;

that she had a child of her own named Tina; and that she and the deceased had been living together, as

they were at his death in 1991, since about December 1979. There is evidence from several of the

witnesses which, because the defendant herself did not testify at the trial, is uncontradicted, that the

relationship between them was not always happy. She left him on one occasion after an incident in which, according to the account of it related by the deceased to a Mr Peter Farthing, she pushed the

deceased down a flight of stairs.

The defendant did not herself propound any competing will or testament, although there was

evidence from Father Theodore, which again was uncontradicted, that when he saw the defendant on

the Monday following his father's death on Saturday 9 November 1991, she told him "Everything is all

right. Your father left a will". However, on Wednesday 13 November, which was the day of the

funeral, she called him into the office in the house where she and the deceased had been living in

Maroochydore, and said "Before my very eyes, your father tear up his will". If there was any other will,

it was not discovered or propounded at the trial. The defendant's interest in opposing the probate of

ex. 2 is said to arise from the fact that, although not married to the deceased at his death, she would

under the law of New South Wales, if that is where he was domiciled at the date of his death, stand to

receive the matrimonial home and half of the estate. There was a valuable house at Hunter's Hill where

they had been living before they moved to Queensland; and the assets of the deceased, who was

described as having been a very successful and shrewd businessman, were said to be worth "several

millions" of dollars.

The issue of fraud. The basis of the defendant's opposition to probate of ex. 2 is that it was

a forgery. Perhaps it would be more accurate to say that the defendant's challenge to it was that it had

been fabricated. As has been mentioned, the deceased's signature on ex. 2 was not questioned.

Indeed, the evidence of a handwriting expert Mr Marheine, who was the only witness called by the

defendant at the trial, was that he had no doubt the signature was genuine. The amended defence and

counterclaim formally admitted that the plaintiff Sally Thompson is named as executrix in the document

(ex. 2) dated 25 September 1991 purporting to be the last will of the deceased. What the defendant alleged - and it is particularised in several different ways in para.7 of the defence - is that ex. 2 was

simply a letterhead signed by the deceased in blank, which had later been "converted" to the form in

which it presently appears. In essence, the defendant's case was and is that someone dishonestly typed

the terms of the will on to a piece of paper which the deceased had previously signed for some other

purpose, or perhaps for no purpose at all. The allegation is made in para.7(a)(vi) and repeated in

paras.7(b)(vi), 7(c)(vii) and 7(d)(vi) that the deceased "had the practice of placing his signature on blank

pages containing his letterhead". The allegation was not supported by evidence at the trial, and was

refuted by the plaintiff and the other witnesses in the evidence which they gave.

The defendant’s case was that it was Father Theodore who was the perpetrator of this alleged

act of fraud, as it is distinctly designated in para.7(b) of the defence. The circumstances in which the

fraud was carried out are, naturally enough, nowhere precisely identified, although it was said to have

been effected after the death of the deceased. The typewriter used to type ex. 2 was never located,

although there was evidence that the deceased himself was a competent two-finger typist. The blue

letterhead on which it was typed was a sheet of a quantity of such paper which had been given to the

deceased as a birthday present some time before by the defendant's daughter Tina.

Although the precise date or means by which Father Theodore was alleged to have fabricated

ex. 2 were not specified, the occasion on which he must, on the defendant’s hypothesis, have set his

plan into motion was identified. It was the celebration of the 25th anniversary of his ordination as a

priest. That event took place on the evening of 25 September 1991 (which is the date that appears on

ex. 2) at the church of St. Alban. It took the form of a communion service conducted by Bishop Adrian

Charles, at which some 60 or 70 people were present, and it was followed by a dinner attended by, among others, Sir James Killen, Judge Pratt, and Cannon Ivor Church, as well as by the two attesting

witnesses Margaret Dent and Helen Ferguson, both of whom were parishioners.

The dinner and the communion service were also attended by the defendant and the deceased.

His presence on that occasion was noteworthy because he had wished his son to follow him into

business and had disapproved of his decision to enter the Church. Although nominally Anglican, the

deceased was not a churchgoer. This was the first and only occasion on which he attended a service

in which his son took part as priest.

The circumstances in which ex. 2 came to be signed by the deceased on that occasion were the

subject of evidence from Margaret Dent. As well as being a parishioner of St. Albans, she occupied

the office of rector's warden and in that capacity she was master of ceremonies and spoke at the dinner,

which was held in the church hall. Afterwards, when talking to the deceased personally, he asked if she

would do him the favour of witnessing his signature. Mrs Ferguson was also present at this

conversation, and they went into the kitchen away from Father Theodore Lewis and the other guests.

The deceased took a white envelope from his inside breast pocket and extracted a blue paper which

Miss Dent saw him sign. Then she signed her name under the words "Witnessed by Margaret J. Dent

(Retired), 117 Birdswood Terrace, Toowong. Qld. 4066", which she wrote on the document. She

had had some experience in witnessing documents dating from the time when she worked in the Church

offices at Ballarat some years before. Mrs Ferguson followed her, writing "Witnessed by Helen E.

Ferguson (Housewife), 12/10 Carlyon Street, Hill End, 4101", and signing beneath it. Miss Dent did

not see the document again until 3 February 1992, when at the request of solicitors for the plaintiff she

signed an affidavit (ex. 68) for the purpose of obtaining a grant of probate in common form. The subsequent history of ex. 2 was related by Mr Peter Farthing. He had been a close

personal friend of the deceased for some 30 years, visiting his home, attending the weddings of all three

daughters, and on occasion having Christmas dinner with the family when the deceased lived in Sydney.

Mr Farthing was a solicitor of the Supreme Court of New South Wales. However, he never practised

as such, and until 1985 was employed as an administrative officer by the Waverley Municipal Council.

He participated in a number of business ventures with the deceased. He shared with the deceased a

strong interest in horse racing. The deceased betted on horses in a substantial way, and at one time

fielded as a bookmaker in partnership with Mr Farthing. When he left to live in Queensland, Farthing

took over the bookmaking business.

According to the evidence, the deceased had a distrust of lawyers, and Farthing used to do his

conveyancing and other minor legal work associated with his businesses. His evidence at the trial was

that in late September 1991 he received through the post a white envelope addressed to him in Sydney.

On opening it, he found ex. 2 dated 25 September 1991 signed by the deceased and bearing the

signatures of the two witnesses. It was not accompanied by any letter or other document. According

to Farthing's affidavit dated 5 May 1992, which was tendered by the defendant (ex. 13), the date on

which he received ex. 2 was 30 September 1991. On the afternoon of the following day he received

a telephone call from the deceased, who asked him "Did you get the will?" or "Did you get the will I sent

you?" When Farthing replied "Yes", the deceased said "Just use it when it's necessary". He then asked

Farthing how the bookmaking business was going, and there was some general conversation lasting for

about five minutes before the call ended.

Farthing put the will away with other documents for safekeeping. He learned from a mutual friend of the deceased's death on the same day or the day after it happened on 9 November 1991. He did not attend the funeral in Queensland because at the time his wife was critically ill and waiting to be

admitted to St. Vincent's Hospital for a serious operation. He did not think about the will again until he

was at the Randwick races on Boxing Day 1991, when a Mr Barry Power, who had formerly worked

for the deceased, showed him a notice (ex. 4) published in the Sydney Morning Herald of 26

December 1991. It notified the intention of Theodore and Sally to apply in Queensland for letters of

administration of the estate of the deceased, who was described as having died intestate. On showing

him the notice in the newspaper, Barry Power remarked "I can't believe this. Have a look at this.

Frank's died intestate". Farthing responded by saying "No. I've got his will". On 31 December 1991

he wrote to the solicitors named in the notice a letter (ex. 12) forwarding ex. 2 and briefly describing

the circumstances in which he had received it and was reminded of it on being shown the notice in the

Sydney Morning Herald.

Farthing's evidence was obviously critical to the question whether the will ex. 2 had been

concocted or fabricated; in short, to the issue of the fraud as alleged in para.7(b). Question 10 of the

questions put to the jury asked whether they found for the plaintiff or for the defendant on the issue of

fraud. Their answer was for the plaintiff. Such a finding would, as the learned judge reminded them in

summing up, necessarily depend on the impression they formed of Farthing as a witness of credit. Their

answer to question 10 shows that they accepted his evidence. It was not challenged on appeal.

Proof of the will. Once that point is reached there is, to my mind, little left in the case or the

appeal from the judgment given at the trial. The allegation of fraud or fabrication being disposed of by

the jury's answer to question 10, it is difficult to identify any basis in law or fact on which probate of ex.

2 could properly have been refused. The undisputed evidence was that the deceased's signature on ex.

2 was genuine. Of course, he might not have been aware that what he was signing was a will. He might have believed it was an instrument or document of some other kind. But that is contrary to the evidence

of Farthing that when the deceased telephoned him on 1 October 1991, which was the day after ex.

2 was received in Sydney and less than a week after it was signed, he asked if Farthing had got the will

which he had sent to him; and, receiving an affirmative answer, told him to use it when necessary. The

plaintiff naturally relied on the evidence of Farthing as proving that the deceased knew that ex. 2 was

a will and approved its contents.

The evidence to that effect is susceptible of no other interpretation. In the conversation on 1

October 1991, the deceased acknowledged ex. 2 to be his will and identified it as such to Farthing.

It is not possible to suppose that the jury might have rejected this part of Farthing's evidence while

accepting the remainder of what he said. If there was any substance at all in the defendant's hypothesis

of fraud or fabrication by Father Theodore, Farthing was an essential party to the conspiracy which

must have been formed to carry it out. Miss Dent and Mrs Ferguson must also have been privy to it.

Recognising this to be so, the trial judge directed the jury that "the fraud case involves Theodore Lewis

procuring the two women Miss Dent and Mrs Ferguson, to sign the fabricated document after Frank

Lewis had died". The direction was not objected to by counsel for the defendant, nor was it the subject

of any application for re-direction. It was not questioned on appeal.

Presumption of due execution. The plaintiff was, of course, bound to establish that the

requisites for a valid will were fulfilled; that is to say, that the deceased executed his will in the presence

of two attesting witnesses who were present at the same time and who attested and subscribed it in his

presence: Succession Act 1981, s.9. For purposes of proof, the evidence of one attesting witness

suffices. It is not necessary that both should testify. See Belkin v. Skeates (1858) 1 Sw. & Tr. 148;

164 E.R. 669; Rules of the Supreme Court, O.71, r.14; Hendy v. Jenkins (1900) 21 L.R. (N.S.W.) B. & P. 43. Miss Dent said she did not know she was witnessing a will; but that is not a requirement

for its validity. If, as the evidence of Farthing proved, ex. 2 was understood by the deceased and later

acknowledged to be his will, then all the statutory requirements were satisfied. His evidence and that

of Miss Dent established it; and the answers of the jury to questions 1 to 8 show they accepted that

evidence. It is consequently not possible to sustain ground 2(k) of the notice of appeal, which is that

the jury’s decision that the typewritten parts of ex. 2 were on it when it was signed by Miss Dent is

against the evidence and the weight of evidence. There is no suggestion that she ever witnessed any

other document bearing the signature of the deceased.

It was nevertheless submitted on behalf of the defendant that there were "suspicious

circumstances" surrounding the preparation and execution of the will, which the plaintiff had at the trial

failed to displace, and which consequently disentitled her to a decree for probate in solemn form, or

would have done so if the trial judge had correctly directed to the jury. The approach to be adopted

in relation to probate of a disputed will was authoritatively laid down in two nineteenth century decisions

of the Privy Council on appeal from the Prerogative Court at Canterbury. In Baker v. Batt (1838) 2

Moo. P.C. 317, 318; 12 E.R. 1026, 1027, Parke B. said that:

"in a Court of Probate where the onus probandi undoubtedly lies upon the party propounding the Will, if the conscience of the Judge upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the paper in question does contain the last Will and Testament of the deceased, it is bound to pronounce its opinion that the instrument is not entitled to probate".

Later in the same year in Barry v. Butlin (1838) 2 Moo. P.C. 480, 484; 12 E.R. 1089, 1091, his
Lordship explained that:

"the strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed, and it cannot be that the simple fact of the party who prepared the Will being himself a Legatee, is in every case, and under all circumstances to create a contrary presumption."

These two decisions and the statements of principle they contain have frequently been adopted and

applied in Australia; for example, in the High Court in Nock v. Austin (1918) 25 C.L.R. 519 and

Bailey v. Bailey (1924) 34 C.L.R. 558; and again, very recently, in Re Herbert (1990) 101 F.L.R.

279 (N.T.). Many of the reported cases have involved testators whose mental faculties were in

question, or whose wills were prepared by someone who took a benefit; but the doctrine of "suspicious

circumstances" is not so confined. The range of matters which may give rise to suspicion is virtually

unlimited. See Bailey v. Bailey (1924) 34 C.L.R. 558, 571. In Tyrrell v. Painton [1894] P. 151,

157, Lindley L.J. said that wherever circumstances exist which excite the suspicion of the Court, and

whatever their nature may be:

"... it is for those who propound the will to remove such suspicion and prove affirmatively that the testator knew and approved of the contents of the document, and it is only when this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will."

In applying these principles, it must, however, be firmly kept in mind that the inquiry to which,

in a case like this, suspicious circumstances are material is whether the testator knew of and approved

the contents of the document signed. As Davey L.J. said in his concurring judgment in Tyrrell v.

Painton [1894] P.150, 159, the circumstances relevant for this purpose are those raising "a well-

grounded suspicion that it [the will] does not express the mind of the testator".

In this context it is convenient to begin by considering the general complaint in ground 2(h) of

the notice of appeal that the trial judge ought to have directed the jury that the circumstances relating

to the will were suspicious; and that they should only find the will proved if the suspicious circumstances

were affirmatively removed and if it was proved affirmatively that the deceased knew and approved of the contents of the will. For the most part the matters comprehended in this ground have been covered

in what has already been said. The deceased's knowledge and approval of the contents of ex. 2 were

affirmatively proved by the evidence of Farthing, which the jury evidently accepted. As to the balance

of ground 2(h), the directions given by his Honour were, initially, that if the jury were satisfied that ex. 2

was executed according to law, a presumption arose that the deceased knew and approved the

contents of the document signed. That is in accordance with the principles, stated in Barry v. Butlin

and with what was said by Isaacs J., with the concurrence of Gavan Duffy and Rich JJ., in Bailey v.

Bailey (1924) 34 C.L.R. 558, 511:

"Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will ... then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof."

The presumption or assumption of due execution, as it has often been called, is specifically

recognised in O.81, r.15 of the Rules of the Supreme Court. It is displaced if there are suspicious

circumstances. The existence of such circumstances intercept the presumption and prevent it from

arising unless they are removed or eliminated by the proponent of the will. So much was explained in

the summing up. Having referred to the presumption of due execution, his Honour told the jury he

would come back to it because Mr Griffin Q.C. for the defendant had submitted that the presumption

did not apply "because there are some suspicious circumstances concerning the preparation and

execution of the will Exhibit 2". With those circumstances themselves his Honour then proceeded to

deal specifically. Having done so, he returned to the presumption of due execution "which was raised

during counsel's addresses". He explained its effect, saying that, if it applied, then another presumption

arose, which was that the deceased knew and approved of the contents of ex. 2 at the time he signed it. His Honour’s direction to that effect accorded with Nock v. Austin (1928) 25 C.L.R. 519, 528,

where Isaacs J. said:

"... where there appears no circumstances exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents".

His Honour went on to stress again that the presumption was subject to the qualification that it would

operate only if no circumstances appeared to excite suspicion that the deceased may not have known

of the provisions of ex. 2. He then referred once more to each of the circumstances which Mr Griffin

Q.C. had identified as being suspicious. In the light of these directions, it is not possible to sustain the

ground in para. 2(h) of the notice of appeal.

Suspicious Circumstances. It is necessary now to turn to what the defendant claims are the

circumstances of suspicion in the present case. In this Court they were identified as the matters set out

in para. 2(i) of the notice of appeal, which are incorporated in the appellant's written outlines of

argument. It is convenient for the moment to pass over circumstance (i) and to begin with the

circumstance alleged as no. (ii), which is that the deceased's signature was made by a different pen from

that used to make the signatures of Miss Dent and Mrs Ferguson. The proposition has only to be stated

to recognise its fatuity. There is no rule of law or dictate of human behaviour that the same pen must

be used by several persons to execute or witness a single document. On the contrary, using the same

pen to make each of several signatures on a document might in some circumstances be capable of

raising a suspicion that all the signatures on it had been made by a single hand. What happened here

was that, looking back from 1994 to the occasion in 1991 when she subscribed the will, Miss Dent said

that the same pen had been used by all. The handwriting expert Mr Marheine said that in his opinion

the deceased had used a felt pen with black ink, while the ink in the felt pen used to make the signatures of the two subscribing witnesses was black with a purple tinge. On that evidence Miss Dent was

probably mistaken about the use of the same pen. There is nothing inherently suspicious about that, and

the jury evidently did not consider that there was.

The circumstance numbered (iii) is that indentations under the signature of the testator "Frank

Lewis" showed that his signature had been applied to the paper while it was resting on a different

surface from the surface on which the signatures of Miss Dent and Mrs. Ferguson were applied. Miss

Dent said that the deceased had used the top of the refrigerator in the kitchen as something to write on,

and that, in following him, she had done so too. Mr Marheine based his opinion that different surfaces

were involved on the assumption that the top of the refrigerator was uniformly smooth, or that all

signatories wrote on precisely the same part of that surface holding the pen at exactly the same angle.

As Mr Marheine himself acknowledged, that might not have been what happened. There might have

been specks of rust, food residue, paint or any other substance like a table cloth on the top of the

refrigerator or part of it at the place where the deceased signed, which should have been capable of

producing the indentations which Mr Marheine identified. Again there is nothing in this evidence to raise

a well-grounded suspicion that the will did not express the deceased's intentions.

Circumstance (iv) is that it was "never positively established" that the typewritten or dispositive

part of ex. 2 was on the document before it was signed by Miss Dent and Mrs Ferguson. As to that,

Miss Dent said she could see there was typewriting on the document she signed but could not see or

did not know what its contents were. It is a fair summary of her evidence to say that she was uncertain

about what, if anything, she saw. The result is that it is probably correct to say that it was not "positively

established" by her evidence that the typewritten part of ex. 2 was on the document before it was signed

by the attesting witnesses. However, that circumstance loses its relevance once Farthing's evidence is accepted that the deceased himself identified ex. 2 as his will in the course of the telephone conversation

some six days later. It appears from the answer to question 8 that the jury drew the inference that all

the typewritten words and figures were on ex. 2 at the time when the deceased signed it. On that

evidence it was open to them to draw that inference. The complaint in ground 2(k) of the appeal that

it was against the weight of the evidence has already been disposed of. To treat this matter as a

suspicious circumstance, it would also be necessary to displace their answer to question 10, which, for

reasons already given, must have rested on acceptance of Farthing's evidence.

Late production of the will. The circumstance relied on as no. (v) is that Farthing, as the

person in possession of ex. 2 at the date of the death of the testator, did not take steps to advise family

members that he had it, or advise the plaintiff that she had been appointed executrix. It is true that for

a period of some seven weeks between the death of the deceased on 9 November 1991 and his letter

ex. 12, dated 31 December 1991, to solicitors, Farthing did not inform any of the children or the

defendant that he had the deceased's will in his possession. The reasons he gave for the oversight, as

he claimed it was, were the distraction afforded by his wife's critical illness, and the assumption he made

at the time that other persons would have copies of the will. In fact, in the course of cross-examination,

it was elicited from Farthing that there was an occasion on about the Monday (13 November 1991)

after the deceased's death when he disclosed to a Mr Norman Porter that he had the will in his

possession. Porter had been associated in some way with Community Markets, which was a business

established and conducted by the deceased, of which the defendant was a director. Porter telephoned

Farthing to say that it had been the deceased's wish that the defendant and Porter should open a market

in Queensland, and that they needed "the gear" to be sent from Sydney to Queensland. Farthing's

response was that he had the will, and that nothing should be done with the estate until the will was put through the courts. He said he added "Will you make sure that Sheila [the defendant] gets that

message".

It was a matter for the jury to assess the credibility of Farthing's testimony on this as on other

maters. They may have been helped in reaching a conclusion about it by the fact that at the trial counsel

for the defendant had announced that Norman Porter would give evidence. He was never called as a

witness. No explanation was offered for his absence, and it was, as the trial judge instructed the jury,

consequently open to them to infer that Porter's evidence would not have assisted the defendant's case.

What may be described as Farthing's late production of the deceased's will ex. 2 was

specifically dealt with by the trial judge in the summing up. He instructed the jury to ignore it, saying it

was not a circumstance which could be taken into account in dealing with this aspect of the case.

Curiously, in view of ground 2(i)(v) of the notice of appeal, no complaint was made that this involved

a misdirection, and no redirection was sought in relation to it at the trial. There is in any event authority

which supports the correctness of his Honour’s direction to that effect. The sheet-anchor of the

defendant's contention on appeal was the passage in the judgment of Lindley L.J. in Tyrrell v. Painton

[1894] P. 151, 157, to which reference has already been made. Its citation in this context disregards

the later English decisions in Estate of Lavinia Musgrove [1927] P. 264 and Re R., Deceased [1951]

P.10. In the first of these cases, the facts were that Lavinia Musgrove died in 1905 leaving a document,

purporting to be a will dated 9 September 1890, appointing her cousin Emma Dummall as executrix and

disposing of her estate to Emma's illegitimate daughter Agnes. On the death of Emma in 1925, Lavinia

Musgrove's will was discovered years after letters of administration of her estate had issued and been

carried into effect. In reversing the decision of Hill J. and pronouncing for the will, Lord Hanworth M.R.

said (at 280) that the doctrine of suspicious circumstances “appears to have been used in reference to the preparation of the will, its intrinsic terms, and the circumstances surrounding its preparation and

execution”. Sargant L.J., after observing that the sole ground on which the primary judge had

pronounced against the will was the suspicion excited by the executrix Emma Dummall doing nothing

for 16 years to secure the benefits of Lavinia’s will for her daughter Agnes, went on to say ([1927] P.

264, 283):

"Now here there is nothing in the preparation or contents of the will to raise a suspicion that it did not express the mind of the testatrix. The sole peculiarity is the subsequent fact that for many years after knowledge of the death of the testatrix the executrix did not take any steps to prove a will which gave large benefits to her daughter. I cannot think that this fact is analogous to the facts in Tyrrell v. Painton or the previous similar cases or that it justifies such an inference as was drawn there".

To the same effect were the reasons of Lawrence L.J. (at 286) that in every case in which the Court

had had to consider the question "the suspicious circumstances have been circumstances existing at the

time of and surrounding the preparation and execution of the will”; and that what Lindley L.J. had in

mind in Tyrrell v. Painton were:

"primarily circumstances existing at the time when the alleged will was executed and having a direct bearing on the question whether the testator knew and approved of its contents."

It was in this sense that the decision in Estate of Lavinia Musgrove was applied by Willmer J. in Re

R., Deceased [1951] P. 10, 17-20.

Those decisions establish, at least in England, that the suspicious circumstances must be such

as to bear directly on the testator's knowledge and approval of the contents of the document he signed.

It is true that in Wintle v. Nye [1959] 1 W.L.R. 284, 291, there is a passing observation in the speech

of Viscount Simonds (which was taken up by MacArthur J. in Tanner v. Public Trustee [1973]

N.Z.L.R. 68, 85) suggesting that secret retention of the will after the death of the testator may be

considered a suspicious circumstance; but neither Estate of Lavinia Musgrove nor Re R., Deceased was referred to. What is more important, both the English decision in 1959 and the New Zealand

decision were cases in which the will was retained by the person who had prepared it and who

benefited under it. The point does not appear to have been specifically considered in any Australian

decision, although in Bool v. Bool [1941] St.R.Qd. 17, 39, there is a statement, on which the defendant

particularly relied in this appeal, in which Macrossan S.P.J. said:

"The true rule is that wherever a will is prepared and executed under circumstances which raise the suspicion of a Court, it ought not to be pronounced for unless the party propounding it adduces evidence which removes such suspicion and satisfies the Court that the testator knew and approved of the contents of the instrument. Tyrrell v. Painton [1894] P. 151."

In so stating the principle, it will be noticed that his Honour confined it to circumstances associated with

the preparation and execution of the will. It does not assist the defendant on the point at issue.

In my opinion, it is consistent with the decisions in this country to hold that, except perhaps

where the will is retained by someone who participated in its preparation or execution, or who benefits

under it, a circumstance must, to be accounted “suspicious”, be related to the preparation or execution

of the will, or its intrinsic terms, and not to events happening after the testator's death. What happens

after a person’s death is not readily capable of throwing light on the question whether he or she knew

of and approved the contents of a document executed during his or her lifetime. Indeed, to adopt a

contrary approach would be to leave the efficacy of a will to the mercy of acts or omissions, possibly

deliberate, of the person to whom the will was entrusted and over whom the testator necessarily has no

control after his death. It follows that in this case the fact that Farthing did not disclose the will for some

seven weeks after becoming aware of the deceased's death could not in law be considered a

circumstance raising a suspicion that the deceased did not know or approve its contents.

Mrs Ferguson’s affidavits. Circumstance (i), which has been left to last, is that one of the two

alleged attesting witnesses declined on the ground of self-incrimination to give evidence of the

circumstances in which she appended her signature to ex. 2. The sequence of events is that, according

to Miss Dent's evidence, Mrs Ferguson attested the will in the kitchen of the church hall in the presence

of the deceased on 25 September 1991 immediately after Miss Dent had done so. Mrs Ferguson later

swore an affidavit dated 13 February 1992 in the standard form envisaged by the Rules of Court for

obtaining probate in common form where there is no express attestation clause. See O.71, r.14, which

his Honour explained to the jury. In para. 1 of the affidavit she said she was one of the subscribing

witnesses to the will dated 25 September 1991, which was produced to her; in para. 2 she deposed

that the testator had executed his will on that date by signing his name at the end thereof "meaning and

intending the same for his final signature to his will", and in the presence of the deponent and Miss Dent.

In a subsequent affidavit dated 5 April 1992, she elucidated the circumstances in which she was

requested to and did sign ex. 2, referring to the fact that the deceased had taken the blue sheet of paper

out of an envelope from his pocket, but that he had not completely unfolded it "so that it was not

possible to read what was on that piece of paper".

It is apparent that the two statements quoted from the two affidavits are inconsistent. In the

first, ex. 2 is described as a "will", which the testator meant and intended to sign as his will; in the

second, it is said to have been so folded as to make it impossible to read "what was on that piece of

paper". It may have been this difference that accounts for what happened at the trial.

When Mrs Ferguson was called as a witness by the plaintiff at the trial, Mr Innes of counsel

sought leave to appear on her behalf to say that she would, having regard to ss.140 and 193 or 194 of

the Criminal Code, claim privilege from answering all questions relating to the circumstances of signing ex. 2. After some argument Mrs Ferguson went into the witness box and was sworn. Having given her

name and address she was asked to look at the first of her affidavits, which had been filed in the relevant

Supreme Court “ecclesiastical” or common form probate file. At that point, she claimed privilege on

the ground of incrimination from answering questions relating to her signing ex. 2 and both of her

affidavits. Further and prolonged argument then took place, at the end of which the trial judge directed

her to answer whether she had signed the two affidavits referred to. To this, although under protest,

she said she had. At that point the affidavits were tendered by the plaintiff, but objected to by the

defendant. Further argument followed, after which his Honour ruled that each of the affidavits was

admissible pursuant to s.92 of the Evidence Act 1977 as a statement contained in a document. They

were admitted as exs. 15 and 16. Finally, Mrs Ferguson was asked and, at his Honour's direction,

answered that she had received a letter dated 25 June 1993 sent to her by the plaintiff's solicitors,

together with a photograph enclosed with it; and had in response written a letter dated 7 July 1993

identifying the persons in the photograph as herself, Judge Pratt, the deceased Mr Lewis, and a woman

named Carol and affirming that the Mr Lewis she identified was the person whose signature she had

witnessed. She also testified that she had herself filled in the words "witnessed by Helen E. Ferguson..."

at the foot of the will. Those documents were together admitted as ex. 17. All three exhibits were then

read to the jury and the photograph was shown to them.

Among the grounds of appeal taken in para.2(a) to (f) are that the trial judge was wrong in

admitting the affidavits (exs. 15 and 16); that he ought to have directed the jury not to act on them at

all, or alternatively to view them with the “utmost caution”. In addition, it is also claimed in para. 2(a)

that the jury should have been told to act on the evidence of Miss Dent only after having “scrutinised

her evidence with great care”. None of these grounds, whether taken singly or together, is tenable, although in passing it may be noticed that his Honour told the jury that question 8 (which was whether

or not the typewritten portion was present on ex. 2 when, according to Miss Dent, the deceased signed

it) required them to scrutinise the evidence carefully.

Section 92(1) of the Evidence Act provides that in any proceeding not criminal, a statement

which is contained in a document and which tends to establish a fact of which direct oral evidence would

be admissible "shall ... be admissible" as evidence of that fact if either of two conditions is satisfied.

They are: (a) if the maker of the statement had personal knowledge of the matters dealt with in the

statement, and is called as a witness in the proceedings; and (b) if the document forms part of a record

relating to an undertaking, etc. The two affidavits probably satisfied para. (b) of s.92(1); but, as ex. 17

showed, they certainly satisfied para. (a) of that subsection. Mrs Ferguson was called as a witness, and

both inferentially from ex. 2 and directly from ex. 17, she had personal knowledge of the matters dealt

with in her affidavits: cf. Evidence Act, s.96(1). It is a consequence of the statutory provision, which

has been recognised and acted on in Queensland ever since the decision in Hilton v. Lancashire

Dynamo Nevelin Ltd. [1964] 1 W.L.R. 952, that a witness’s own statement or proof of evidence may

if signed be put in evidence through him by the party calling him when he gives evidence.

In these circumstances, his Honour was on the face of it bound to admit into evidence the two

affidavits of Mrs Ferguson. Section 92(1)(a) uses the mandatory expression "shall ... be admissible".

It is true that it is expressed to be "subject to this Part", including s.98, which confers on the court a

discretion to reject any such statement "if for any reason it appears inexpedient in the interests of justice

that the statement should be admitted". However, his Honour was plainly correct in interpreting

s.92(1)(a) as requiring the statement to be admitted subject to the exercise under s.98 of the discretion

conferred to reject it if its admission would be "inexpedient in the interests of justice". As to that, his Honour was surely correct in holding that it was no reason for rejecting Mrs Ferguson’s affidavit that

it would or might be difficult for defence counsel to cross-examine her effectively if (as in the event

proved to be the case) she maintained her claim to privilege when questioned. It was not, and could

not be, suggested to have been any act on the part of the plaintiff that induced Mrs Ferguson to claim

privilege as she did. Her action in signing the affidavits exs. 15 and 16 and providing them, together with

the letter and photograph (ex. 17), to solicitors for the plaintiff involved a waiver of her privilege with

respect to the making and signing of those documents. See BTR Engineering (Australia) Ltd. v.

Patterson (1990) 20 N.S.W.L.R. 724, 727-729. The fact that the circumstances in which she signed

ex. 2 fell outside the scope of that waiver, and within the limits of her claim of privilege, so that she could

not be cross-examined about that occasion is simply one of the misfortunes of litigation, or of the rules

of evidence, which parties are obliged to suffer. As it is, the defendant’s unsuccessful attempts to cross-

examine on that matter followed the admission of the evidence now impugned. His Honour was not at

that juncture requested to reverse his ruling on the admissibility of exs. 15 to 17, and it is doubtful if he

would have been justified in doing so.

The question is, in the end, whether it is shown both that his Honour exercised his discretion

wrongly in failing to reject the affidavits and that the admission of that evidence occasioned some

substantial wrong or miscarriage of justice within the meaning of s.13 of The Supreme Court Act of

1874. Apart from any other consideration, the fact that at the trial there was both oral and affidavit

evidence to the same effect from Miss Dent, who was cross-examined by counsel for the defendant,

makes it impossible to say that any such miscarriage resulted. The argument that, although the evidence

from Mrs Ferguson was before them, the jury ought to have been told not to act on it at all does not

bear scrutiny. Once the evidence was admitted, it was necessarily there for the jury to give such weight to it as in all the circumstances they thought it deserved. See Evidence Act, s.102. In order to ensure

that the jury were not unduly influenced by the documentary nature and the formal appearance of the

affidavits, his Honour exercised his discretion under s.99 of the Act to withhold them from the jury

during their deliberations.

Relevance of the claim to privilege. The submission that the judge should have directed the

jury to view Mrs Ferguson's affidavits with the "utmost caution", and that, in the light of her claim to

privilege, he gave "inadequate directions" concerning her evidence, perhaps merits closer attention.

What his Honour said to the jury in directing them on the issue of fraud was that as a matter of law the

fact that Mrs Ferguson had now refused to answer questions concerning the execution of ex. 2 by the

deceased did not provide evidence that she fraudulently witnessed the will on 25 September 1991; nor

did her refusal to do so mean "that the contrary of what she swore in those affidavits [exs. 15 and 16]

has been proved". His Honour said that, as a matter of law:

"her reluctance now to answer questions concerning the execution of Exhibit 2, if taken at its highest, can only cancel out her earlier evidence to the effect that she witnessed Frank Lewis' signature on 25 September 1991 and was present when Miss Dent signed the will as a witness."

It is clear from exchanges between counsel and the judge which preceded or followed the summing up

that in giving this direction his Honour was relying on the well-known dictum of Scrutton L.J. in Hobbs

v. Tinling [1929] 2 K.B. 1, 21, to the effect that if a witness swears he did not go to Rome, and his

credit is destroyed, it affords no evidence that he went to Rome; “there is simply no evidence on the

subject”.

What was said in summing up adopted this aphorism of the learned Lord Justice. It was, as the

trial judge also said, open to the jury to accept as true what Mrs Ferguson had said in exs. 15, 16 and

17, while accepting that for some reason, "of which we are all unaware", she had decided not to give sworn evidence on the point. That was, he said, a matter for them to decide. Alternatively, they could

reject her evidence in those exhibits; but, if they did so, it did not provide a basis for concluding that she

fraudulently witnessed the will. In my opinion, her refusal to testify on grounds of possible incrimination

was, as regards the particular reasons for her doing so, inscrutable. It was incapable of raising an

inference, as distinct from a mere conjecture, of impropriety in the execution of the will on 25

September 1995: cf. Jones v. Dunkel (1959) 101 C.L.R. 298,304 (Dixon C.J.), 305 (Kitto J.) It

would have been wrong to invite the jury to speculate about the reasons why she claimed privilege; it

may, for example, have been due to mistaken legal advice. If Mrs Ferguson had not been called at all,

proof of her claim to privilege would have been a sufficient explanation of her absence: Payne v.

Parker [1976] 1 N.S.W.L.R. 191, 202, per Glass J.A., citing Wigmore, par.286. In these

circumstances it was not incorrect to tell the jury that her unwillingness at the trial to answer questions

concerning ex. 2 operated at most simply to "cancel out" her evidence in those exhibits. Indeed, the

direction in question may have been unduly favourable to the defendant.

His Honour's directions as to how the jury should approach the evidence of Mrs Ferguson were

repeated in substantially the same terms later in the summing up. In each instance it is clear that the trial

judge was directing the jury on the issue of fraud raised by the defendant (Question 10). He said so

explicitly on both occasions. His Honour was not then referring to the matter of "suspicious

circumstances". Indeed, it is clear that it was not submitted by the defendant at the trial that her claim

of privilege from giving evidence was, or gave rise to, a circumstance of suspicion. That is apparent

from the matters that were specifically enumerated in the summing up as those being relied on by counsel

for the defendant as the “suspicious circumstances”, as well as from the application for redirections at

the end of the summing up. No redirection was sought by counsel for the defendant to the effect that Mrs Ferguson’s claim of privilege was capable of being considered as a suspicious circumstance. All

that was asked for was that the jury be told that they should be extremely reluctant to act on Mrs

Ferguson's affidavits, and also that his Honour should, in the course of the summing up, have read out

to the jury the provisions of the sections of the Criminal Code on which Mrs Ferguson relied in claiming

privilege. Having sought these directions, Mr Griffin Q.C. went on to another matter, saying: "Your Honour, the other matter is this: in relation to suspicious circumstances, in my submission, Your Honour should direct the jury as a matter of law that the fact that different pens were used, particularly against - in the context of the witness asserting otherwise, but the fact that different pens were used is itself a suspicious circumstance, that is always a central feature looked at in relation to the execution of wills when the execution is disputed".

From this it is clear that no submission was made and no redirection was sought in order to raise

with the jury the possibility of regarding Mrs Ferguson's claim to privilege against self-incrimination as

itself a suspicious circumstance, or even as a matter from which such a suspicion might be inferred or

derived. It must in any event be doubtful whether the fact that an attesting witness subsequently claims

privilege from incrimination, and does so for reasons which can only be a matter for speculation, is

capable of being considered a circumstance relating to the execution of the will and having a direct

bearing on the question whether the testator knew and approved its contents: cf. Estate of Lavinia

Musgrove [1927] P. 264. In any event, however, because it was not relied on at the trial as amounting

to a suspicious circumstance as distinct from a matter going to fraud, Mrs Ferguson’s action in claiming

privilege cannot on appeal for the first time be relied on as having that character after the verdict of the

jury is in. The jury were never invited by the defendant to approach it in that way at the trial. Paragraph

2(i)(i) of the grounds of appeal therefore also fails. As to the other matters raised in sub-paras. (a) to

(f) of ground 2 of the notice of appeal, there was in my opinion no obligation on the trial judge to give

the directions sought in those sub-paragraphs. No authority has been cited suggesting he was bound to do so. Directions of that kind might have been appropriate in a criminal trial in which the onus and

standard of proof are different; but this was a civil matter in which the issues were to be determined on

the balance of probabilities.

The reputation of Father Lewis. The remaining grounds of appeal concerning the conduct

of the trial appear in grounds 2(l), 2(m) and 2(o) of the notice of appeal. The first complaint is that the

trial judge was wrong in refusing to permit questions relating to the way in which Theodore Lewis

conducted his church at Auchenflower. The matter was the subject of debate and ruling before that

witness began to give his evidence. The questions it was sought to put were that Father Lewis ran his

church so as to encourage attendance by persons who were homosexuals and lesbians. It is not

unimportant to notice that the questions, or rather the answers if they had been given in the affirmative,

were said to go not to credit but to the issue, "since the questions bore on the likelihood of [the

deceased] Frank Lewis having completed a will on the occasion alleged". The idea that, despite an

assumed aversion on his part to homosexuals and lesbians, the deceased would have attended a function

and taken communion at the church to celebrate his son's silver anniversary as a priest while

nevertheless scrupling to execute his will there, is simply too fanciful to merit rational consideration. His

Honour was plainly correct in regarding the evidence as too remote to be relevant to any issue in the

case, and in ruling that the questions should not be put.

Ground 2(m) belongs to a similar category of complaint, although in this instance the questions

were acknowledged to go to credit and not to the issue. Again, they were the subject of debate and

ruling before attempting to put the questions. From the course of that discussion, it is nevertheless

possible to conceive the form the questions might have taken. It was proposed first to put to Father

Lewis that he had at some time in the past been charged with indecency, and had failed to answer his bail, which in consequence had been forfeited. The latitude allowed to cross-examining counsel is, no

doubt rightly, very wide; but there is a judicial discretion to stop it where it can serve no useful purpose

apart from calumniating a witness. See Evidence Act 1977, s.20, and the authorities referred to in R.

v. Judge Noud, ex p. MacNamara [1991] 2 Qd.R. 86, 93-96. It is impossible to say that an

admission by a witness that he had been charged with indecency and had elected to forfeit his bail

would, to use the expression in s.20 of the Act, "materially affect the credibility of a witness" in a case

like this where the allegation against him was that he had forged or fabricated a will.

The other topic of proposed questioning stands on a different plane. It was intended, on

instructions from the defendant based on what she said the deceased had told her, to cross-examine

Father Theodore to the effect that the deceased had at some time in the past gone overseas "to bail out

[his son] in relation to a charge of issuing dud cheques ... it was either Greece or Italy, but it was in

Europe". The difficulty in this instance was presented by s.15A of the Evidence Act which prohibits

questioning about the commission of an offence if the rehabilitation period (which is 10 years) has run.

Father Lewis had been overseas for many years before his return to Australia in 1980; in fact it must

have been for at least as long as 25 years before the silver jubilee of his ordination in 1991 because he

had been ordained overseas by a bishop for the Syrian Patriarchate of Antioch. There was therefore,

on the limited extent of counsel's instructions, a real possibility that the question if allowed might have

contravened s.15A. As it is, the learned judge did not in terms rule that the question could not be put,

but simply offered strong discouragement to its being asked. That, according to the practice followed

in Queensland, is not enough to enable it on appeal to be regarded as a ruling of inadmissibility. See

the authorities referred to in McLean v. Kalanda Constructions Pty. Ltd.(C.A. 221 of 1994; June

20, 1995). Requiring counsel to put the question means that he runs the risk of producing a mistrial if the question or the evidence is inadmissible. As such, it operates as a useful deterrent to irresponsible

questioning.

The evidence of Marilyn Lewis. To explain the point raised by ground 2(o), it is necessary

to refer to some of the detail of the evidence given by Mrs Marilyn Lewis, who is Theodore's former

wife. At the trial she was called by the plaintiff and gave evidence of an occasion in February 1992

when she received an unsolicited telephone call in Bundaberg from a Mr Bob Mackenzie. He

introduced himself to her as a member of the firm of solicitors (whom he named) then acting for the

defendant. According to her account of the conversation, he asked her if she knew about Father

Theodore’s past. Mackenzie said that Theodore Lewis had had to leave Greece in a hurry because he

had uttered false cheques; he had been in gaol there, and his father had had to go and bail him out; and

that the defendant had confirmed this with Interpol. Mackenzie said that the defendant “felt for” Mrs

Marilyn Lewis’s daughter Rachel, and would like to offer $50,000 to be paid into a trust account “if you

wanted to co-operate with her side in the case when it comes up”. Marilyn Lewis said she would have

to check with her solicitor about that. He then suggested it was in Mrs Lewis’s best interests for the

respective solicitors to arrange a meeting and have a formal document written out. Mackenzie also gave

Marilyn Lewis a telephone number where she could telephone the defendant Sheila “this arve”.

After consulting her solicitor, Marilyn Lewis called the number she had been given. The

defendant answered. Marilyn Lewis said she had rung her solicitor about Mackenzie’s proposal. The

defendant explained that Mackenzie was the “junior partner” for those solicitors, whose name she gave.

The conversation ended there. “A long time afterwards”, as Marilyn Lewis described it, a meeting was

arranged between the solicitors, which she attended after being telephoned by the defendant’s solicitors

and told she would be subpoenaed at the trial. At the meeting those solicitors said they did not have a man named Mackenzie working for them. Subsequently, she was subpoenaed by the defendant to

attend the trial in Brisbane as a witness.

Before it was called and tendered, the evidence of Marilyn Lewis was objected to by counsel

for the defendant. It was allowed in on the basis that it was capable of being considered by the jury as

an admission, constituted by conduct on the part of the defendant, that the defendant had no case of

fraud and was looking to Marilyn Lewis to assist her in making one. See Moriarty v. London

Chatham & Dover Railway Co. (1870) L.R. 5 Q.B. 314, which is authority for saying that such an

inference is capable of being drawn from conduct of that kind. In the present case the offer of $50,000

for the benefit of Rachel as a quid pro quo for Marilyn Lewis’s co-operation with the defendant’s side

at the trial was capable of being viewed as an indication of the defendant’s own assessment of the

weakness of her case, particularly when taken in conjunction with Mackenzie’s efforts in the course of

the conversation to impute dishonesty to Father Theodore. The defendant’s assertion that Mackenzie

was a junior partner in the firm of solicitors, then acting on her behalf, is some evidence on which the

jury could rely as showing that, in approaching Marilyn Lewis and offering the money, he was acting on

instructions from the defendant.

Lack of balance. Finally, para. 2(j) of the notice of appeal contains the general complaint that

the summing up lacked balance, by putting the defendant's case before the jury on the basis of

contentions by counsel for the defendant and making "a comprehensive critique" of the defence case but

not of the plaintiff's case.

Complaints like these are so much a matter of impression that it is always difficult to address

them except in a general way. The criticism that, in referring in the summing up to the defence case, the

trial judge introduced what he said by phrases like "Mr Griffin Q.C. says" or "counsel for the defendant says" was largely a consequence of the fact that almost the only evidence at the trial came from the

plaintiff's side of the record. Given that state of affairs, it was scarcely possible to refer to the defence

case in any other way. The same is true of the assertion that the defence case but not the plaintiff's case

was comprehensively criticised. Apart from the speculation aroused by Mrs Ferguson's claim of

privilege, there was very little to the defence case except Mr Marheine's evidence that the signatures

of the subscribing witnesses were in different inks and had been written on ex. 2 while it was lying on

surfaces that were not identical. Mr Farthing's evidence, if accepted, was virtually decisive on the issue

of fraud, and, once that question was resolved in favour of the plaintiff, it is not easy to see that the same

issue could be resurrected under the guise of "suspicious circumstances".

By contrast the jury may well have regarded the plaintiff's case as a particularly strong one. The

timing of their verdict suggests they did. They may have considered it not unnatural that a man in

advancing years, who from suffering a recent heart attack had already received indications of failing

health, should have given thought to providing for his children in the closing period of his life. His

attendance at the celebration of his son's ordination may readily be seen as a gesture of reconciliation

of which the execution of the will (ex. 2) was a part. Equally the jury might have taken a distinctly

unfavourable view of a defendant who preferred the well of the court to the witness box, while at the

same time using that vantage point to slander Father Lewis with unsubstantiated and irrelevant

imputations.

The defendant’s persistent attempts to get before the jury her allegations of homosexuality on

the part of Father Lewis seem finally to have succeeded when, at the insistence of counsel for the

defendant, Marilyn Lewis's notes of the telephone conversation with Mackenzie were admitted as ex.

32. The jury may nevertheless have thought it was a matter having as little relevance to the issues in the case as the frequency with which Father Lewis saw his daughter Rachel, which was another matter

about which the defendant insisted on cross-examining him. They may even have felt that, behind it all,

there was on the part of the defendant a determination to blacken his character in the hope of forcing

a settlement of her claims. It was a possibility to which the jury were entitled to turn their minds and is

one reason why the human experience of juries in a case like this is often valuable. It was the defendant

who asked for trial by jury.

In my opinion, there is no basis on which their verdict can be upset.

Costs. The final question is one of costs. After hearing submissions some time after the trial,

his Honour ordered the defendant to pay the plaintiff's costs. Shortly before the appeal came to hearing,

leave to appeal against that order was obtained from the trial judge in conformity with s.9 of the

Judicature Act. It remains for the defendant to demonstrate that, in making the order for costs, the

judge's discretion miscarried.

His Honour was influenced principally by two considerations. One was that the defendant had

made an allegation of fraud which had failed to find favour with the jury. The other was that,

independently of that issue, she had failed to make reasonable inquiries, for example by attempting to

interview the two attesting witnesses, until the very eve of the trial. She had not taken advantage of the

procedure afforded by the Rules of giving notice of opposition under O.25, r.19 and then

cross-examining the witnesses produced in support of the will. If she had done so, she could not have

been made liable in costs unless the court was of the opinion that there was no reasonable ground for

opposing the will. Having considered the principles laid down in Williamson v. Spelleken [1977]

Qd.R. 152 and Horsley v. Dunlop (1893) 5 Q.L.J. 85, the learned judge concluded that the defendant

had failed to satisfy him that she had been led to an honest belief that there was good ground for impeaching the will. Standing alone, this was practically decisive against the defendant on the question

of costs.

It has not been demonstrated that, in making the order for costs, the primary judge was

influenced by any mistake of law or fact. It was submitted that, in adopting an approach that costs

should follow the event, the learned judge had applied a wrong principle which vitiated the exercise of

his discretion. In that regard, reference was made to Re Herbert (1990) 101 F.L.R. 279, particularly

at 306, in the judgment of Kearney J. However it is evident that in the Northern Territory a complete

discretion over costs is invested in the judge. In Queensland the matter is governed by O.91, r.1,

which, after conferring a general discretion, adds two provisoes of which the second is that:

"... when any cause, matter or issue is tried with a jury, the costs shall follow the event, unless the Judge by whom such cause, matter or issue is tried, or the Court, shall for good cause otherwise order."

Differences between the provisions of the Queensland rule and other rules based on the English Rules

of the Supreme Court were adverted to in Barameda Enterprises Pty. Ltd. v. O'Connor [1988] 1

Qd.R. 359, 391. In the present case, the matter is regulated by the second proviso to O.91, r.1,

because the cause was tried with a jury. That being so, costs followed the event unless the trial judge

otherwise ordered: see Wheeler v. Riverside Coal Transport Co. [1964] Qd.R. 113, 115. The

learned judge was therefore not at fault in adopting the approach he did in making the order for costs

in this case.

In my opinion the appeal should be dismissed with costs.

Evidence, Australian ed. para.25105; Stone & Wells "Evidence - Its History and Policies" (1991) at 567-8.

116 at 158 per Holroyd J.; Lamb v. Munster (1883) 10 Q.B.D. 110 at 114.

384; Wentworth v. Lloyd (1864) 10 H.L.Cas. 589 at 590, 592; R. v. Petrie (1946) 47 S.R.(N.S.W.) 20 at 29; Dolan v. AOTC (1993) 42 F.C.R. 206 at 214; Pappas v. New World Oil Developments (1993) 43 F.C.R. 594 at 595; Cross on Evidence Australian ed. para.25040; Phipson on Evidence (14th ed.) at para.20-05.

114.

Baron Park, Baron Alderson; Bartlett v. Lewis (1862) 12 C.B.(N.S.) 249 at 257; Stone & Wells (supra) at
571-2; Wilkinson "The Scottish Law of Evidence" (1986) at 90.

v. Great Western Railway (1930) 144 L.T. 194 (H.L.) and Holloway v. McFeeters (1956) 94 C.L.R. 470 at
483; Cofield v. Waterloo Case Co. Ltd. (1924) 34 C.L.R. 363 at 375.

101 C.L.R. 226 at 235-6.