WRITTEN BY Ian Meagher
If you tell the truth, you don’t have to remember anything.
– Mark Twain
It is common in popular TV culture for court room dramas to include terrified witnesses facing a barrage of questions from unrelenting counsel donning robes and wigs. In keeping with this popular conception, evidence in court hearings is typically given in person (albeit the case that how this plays out in practice is often less dramatic). In some instances, witnesses can give evidence by written affidavits, though even then a witness is often required to be available in person to have the fullness of their evidence tested in the witness box. The basis for requiring witnesses to give evidence in person is founded in hearsay rules within (almost) uniform evidence legislation across Australia – here, being our Evidence Act 2011 (ACT). Put simply, in the absence of a primary witness giving first hand evidence of what they saw or heard, the hearsay rule prevents another person, or document, giving evidence of what the primary witness would say, if they were available and present in court (“the hearsay rule”).
Of course, like all good laws, there are exceptions to this general starting point. For instance, in civil proceedings, the hearsay rule does not prevent evidence being adduced of earlier representations made by the primary witness, or documents containing the primary witness’ representations, if the primary witness is “not available to give evidence about an asserted fact”.
But what then constitutes the unavailability of a witness? Certainly death is an obvious black and white example, though anything short of that can fall into a grey area. For example, is a witness that is physically “available” to attend a court hearing, but mentally incapable of assisting the court, captured by the hearsay exception?
Justice Mossop of the ACT Supreme Court recently considered the issue in Hughes v Sangster  ACTSC 178. His Honour was asked to consider whether an Alzheimer’s sufferer, who was:
was truly unavailable for the purposes of the hearsay exception. In the unique circumstances in the Hughes case, His Honour ruled that that the particular witness (“Mrs Hughes”), being the plaintiff in the case, was unavailable. That had the effect of allowing a number of documents – in the form of notes and legal instructions – containing previous representations of Mrs Hughes into evidence, notwithstanding she could not be cross-examined on them.
What were the facts?
Mrs Hughes and the defendant, are mother and daughter; sadly with a difficult history. In 1999, Mrs Hughes and the defendant purchased a block of land in Nicholls as joint tenants (”the Property”). Mrs Hughes financed the land purchase and construction costs, totalling $380,000. It was Mrs Hughes’ position that the agreement with the defendant required the defendant’s 50% contribution (that is, $190,000) to be paid over time in consideration for her respective interest in the Property.
The defendant did not disagree with this starting position. However, she held that, when calculating the $190,000, Mrs Hughes had also agreed to “take into account” an amount of $125,000 which was previously offered to the defendant by Mrs Hughes but never paid. The defendant also maintained that she had paid for a number of household contributions over the years she resided with Mrs Hughes, which should be applied as contributions towards discharging the $190,000 owed by her. Beyond these contributions, it was common ground that the defendant also made various payments totalling $20,000, prior to moving out of the Property in 2007.
The alleged $125,000 contribution came about from a letter written by Mrs Hughes to the defendant in 1997, two years prior to the Property being purchased. In her 1997 letter, Mrs Hughes expressed a desire to discharge the defendant’s mortgage to the tune of $125,000, “should [she] be able to”. As events transpired, Mrs Hughes did not settle the defendant’s mortgage. Equally, a liability of Mrs Hughes to the defendant in the sum of $125,000 was not documented in any way in relation to the purchase of the Property when that transaction took place in 1999. To the contrary, as the defendant made her various payments towards the purchase, Mrs Hughes wrote receipts which noted the running tally of what was left owing on the defendant’s $190,000 contribution. On one occasion, these receipts were confirmed by a counter-note of the defendant which read “$183,000 owing”.
Despite this, a dispute ensued between Mrs Hughes and the defendant from 2007 onwards, when the defendant moved out of the Property and refused to make any further contribution towards it or its upkeep. Mrs Hughes instructed solicitors to negotiate a buy out of the defendant’s share, though the negotiations were unsuccessful. Due to a combination of financial and health reasons, Mrs Hughes was then unable to pursue the matter.
Eventually, in December 2016, Mrs Hughes was diagnosed with moderate to severe Alzheimer’s dementia. In January 2017, her husband, Mr Hughes, was appointed by the ACT Civil and Administrative Tribunal as guardian and manager of Mrs Hughes’ finances and property. Upon his appointment, Mr Hughes sought to downsize Mrs Hughes to a smaller, more maintainable home, in the south coast. However, the unresolved title issue at the Property meant that he could not do so without the defendant’s consent, which was only given conditional upon her 50% interest on the title being recognised.
Left with little alternative, Mr Hughes commenced proceedings in the ACT Supreme Court seeking the Property be sold, with the beneficial interests of Mrs Hughes and the defendant to be adjusted to reflect their respective contributions to the Property’s purchase. As Mr Hughes was not privy to any of the discussions between Mrs Hughes and the defendant which led to the Property being purchased, Mr Hughes relied almost solely on handwritten and typed instructions of Mrs Hughes to her former lawyers, prior to her losing capacity – arguing that the documents were admissible evidence as Mrs Hughes was otherwise not “not available” for the purposes of the hearsay rule.
What was the issue?
Evidence was taken at the hearing from Mrs Hughes’ treating geriatrician, Dr Selvadurai, who confirmed the nature of Mrs Hughes’ Alzheimer’s condition. Relevantly, Dr Selvadurai gave evidence that Mrs Hughes’ condition, despite being in a quite advanced form, did not prevent her from understanding a question. Rather, the difficulty lay in Mrs Hughes inability to retain the question in her mind for long enough to answer it in a reliable way. This medical evidence was relevant in the face of the following nuances to the hearsay rule in the Evidence Act 2011.
Firstly, section 63 of the Evidence Act provides an exception to the hearsay rule, if a person who made a previous representation (here, Mrs Hughes) is not available to give evidence about an asserted fact (here, being what happened in 1999 when the Property was purchased).
Secondly, section 4 to the Dictionary to the Evidence Act defines the ‘Unavailability’ of a person to include, amongst other reasons, if:
… (b) the person is… not competent to give evidence; or
(c) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that difficulty.
Section 13 of the Evidence Act provides guidance as to when a witness may be not competent (for the purposes of the section 4(b) definition above). In the face of section 13, the distinction between the section 4(1)(b) and 4(1)(c) definitions in the Dictionary may often be one with little difference, as section 13 says:
and that incapacity cannot be overcome.
In the context of the evidence given by Mrs Hughes’ geriatrician, the first limb of the section 13 test of competency did not excuse Mrs Hughes from having to give her evidence first hand. If asked a question, her doctor’s evidence was that Mrs Hughes could understand it. However, the argument the followed was whether Mrs Hughes had “the capacity to give an answer that [could] be understood to a question about the fact”. Relevant to that question, the defendant’s submission was that Mrs Hughes’ inability to give a cogent or reliable answer is a distinct issue to whether her answers could be understood. After all, to answer “I don’t remember”, is a response to a question which makes sense. Ultimately though, this is where the broader exclusion at the definition at section 4(1)(c) of the Dictionary was applied by Justice Mossop to find that Mrs Hughes’ Alzheimer’s condition was a mental condition which rendered it ‘not reasonably practicable’ for her to give evidence in person. This permitted her previous instructions to her former lawyers being admitted into evidence, notwithstanding Mrs Hughes was not able to be cross-examined on them.
Of course, just because Mrs Hughes’ notes were capable of being taken into evidence, the question of what weight should be applied to them was a further issue to be considered. In this respect, even in the absence of Mrs Hughes being available to be cross-examined, Justice Mossop considered Mrs Hughes’ notes to be more reliable than the evidence of the defendant, whose evidence on central issues His Honour found to have involved ‘forensically targeted reconstruction’. In particular, His Honour rejected answers provided by the defendant which attempted to avoid the probative value of the receipt signed by the defendant which acknowledged “$183,000 owing”.
What was the outcome?
Notwithstanding Mrs Hughes was not available at the hearing to give evidence (either to advance her case, or to rebut the defendant’s counter argument), Justice Mossop rejected the defendant’s contention that the amount of $125,000 was to be deducted from the defendant’s contribution. His Honour also rejected the defendant’s ancillary arguments that other day-to-day household contributions were “taken into account”.
The Property was thus ordered to be sold, with the defendant’s interests in the Property adjusted to reflect her contributions towards its purchase. As the evidence showed the defendant contributed $20,000 towards the $380,000 purchase price, the defendant’s interest was, in effect, reduced to only 5.26%.
Exceptions to the hearsay rule can be technical. Whilst the breadth of documentary hearsay evidence admitted in the Hughes case may have been an exception to the norm, it equally is true that a party should not assume that their first-hand evidence will be preferred by the court solely on the basis that their opponent is unavailable to give their evidence in the usual way.
Whilst Mrs Hughes is still alive, many elements of her case were analogous to litigation involving a deceased estate where family members have conflicting evidence as to what promises have been made by a deceased (that is, ‘unavailable’) person. In such situations, the courts have held that:
… in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution.
In the case of Hughes, the court applied such caution in rejecting the evidence of the defendant that went to the critical issues of the case. In doing so, Justice Mossop was left finding in favour of Mrs Hughes, notwithstanding she was unavailable for the entirety of the proceeding. Whilst Mrs Hughes may never fully comprehend the ramifications of the outcome in her favour, she may at least now downsize with her husband, as she had sought to do for several years prior to the court proceedings becoming necessary.