The Recyclers (NSW) Pty Ltd v Ayoub

The second defendant (“Aus Wide Recycling”) has been the registered proprietor of a property at Kembla Grange (the “Property”) since 1 December 2011.

On 6 August 2015 Aus Wide Recycling entered into a lease of the Property with the plaintiff (“Recyclers NSW”) (the “Lease”). The Lease was registered on 18 November 2015. The Lease is for a term of three years, with options to renew.

The first defendant, Mr Michael Ayoub has, at least since 6 August 2015, and at all times thereafter, been in possession of the Property.

Recyclers NSW commenced these proceedings on 13 October 2015 seeking, amongst other orders, an order that Mr Ayoub give it possession of the Property.

On 19 October 2015 Darke J appointed Mr Paul Donnelly, solicitor, to act as Mr Ayoub’s tutor for the purpose of these proceedings.

On 15 February 2016, Mr Ayoub, by his tutor, has brought a cross-claim against, amongst other parties, Aus Wide Recycling and Recyclers NSW seeking (amongst other things):

The cross-claim makes detailed allegations of the circumstances and agreements alleged to entitle Mr Ayoub to such relief and of Mr Ayoub’s involvement in those matters (including in a number of conversations).

On 15 December 2015 Mr Donnelly swore an affidavit, purportedly setting out the circumstances now relied on in support of that cross-claim (the “Donnelly Affidavit”). The Donnelly Affidavit is almost entirely based on information provided to Mr Donnelly by Mr Ayoub including a detailed account of conversations to which Mr Ayoub was allegedly a party.

The proceedings have been expedited and are listed for hearing before me for three days commencing next Wednesday, 2 March 2016.

On 12 February 2016, I ordered that the following questions be decided in advance of the hearing:

I received written submissions from the parties in relation to those questions on 23 February 2016, heard evidence yesterday, and received closing submissions overnight.

It emerged from opening submissions that it is common ground that, whether or not Mr Ayoub is competent, the Donnelly Affidavit is not admissible at the trial. If Mr Ayoub is competent, the affidavit is inadmissible hearsay. If he is not competent, the affidavit is inadmissible by reason of s 61(1) of the Act.

In my opinion Mr Ayoub is competent to give evidence.

Section 13 of the Act is in the following terms:

The operation of those provisions was considered by Campbell JA in RJ v R [2010] NSWCCA 263; 208 A Crim R 174 as follows:

So far as competency to give evidence is concerned, the test is thus whether a person, asked a question about a fact, has the capacity to understand that question, and to give a comprehensible (that is one that “can be understood”) answer to that question.

The nature of the answer given to a question may cast light on whether the person understood the question. But an unresponsive answer will not necessarily bespeak a want of understanding of the question.

A response to a question such as “I don’t know” or “I cannot remember” will not necessarily indicate a want of understanding; indeed, it may indicate the opposite: that the person understood the question but was not able to provide an answer.

As Hughes LJ said in Director of Public Prosecutions v The Queen [2007] EWHC 1842 (at [21] – [22]):

The nature of the answer will of course cast light on whether the person has the capacity to give an answer that “can be understood”. An answer to a question about a fact may be so confused or irrational that it leads to the conclusion that, whether or not the person understood the question, the person was not able to provide a comprehensible answer.

If a party is competent to give evidence about a fact, the further question may arise as to whether that person is competent to give sworn evidence about that fact. By reason of s 13(3) of the Act, a person is not so competent if the person lacks capacity to understand the person’s obligation to give truthful evidence.

In that event (assuming the person is competent for the purpose of s 13(1) of the Act), by reason of s 13(5) of the Act, the person is competent to give sworn evidence if the Court tells the person the three matters set out in s 13(5). Those matters are, to summarise, that it is important to tell the truth, that the person should tell the court if he or she does not know or cannot remember the answer to a question, and the person should not feel under pressure to accept propositions put (typically in cross-examination) with which the person disagrees.

It is common ground in this case that if Mr Ayoub is competent to give evidence for the purpose of s 13(1) of the Act, he is also competent to give sworn evidence for the purpose of s 13(3) of the Act.

No party bears the onus of proving competence or lack of competence However, by reason of s 13(6) of the Evidence Act it is presumed, unless the contrary is proved, that a person is not incompetent. It is for the court to determine whether it is satisfied that there is proof that the person is incompetent. The question is to be decided on the balance of probabilities. (see RJ v R at [24] and RA v R [2007] NSWCCA 251; 175 A Crim R 221 at [11]).

On 19 February 2016 Mr McInerney SC, who appears with Mr Robertson for Aus Wide Recycling, sought an order that Mr Ayoub attend at the hearing of the separate questions to be “cross-examined”.

I refused to make that order and left it to Mr Ayoub’s legal advisers to make a decision as to whether they would call Mr Ayoub on the separate question.

Mr Ayoub was not called.

Neither Mr McInerney, nor Mr Condon SC, who appeared with Mr Josifoski for Recyclers NSW, submitted that I could or should draw any adverse inference from Mr Ayoub’s absence from the witness box.

However, the fact remains that I must decide the question of Mr Ayoub’s competence without myself seeing him.

The only witnesses called on the separate question were Mr Ayoub’s treating psychiatrist, Dr Samir Benjamin (called by Mr McGrath SC, who appeared with Ms Haddad for Mr Ayoub), and two forensic psychiatrists; Dr Bruce Westmore (also called by Mr McGrath) and Dr Jonathan Phillips who was called by Mr McInerney.

Because of their professional commitments, none of Drs Benjamin, Westmore and Phillips was able to attend Court for cross-examination. With the consent of all the parties, their evidence was taken by telephone (in the case of Dr Phillips, from South America, where he is attending a conference). The process proved to be entirely satisfactory, and I am very grateful to each of the doctors for rearranging their professional commitments to assist the Court.

Dr Benjamin has seen Mr Ayoub on approximately 10 occasions since 23 September 2015, most recently on 8 February 2016. Dr Phillips saw Mr Ayoub for two hours on 11 February 2016. Dr Westmore saw Mr Ayoub for an hour on 18 February 2016.

It is common ground between the psychiatrists that Mr Ayoub currently suffers from a challenging mental condition. Evidently, this condition was precipitated by an incident which occurred in or around August 2015 when Mr Ayoub was assaulted by a group of men who, Mr Ayoub believes, were acting at the instigation of one of his brothers.

In their reports, Drs Benjamin, Westmore and Phillips each expressed a different opinion as to the nature of Mr Ayoub’s mental state.

Dr Benjamin opined that My Ayoub has bipolar affective disorder. Dr Westmore opined that Mr Ayoub has a major depressive disorder. Dr Phillips opined that Mr Ayoub has an adjustment disorder with mixed anxiety and depressed mood.

I am not able to make any decision as to which of these diagnoses is correct.

In addition to expressing the opinions set out at [35] the doctors expressed the following (differing) opinions:

These are opinions that might cast light on, but do not address the precisely relevant question, namely whether in giving evidence about a fact Mr Ayoub has the capacity to understand a question about the fact, or give an answer to such a question that can be understood.

In their reports, Drs Westmore and Phillips also expressed the following (differing) opinions, which moved closer to the relevant question.

Dr Westmore stated that:

However, Dr Westmore’s report is replete with a recitation of questions Dr Westmore asked of Mr Ayoub and of the answers that Mr Ayoub gave to those questions. Dr Westmore’s report records some 50 questions he asked Mr Ayoub and Mr Ayoub’s answers to those questions.

Although Dr Westmore reported that Mr Ayoub’s “verbal responses” were “somewhat simple” and often “very limited” a reading of Dr Westmore’s report shows that for the most part Mr Ayoub gave responsive answers to the very large number of questions that Dr Westmore put to him.

On a small number of occasions Mr Ayoub answered that “I just don’t know” or “I can’t remember”. But, in the particular context of those answers, they do not bespeak a lack of understanding on Mr Ayoub’s part about the question; nor a lack of capacity to give a comprehensible answer. On the contrary, they show Mr Ayoub understood the question, but simply could not recall.

In cross-examination, Dr Westmore gave this evidence:

Later Mr McGrath drew Dr Westmore’s attention to the passage in his report that I have set out at [40(b)] above. Mr Westmore said:

Mr McGrath then drew Dr Westmore’s attention to the passage in Dr Westmore’s report that I have set out at [40(c)]. Mr Westmore said this:

It was evident to me that Dr Westmore’s attention had not been drawn to the precise terms of s 13(1). Accordingly, I outlined those provisions to him. He then gave the following evidence in response to questions from me:

Mr McGrath submitted that Dr Westmore was the only expert witness who precisely addressed whether or not Mr Ayoub’s mental state adversely affects his competence to answer questions about facts in issue in the proceedings.

There is some substance to that submission. But the last passage of Dr Westmore’s evidence, especially when read in the context of the detailed account given by Dr Westmore of his interview with Mr Ayoub, points strongly to the conclusion, in my opinion, that Mr Ayoub is competent.

On the other hand, Dr Phillips stated that Mr Ayoub “has the capacity to give evidence in the proceedings”.

In cross-examination Dr Phillips expressed a more robust opinion as emerges from the following passage (in answer to questions from me):

Dr Benjamin was taken to the relevant question in cross-examination.

Dr Benjamin gave more cautious evidence concerning Mr Ayoub’s mental state when he first consulted Dr Benjamin (in September 2015).

Dr Benjamin gave this evidence in answer to questions from Mr McInerney (and then me):

I appreciate that a person with any one of the diagnoses proffered by Drs Benjamin, Westmore and Phillips might find answering questions in a court room to be more stressful than answering questions in a doctor’s room (especially if that doctor is the person’s treating doctor). I also appreciate that the question of a witness’s competence is a matter which will very often have to be dealt with on a question by question basis. However, the weight of professional opinion is that, despite his current mental condition (whatever it may be) Mr Ayoub does have the capacity to understand a question put to him about a matter of fact and does have the capacity to give an answer to that question which can be understood.

Examination of the Donnelly Affidavit points, very strongly in my opinion, to the same conclusion.

The Donnelly Affidavit contains a very detailed account of a complicated series of commercial transactions. That account refers to a large number of documents and to a large number of detailed conversations to which Mr Ayoub is said to have been a party. Mr Donnelly states in the affidavit that almost all of the information contained in it (including as to conversations) was provided to him by Mr Ayoub.

I infer, from the form of the Donnelly Affidavit, that Mr Donnelly asked Mr Ayoub detailed questions about the events therein described, that Mr Ayoub understood those questions and was able to give Mr Donnelly answers to those questions that Mr Donnelly was able to understand.

Further, examination of Mr Ayoub’s cross-claim of 15 February 2016 strongly suggests that it was prepared on the basis of instructions from Mr Ayoub. He must be the person who gave instructions about those matters and must have been able to understand questions asked of him about various matters of fact alleged.

For those reasons, I find that Mr Ayoub is competent to give evidence at next week’s trial.