The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 | Case summary

Competence to give evidence

Section 13 of the Act is in the following terms: "(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section."
The operation of those provisions was considered by Campbell JA in RJ v R [2010] NSWCCA 263; 208 A Crim R 174 as follows: "[16] Section 13 provides an exception to that general condition of competency to give evidence. Its logical starting point is the presumption, established by s 13(6) that a person is 'not incompetent because of this section' unless the contrary is proved. Section 13 deals with two different types of incompetence - not being competent to give evidence about a fact (at all), and not being competent to give sworn evidence about the fact. The presumption established by s 13(6) applies to both of the ways in which a person might be 'incompetent because of this section'. [17] Section 13(1) enables lack of competency to give evidence about a fact to be established in two alternative ways. One is if the person does not have the capacity to understand a question about the fact, and that incapacity cannot be overcome. The other is if the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. [18] Section 13(1) and (2) recognise that some people might be competent to give evidence about one fact, but not competent to give evidence about another fact. The question about whether a person is not competent to give evidence thus needs to be decided on a fact-by-fact basis, or possibly by reference to classes of facts, unless there is reason to believe that, concerning any fact at all concerning which that person might be called on to give evidence, the tests laid down in s 13(1)(a) or (b) are satisfied, and the incapacity cannot be overcome. [19] If a person is competent to give evidence about a fact (because the presumption of competency to give evidence about that fact is not displaced), a question may then arise about whether that person is not competent to give sworn evidence about the fact. Section 13(3) has the effect that a lack of competency to give sworn evidence about the fact will arise 'if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.' [20] It is to be noted that this test is that the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. Many a lying witness, and many an unreliable witness, has the capacity to understand that he or she is under that sort of an obligation (and thus is competent to give sworn evidence), even though he or she in fact does not give truthful evidence."
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]): "Recollection is quite different from competence. Of course, absence of recollection may, in some cases, co-exist with absence of competence, but they do not necessarily run together. Persons who have no recollection of a matter may be perfectly competent."
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]).

The psychiatrists

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: 1. as to Dr Benjamin, that Mr Ayoub is not "fit to instruct a solicitor or participate in court proceedings"; 2. as to Dr Westmore, that Mr Ayoub "does not have the capacity to instruct a solicitor in the proceedings" and not "fit or able to participate in any legal proceedings"; and 3. as to Dr Phillips, that Mr Ayoub "currently has the mental capacity to take part in a proper manner in the legal proceedings now on foot" and has "regained capacity to give instructions to his legal representative in respect to the proceedings...".
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: 1. Mr Ayoub's ability to "comprehend or competently understand and/or identify various issues and questions is likely to be compromised, particularly if the matters being addressed are complex and if the legal proceedings are lengthy ones"; 2. Mr Ayoub could not "provide answers of sufficient detail or complexity that could be understood as being relevant to questions about a fact or a fact and [sic: in] issue in a question"; and 3. My Ayoub does not have the capacity "to fully understand questions that might be put to him in court proceedings, including questions about business transactions, documents and events which occurred up to four years ago".
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: "Q. And as I read your report [concerning the history obtained from Mr Ayoub]…you have asked Mr Ayoub a series of questions, and then Mr Ayoub has provided his answers to your questions? A. Yes. Q. As the means by which you have obtained your history, is that correct? A. That is correct. Q. And during the course of your consultation with Mr Ayoub on 18 February 2016, Mr Ayoub to your observation, was able to understand the questions you asked of him, is that correct? A. In a general sense, yes. Q. And you in turn were able to understand the answers given to you by Mr Ayoub, is that correct? A. That is correct. Q. Pages one through to the top of page eight, you have addressed a number of different factual propositions with Mr Ayoub, would you accept that? A. Yes. Q. And in respect of each of the several topics which you dealt with Mr Ayoub, you were able to ask him questions about a particular topic, he would answer, and then you were able to understand his answer. Is that correct? A. That is correct. … Q. While that is happening - this is the judge again, doctor - Mr McInerney asked you whether you thought Mr Ayoub understood the question you were asking. The answer you gave was, 'In a general sense, yes'? A. Yes. Q. What did you mean by that? A. Well, his answers were often - it is quite a complex question, of course, your Honour, with and I gave a simple, straight answer. But when you ask a person a question, he when I asked him questions, he would sort of he would say 'yes', or I - or often, 'I don't remember, I don't - I don't remember'. So to what - so he gave an answer which was responsive. But in determining to what extent he knew the answer to the question was compromised at times because of the nature of his responses. Q. I am reading your report. As Mr McInerney's pointed out, very often you - very often, I think about 50 odd times, you have said, 'I asked him X' - A. Yes. Q. - and he said Y.' You have recorded, have you, the substance of what you asked and what he said? A. Yes, your Honour. My report reflects pretty much exactly what occurred during the session with him. Q. Because reading it, and the sense I got was that Mr Ayoub had understood the questions you were asking, and gave for the most part a responsive answer, even if the answer was that he didn't know - A. Yes. Q. - answer the question? A. Or simple - yes. Even if he gave simple answers or not comprehensive, detailed answers, he gave an answer to each question. So there wasn't any suggestion that his he had clarity of consciousness; in other words, he wasn't in touch with his environment. He was, and he could to that extent respond to my questions, but not necessarily in a detailed way."
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: "Yes. The documents I read have suggested to me that the matters might be complex in their nature about which I had had no understanding myself, but they suggested they were complex issues. And I - my conclusions were based on his presentation and his current mental state, that his ability to consider those possible complexities in a detailed, comprehensive way, and respond in a detailed, complex way, other than just providing maybe simple answers, was likely to be compromised because of his major depression."
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: "Yes. His responses to me were, at best, very simple and restricted responses. I note that Dr Phillips had a similar experience with him in terms of the limited nature of his responses. And even in relation to questions where he - there was no obvious forensic gain. So when I asked him, for example, about the - this apparent assault, his responses were very restricted. He - his almost yes or no type answers, and I had to sort of drag that history out of him. So even where he could have given a lengthy elaboration on whatever happened to him at that particular time, he didn't or couldn't or wouldn't."
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: "Q. Looking through your report, it seemed to me that it showed that you had asked Mr Ayoub many questions about facts, and he was able to give you a response which was responsive and which bespoke an understanding of the question. How do I reconcile that with the parts of your report that Mr McGrath has just taken you to, that is, your comments about not being able to understand questions in court proceedings, or give answers of sufficient detail and complexity? A. Yes, your Honour. So if he were asked, and I am creating the history to help perhaps, if he were asked, 'did you own X property in 1994', he would understand the question. But his ability to say, 'I owned it in 1994 or 1995 or 19' - his ability to give an accurate answer is likely to be compromised because of his current illness. So his ability to - and his response probably would be, 'I don't know', or 'I don't remember'. Q. But doesn't that show that he understands the question but just can't give an accurate answer? A. Yes, your Honour. So if it is a different test from fitness, and it sounds like it might be, then the issue is different. So in a fitness matter, as I understand it, he would be required to - he could give his account to the Court in saying, I don't know. I guess the question is whether the Court feels that because of that his ability to give a defence would be compromised."
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): "Q. How long was the interview? A. Two hours. Q. And did Mr Ayoub attend alone so far as you could tell? A. He came alone and remained alone during the interview. Nobody collected him. Q. And in the course of obtaining the history you have described did you ask Mr Ayoub questions about matters of fact? A. Yes, and I was particularly interested in his understanding of why he was seeing me in relation to legal proceedings and I was trying received a most unusual response from him in that he told me he did not understand what the legal proceedings were about which I thought was a very unusual response in that even a person of very limited intelligence, and this man has much better intelligence than that, will have some understanding of why there are legal proceedings. Q. I just asked you whether you asked him questions about matters of fact and you said you did. The next question is did he appear to you to understand the questions you were asking him? A. Yes. Q. And did he give answers to those questions that you could understand? A. Particularly when he moved away from the legal arena and started to talk about other matters his responses were the responses of an ordinary man of probably high average intelligence. Q. And did he give you reason to believe that any answers he gave to you were not correct? A. No."
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): "Q. Dr Benjamin, in your report of 28 September 2015 you expressed the opinion that Mr Ayoub is unfit to properly instruct a solicitor, provide evidence at a court hearing or participate in any mediation. As I read your report of 28 September 2015, you do not refer to any test or criterion against which you are giving consideration to the issue of fitness, is that the position? A. I think I said that, and about his other report in relation to his mental state, that because he was not focused; he did not have enough attention span; that he was pressured in his thinking and speech; that he did not concentrate on issues when I examined him, that he wasn't able to process information and answer questions accurately. That he was, he wouldn't be in any position to participate in court hearings and understand questions and answer them appropriately. HIS HONOUR Q. But he appeared to you to understand the questions you asked him, is that right? A. Yes, not in the first few times, because initially, like when I saw him, he was extremely thought disordered. He was not focused and he was not able to give me answers. He would start to talk about something and then shift to another thing and then shift to another thing. Then you have to bring him back to the question, and it was very hard to get information. After he was medicated, like a month later or thereabouts, he could give me better focused and more appropriate answers. So in the initial phase, definitely not."
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.

The Recyclers (NSW) Pty Ltd v Ayoub

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Judgment (10 paragraphs)

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Cited By (7)