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  • Unreported Judgment

Re Thomson

 

[2015] QSC 29

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

In the Estate of Arthur Aitchison Thomson [2015] QSC 29

PARTIES:

THE PUBLIC TRUSTEE OF QUEENSLAND

(applicant)

FILE NO/S:

SC No 7789 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 February 2015

DELIVERED AT:

Brisbane 

HEARING DATE:

19 November 2014

JUDGE:

Boddice J

ORDER:

The estate of Susan Ellen Thomson includes the property at Lots 2 and 3 on RP 187955 and located at 54 Reinkes Road, Wooroolin in the State of Queensland.

CATCHWORDS:

SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS – where applicant Public Trustee of Queensland, as the administrator of the estate of Arthur Aitchison Thomson (Arthur), applied for declaratory and other relief in that estate

SUCCESSION - FORFEITURE WHERE TESTATOR OR INTESTATE KILLED UNLAWFULLY – GENERALLY – where Arthur was in a de facto relationship with Susan Ellen Thomson (Susan) – whether, on the balance of probabilities, Arthur unlawfully killed Susan

SUCCESSION – INTESTACY AND DISTRIBUTION ON INTESTACY – where Arthur died in 2006 – where a coronial inquest was held in 2007 in relation to the suspected death of Susan – where the inquest had found that Susan was dead, but did not make findings as to the date or cause of Susan’s death – common law presumption as to death that a person is dead seven years after the person is last seen, however there is no presumption as to the specific date of death  whether, by reason of a right of survivorship of the joint tenancy, the estate of Arthur included property co-owned by Susan – whether, by reason of a right of survivorship of the joint tenancy, the estate of Susan included property co-owned by Arthur

Coroners Act 2003 (Qld)

Public Trustee Act 1978 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336, applied

Neat Holdings v Karajan Holdings Pty Ltd (1992) 110 ALR 449, applied

Re Parker [1995] 2 Qd R 617, applied

Re Phene’s Trusts (1870) LR 5 Ch 139, applied

COUNSEL:

A P J Collins for the applicant

SOLICITORS:

The Official Solicitor to the Public Trustee of Queensland for the applicant

  1. BODDICE J:  By originating application filed 19 August 2014 the Public Trustee of Queensland (“the Public Trustee”) seeks declaratory and other relief in respect of the Estate of Arthur Aitchison Thomson (“Arthur”).  That relief directly affects the Estate of Susan Ellen Thomson (nee Warren) (also known as Shaw and Thomsen) (“Susan”).  Both estates are administered by the Public Trustee.
  1. On 27 August 2014, Philip McMurdo J ordered the following question be determined, by separate determination:

“The issue as to the constitution of the estate of Susan Ellen Thomson and whether that estate includes any interest in the property at Lots 2 and 3 on RP 187955 and located at 54 Reinkes Road, Wooroolin in the State of Queensland.”

That question arises out of the present proceeding as Arthur and Susan jointly owned the property referred to in the separate question. 

  1. Arthur took his own life on or about 26 August 2006. Susan was last known to be alive in or about December 1999. Although no body has ever been found, Susan was declared dead following a coroner’s inquest in 2007. At issue is whether Arthur unlawfully killed Susan, and if so, on what date. That determination materially impacts whether Arthur’s estate is entitled to the interest it would receive as a consequence of his survivorship of the joint tenancy.

Background

  1. On 26 August 2006, police attended the property at 54 Reinkes Road, Cushnie (“the property”). It is located in a remote rural area near Wondai in the State of Queensland.  Police had received information a woman had been found dead.  The woman was Arthur’s mother, Isabella Margaret Thomson (“Isabella”).  Both Arthur and Isabella were residing at the property in 2006.
  1. Isabella was born on 16 June 1920 in the United Kingdom.  She was 86 years of age at the time of her death.  The cause of death, nominated in the death certificate, was:

“1.Coronary atherosclerosis; and

  2.Pneumonia, emaciation.”

Isabella’s body had been found tucked tightly in bed in the house on the property. 

  1. A police search of the area surrounding the house located Arthur’s body in a motor vehicle in a shed on the property. Arthur, Isabella’s only child, was aged 64 at the time of his death. He had been born on 13 January 1942 in the United Kingdom.  His cause of death was nominated as “gunshot wound to the head”. 
  1. A search of the house revealed three items of significance. First, on a calendar in the kitchen, “Mum gone 1.30am” was written with a line down to the date 15 August. Second, a handwritten note was found under the electricity box on the front verandah. It read “Ring 000. We are both dead. Mum in bedroom. Me in shed. Thanks”. An electricity notice found in the house suggested the electricity meter was due to be read in the near future. Third, in a piece of furniture, police located a copy of a letter Susan had written to her mother in 1999.
  1. That letter, dated 8 November 1999, was in the following terms:

“Firstly I can’t ring you as the destination will come up on the bill.  I think the best thing to do is you write me a letter telling me about what happened the day Dad died and about the funeral, keep it simple and straight-forward (he will read it).

I don’t know when something might happen but things are very strained, one day things OK.  Next day at each others throats.  (When he’s home).

Sometime after you’ve written the letter ring if I can’t talk I’ll say you must have the wrong number.  If Arthur was to be here and answer ‘hang up’.  He must never know we’ve made the initial contact.  Even to do this letter is risky.

PS  Sign the letter Mum not Love Mum.

Love Sue.”

  1. The contents of this letter led police to fear for Susan’s safety and they undertook enquiries as to her whereabouts. Those enquiries revealed Arthur had been in a relationship with Susan for many years but that Susan had not been seen for some years. As a consequence, police conducted an exhaustive search of the property, including the use of cadaver dogs. No remains were found.
  1. Susan, the only child of Marie Shaw, used other surnames such as Warren and Shaw in her lifetime. Susan, who was born on 13 May 1950, met Arthur when she was about 15 years of age. By that stage Arthur was in his early 20s. Susan left home to live with Arthur. Not surprisingly, this caused ill feeling with Susan’s parents, who did not hear from Susan for over five years.
  1. After Susan recontacted her parents, they reconciled and for a time during the 1980s, Susan’s parents lived near Susan and Arthur at Kilkivan in Queensland. Susan’s mother and father moved to Tasmania in about 1986.  Thereafter they remained in regular contact by telephone and mail.  Susan’s father died in November 1999.
  1. Susan was reclusive with few, if any, friends. She rarely left the property. She did, however, keep in touch with her mother and an aunt. The last communication with either of those people was the letter from Susan, a copy of which was found in the house with other important papers after Arthur’s death.
  1. No person has heard from Susan since that correspondence. Susan also has not touched her bank accounts or accessed Medicare or other relevant entities since late December 1999. The Public Trustee undertook advertising in major newspaper publications in July 2009 and October 2014. The requests for Susan to contact the Public Trustee did not result in any contact. Those advertisements specifically indicated Arthur was dead.
  1. Whilst a coronial investigation, completed on 27 September 2007, determined Susan was deceased, the Coroner was unable to determine the date, place or cause of Susan’s death. A death certificate was subsequently issued dated 28 May 2008.

The application

  1. The Public Trustee administers the estates of Arthur and Isabella, pursuant to orders of this Court. The Public Trustee also administers the estate of Susan, pursuant to s 36 of the Public Trustee Act 1978 (Qld).  None of the estates are of significant magnitude.  Isabella’s estate, comprising some chattels and an alleged debt due from Arthur and Susan jointly in respect of a loan used for the purchase of the property, will pass by intestacy.  As Arthur did not survive Isabella by 30 days, the beneficiaries are distant relatives. 
  1. Arthur and Susan’s estates will also pass by way of intestacy. Those estates largely consist of the property and some chattels jointly owned by Arthur and Susan. If this Court determines Susan pre-deceased Arthur by at least 30 days, those items would, by way of survivorship, become the property of Arthur’s estate. If a finding is made that Arthur unlawfully killed Susan, the forfeiture rule would operate to deny Arthur’s estate of the benefit derived from the right of survivorship.[1]  That rule has equal applicability to benefits derived under an intestacy.[2] 

Evidence

  1. The evidence supportive of a conclusion that, notwithstanding no body having been located despite an exhaustive police investigation, Susan died in late 1999 or early 2000, falls into four categories.
  1. First, there has been no contact with Susan’s loved ones since late December 1999. This lack of contact is significant, as both Susan’s mother and aunt say they enjoyed a strong close relationship with her, which included frequent telephone and mail contact prior to December 1999. Neither has had any contact from Susan since December 1999.
  1. Second, a review of Susan’s financial and health records reveal an absence of any transactions since December 1999. Susan’s last use of the Medicare system was on 22 December 1999, when she attended upon her general practitioner at Kingaroy in Queensland.  The Medicare records reveal Susan had attended upon her general practitioner on 16 January 1998, 31 July 1998, 5 July 1999 and 22 December 1999.  Those records suggest a frequency of visits which would be inconsistent with a failure to use the Medicare system at all since late December 1999.  Similarly, there has been no financial activity by Susan on her banking records. 
  1. Third, searches undertaken by the Salvation Army in the second half of 2000, at the request of Susan’s mother, were unsuccessful in locating Susan. Extensive inquiries undertaken by the Queensland Police Service from 2006 have also not produced any evidence of Susan’s whereabouts.
  1. Fourth, Arthur’s conduct subsequent to Susan’s last known contact confirmed Susan was no longer at their property from early 2000. Bruce McAndrew, a friend of Arthur, told police Arthur told him he had separated from his wife about seven years before his death. He said he and Arthur had had a falling out about 18 months to two years prior to Arthur’s death. He had not seen Arthur much since that time. However, a couple of weeks before Arthur’s death, Bruce had been told by a friend that Arthur had got “the dreaded C” and the doctor said he might live to Christmas at the most. He took that to mean that Arthur had cancer. This friend told him that Arthur had shaken his hand and said he would not be seeing him again. Other people had also mentioned to him that Arthur did not look well. Mr McAndrew told police that Arthur was the type of person who would “shoot himself” rather than suffer.
  1. Steven Goldthorpe, who met Arthur in about mid-1998 when he called looking for work, told police Arthur had said Susan had left him. Arthur said they had had an argument and he had driven her into Kingaroy to catch a bus. Mr Goldthorpe remembers Arthur dropped her at the bus station “at a real odd time in the morning”. He understood Arthur was cranky at Susan because he had lost a dog that was in pup and he blamed her for losing it. Arthur initially did not seem very concerned about Sue leaving but after a while expressed concerns he did not know where she was or if she was with somebody else. Arthur talked to Mr Goldthorpe about his concerns as to whether Susan was still in the area and likely to cause him grief regarding a property settlement. His recollection was that Susan left Arthur in about mid-1999.
  1. Mr Goldthorpe further recalled that when Arthur was due for holidays between April and September 2000, he told him he was going to Tasmania to see Susan’s mother and to look for Susan.  When Arthur returned from his holidays he told Mr Goldthorpe he had spoken to Susan’s mother but could not find Susan.  Thereafter, Arthur would mention off and on about looking for Sue. 
  1. Robert Edward Mason told police he had had conversations with Arthur in late 2005 wherein Arthur told him he had an ex-wife who had been missing for about six and a half years and that he had gone down to Tasmania to look for her. Arthur told a drinking acquaintance, Steven Philip Thomas, he had come home one day and found his partner had left him. He said “what Sue did to me has dropped me on my knees and I don’t think I’ll ever recover”.
  1. Marie Shaw, Susan’s mother, told police Arthur had appeared unannounced at her residence in Tasmania around Susan’s birthday in 2000.  He stayed overnight and was quite friendly towards her.  Mrs Shaw understood Arthur had come to Tasmania to look for Susan.  Arthur looked over the back fence and over some vacant land as if Susan may have been hiding from him.  Arthur told her Susan had disappeared one day at Gympie.  He had left her to do the shopping but when he returned to collect her Susan was not with the trolley.  Arthur said at around this time Susan had started to dress better and wear makeup, which was unusual for her.  Arthur indicated Susan may have been seeing someone else and had left him for that person.
  1. After that visit, Susan’s mother went to the Georgetown Police Station. They referred her to the Salvation Army. Their Family Tracing Unit made unsuccessful enquiries on behalf of Susan’s mother. She made no further enquiries thereafter and has not heard from Susan since her last letter in late 1999.

Submissions

  1. The Public Trustee submits the weight of the evidence supports a finding Susan died in late 1999 or very early 2000. Further, the contents of Susan’s last letter to her mother, together with the conflicting versions given by Arthur to others subsequent to Susan’s disappearance, support the conclusion Arthur unlawfully killed Susan. The Public Trustee submits the visit to Susan’s mother was a ruse in order to create a story. Arthur’s conflicting versions as to Susan’s disappearance are also consistent with a consciousness of guilt.
  1. The Public Trustee submits the finding of a copy of Susan’s last letter in Arthur’s possessions is of considerable significance. The only reasonable explanation is that Arthur found the original letter and photocopied it prior to the original being sent to the mother. That would provide a compelling reason for Susan to have been at risk of harm from Arthur. There is evidence Arthur had a bad temper, and he has past convictions for violence.

Applicable principles

  1. The present proceedings are civil in nature. The standard of proof applicable to an allegation that Arthur unlawfully killed Susan is that enunciated in Briginshaw v Briginshaw.[3]  That standard of proof, and its further enunciation in Rejfek v McElroy,[4] was discussed by the majority in Neat Holdings v Karajan Holdings Pty Ltd:[5]

“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, parties to civil litigation have been guilty of such conduct.”

  1. In Briginshaw,[6] Dixon J observed:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”

Discussion

  1. Whilst Susan’s last letter to her mother was dated 8 November 1999, Susan’s mother recalls receiving the letter towards the end of November 1999. That recollection is supported by Susan’s mother’s letter in response. It was dated 21 December 1999, and included copies of Susan’s father’s death and funeral notices. Susan’s father died on 26 November 1999. The funeral service took place on 30 November 1999. These dates suggest Susan’s letter must have been incorrectly dated. It appears likely the correct date should be 8 December 1999.
  1. The correct date of Susan’s letter is significant when regard is had to Susan’s last known outside contact, namely, a visit to her general practitioner on 22 December 1999. This significance is increased by the tone of Susan’s last letter. It suggests relations between Arthur and Susan were not good at that time. Susan felt at risk even contacting her mother, although nothing in the letter suggests Susan had been physically threatened by Arthur at that time.
  1. The contents of that letter, and its timing relative to Susan’s last known sighting, supports a conclusion that if Susan died in late 1999 or early 2000, it is more likely than not to be as a consequence of Arthur’s actions rather than an independent cause. It would be too coincidental, in the context of that expressed fear, that Susan independently died in late 1999 or early 2000.
  1. Whilst Arthur’s conflicting version of Susan’s disappearance would be consistent with lies deliberately told by Arthur because he knew the truth of the matter would implicate him in the commission of the offence of unlawfully killing Susan, there is a body of evidence to support a conclusion that Susan left the property in or about early 2000. That is the version Arthur gave his friend Steven Goldthorpe. As Mr Goldthorpe had little contact with Susan at that time, there was no reason for Arthur to volunteer that Susan had left him. Arthur could have said nothing, and it is unlikely Mr Goldthorpe would have even been aware Susan was not at the property.
  1. Similarly, there was little reason for Arthur to engage in an elaborate ruse in relation to Susan’s mother. Not only did travelling to Tasmania involve significant expense during Arthur’s holiday period, it placed Arthur at risk that Susan’s mother would immediately contact police and raise concerns as to Susan’s safety. This risk was highlighted by the contents of her last correspondence, something Arthur would have known if he had copied the letter.
  1. There is no good reason for Arthur to take that risk. There is no suggestion Susan’s mother or aunt had been contacting Arthur seeking Susan’s whereabouts. It appears at the time nobody was concerned she was missing. Against that background, it is strange Arthur would engage in such an elaborate ruse.
  1. It is also significant that Susan’s mother does not appear to have considered it to be a ruse at that time. Whilst Susan’s mother went to police after Arthur left, that was in the context of reporting Susan missing, a context supported by the police referral of Susan’s mother to the Salvation Army’s Family Tracing Section. If Susan’s mother feared for Susan’s safety, she would have reported that to police with the likely result they would have been shown Susan’s last letter. This would likely have engendered an official response by police, including a visit to Arthur and the property.
  1. Susan’s mother also gave evidence that at the time she believed Arthur was looking for Susan. He had searched the property to see if Susan was hiding from him. That is remarkable conduct if Arthur had unlawfully killed Susan by this date. There is no good reason for him to undertake that search as Susan’s mother expressed no concerns at that time.
  1. The evidence Arthur was violent towards Susan is also scant. The doctor’s report suggestive of Arthur having significant problems with anger is from a time considerably earlier than the relevant time of Susan’s disappearance. There is no evidence to suggest a history of domestic violence. Even Susan’s letter to her mother did not suggest domestic violence. Those few persons who observed Arthur and Susan together spoke of them having a good relationship. Arthur’s past convictions for violence are also of little relevance; they occurred when he was relatively young.
  1. The Public Trustee also relied on a statement Arthur made to a friend, that he was “doing his penance for something he did in the past”, as supportive of a conclusion Arthur had killed Susan. However, that friend did not interpret that statement as a reference to Susan. The friend understood it to be a reference to his mother’s ill health. It is of little weight in determining this issue.
  1. Similarly, the fact Arthur took his own life, after the death of his mother, is at best equivocal. Mr Goldthorpe’s statement reveals he had been informed Arthur had cancer. If Arthur believed that to be so, he may have had good reason to take his own life following the death of his mother.
  1. An allegation that Arthur unlawfully killed Susan is extremely serious. To establish it, even on the balance of probabilities, would require clear, cogent evidence. Whilst the fact Susan was last seen at or around the time of her last correspondence with her mother, wherein she expressed risks, raises for consideration the question whether Arthur caused her disappearance by taking Susan’s life, the evidence is far from cogent. An equally consistent inference is that Susan, as a consequence of the difficulties in her relationship with Arthur, simply decided to flee. That s consistent with the version Arthur gave to others, and is consistent with the behaviour of both Arthur and Susan’s mother in relation to his visit to Tasmania.
  1. Further, the lack of subsequent contact with her mother and aunt, although inconsistent with their reported close relationship, is of little assistance. That behaviour is consistent with Susan’s behaviour when she ran away to be with Arthur. She did not contact her family for many years thereafter. If, as Arthur told Mr Goldthorpe, Susan had formed another relationship, there was good reason for her to have chosen not to contact any member of her family.

Conclusions

  1. The evidence is insufficient to establish, even on the balance of probabilities, that Arthur unlawfully killed Susan. There is also no evidence sufficient to establish Susan died in late 1999 or early 2000.

Separate determination

  1. That conclusion does not determine the question for separate determination. That question requires a consideration of what constitutes Susan’s estate. The determination of that question requires consideration of whether the evidence placed before this Court establishes Susan was dead by a specified date before Arthur’s death on or about 26 August 2006 (or no more than 30 days thereafter). If it does, Arthur’s estate would be entitled to the property by reason of a right of survivorship of the joint tenancy. If that cannot be established, an issue arises as to whether Susan’s estate becomes the beneficiary of the whole property by reason of a right of survivorship of the joint tenancy in her favour.
  1. At common law, a person is presumed to have died seven years from the date he or she was last seen. However, that presumption does not involve a conclusion the person died on any specific date. Whilst a person, who has not been heard of for a period of seven years by those who would in the normal course of events, be expected to hear from him if he were alive, is presumed dead,[7] there is no presumption as to the date of death within those seven years.[8]  A party proposing the person presumed dead has died on or by by a specified date has to establish that fact by admissible evidence.
  1. The Coroners Act 2003 (Qld) provides a statutory basis for a finding that a person is dead, notwithstanding a lack of evidence as to the circumstances and date of death.  However, the Coroner’s declaration the person is dead, if made in circumstances where the Coroner is not able to make a finding as to the date of that person’s death, does not amount to any finding as to when the person died.  There are also no applicable provisions in the Evidence Act 1977 (Qld) or the Evidence Act 1995 (Cth) to support a conclusion that Susan died on any specific date.
  1. At the time of Arthur’s death, Susan had not been heard of for a period of almost six years by her mother or her aunt, persons who would, in the normal course of events, be expected to have heard from her if she were alive. However, that non-contact occurred against a background of a similar circumstance when Susan left home to form her relationship with Arthur. The difference in the present circumstance is that in addition to no contact, the evidence establishes Susan has not touched any of her bank accounts, or accessed Medicare. There is no evidence of a means by which Susan could access funds or health care in other circumstances.
  1. Those facts would be consistent with a conclusion that Susan, although not declared dead, was dead some years before 2006. However, those facts are also consistent with a conclusion that Susan, having established another life under another name, for good reason has not sought to access her bank accounts or her previous Medicare account.
  1. Ultimately, it is for the Public Trustee, as the party contending for a conclusion that the property passed to Arthur’s estate by way of right of survivorship, to establish that Susan was dead no later than 30 days after Arthur’s death. It is incumbent on the Public Trustee to establish the specific date of death as a matter of evidence.[9]
  1. The admissible evidence does not satisfy me, on the balance of probabilities, when Susan died, let alone in what circumstances. It does not establish Susan died at least 30 days before Arthur’s death on or about 26 August 2006. It also does not establish Susan died on a date that was 30 days or less after Arthur’s death. Without such evidence, Susan is presumed to have been alive at that time, and the property passed to Susan by way of the right of survivorship on Arthur’s death. It properly forms part of Susan’s estate.

Orders

  1. The separate question is answered:

The estate of Susan Ellen Thomson includes the property at Lots 2 and 3 on RP 187955 and located at 54 Reinkes Road, Wooroolin in the State of Queensland.

  1. I shall hear the parties as to any other orders, and costs.

Footnotes

[1] See State of Queensland & Anor v Byers & Ors [2006] QSC 334 at [26];  The Public Trustee of Queensland v The Public Trustee of Queensland and Ors [2014] QSC 47 at [7]-[8].

[2] See Re Tucker (1920) 21 SR (NSW) 175; Re Sangal [1921] VLR 355;  Public Trustee v Fraser (1987) 9 NSWLR 433.

[3] (1938) 60 CLR 336.

[4] (1965) 112 CLR 517.

[5] (1992) 110 ALR 449 at 449-450.

[6] (1938) 60 CLR 336 at 362.

[7] Re Parker [1995] 2 Qd R 617 at 621.

[8] Re Phene’s Trusts (1870) LR 5 Ch. 139 at 149.

[9] Re Parker at 622.

Close

Editorial Notes

  • Published Case Name:

    In the Estate of Arthur Aitchison Thomson

  • Shortened Case Name:

    Re Thomson

  • MNC:

    [2015] QSC 29

  • Court:

    QSC

  • Judge(s):

    Boddice J

  • Date:

    20 Feb 2015

Litigation History

No Litigation History

Appeal Status

No Status