THE PERSON
by
Matthew Kelly
Smashwords Edition
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Published on Smashwords by:
Matthew Kelly
The Person
Copyright 2011 by Matthew Kelly
All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording, or otherwise) without the prior written permission of both the copyright owner and the above publisher of this book.

This is a work of fiction. Names, characters, places, brands, media, and incidents are either the product of the author’s imagination or are used fictitiously. The author acknowledges the trademarked status and trademark owners of various products referenced in this work of fiction, which have been used without permission. The publication/use of these trademarks is not authorized, associated with, or sponsored by the trademark owners.

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Catchwords:

Wills, estates, proving will in solemn form, meaning of person, meaning of human being, cloning, chimera.

Legislation:

Administration Act 1903 (WA)
Homosexuality and Transgender Equality Amendment Act 2016 (Cth)
Human Cloning Act 2013 (Cth)
Human Reproductive Technology Act 1991 (WA)
Interpretation Act 1984 (WA)
Marriage Act 1961 (Cth)
Prohibition of Human Cloning for Reproduction Act 2002 (Cth)
Wills Act 1970 (WA)

Representation:

Counsel:



Solicitors:



Case(s) referred to in judgment(s)

Attorney-General for the Commonwealth v Kevin and Others [2003] FamCA 94
McEwen v Simmons [2008] NSWSC 1292

SAUL CJ:
Introduction
1: In my third year of study, my lecturer in taxation law (whose name I have, with great apologies to him, since forgotten) made an oft-quoted reference to there being only two certainties in life – death and taxes. It was a flippant remark, humorous by virtue of its obvious truth. Yet even then, in the early months of 1995, I found myself wondering just how accurate the maxim remained.
2: Insofar as it relates to tax, it remains as true now as it ever was. Indeed, perhaps the only thing proven capable of keeping pace with technology is the government’s ability to earn revenue from it.
3: Death, on the other hand, is no longer quite the certainty it used to be.
4: We are not, of course, speaking here about improvements to medicine, spectacular as they have been in recent times. Whilst the average life-span in this country has skyrocketed to 89 when last I checked the statistics (87 for those of us unlucky enough to be born male), the focus remains on delaying death, not avoiding it altogether.
5: Not for lack of trying, it may be said. The regeneration experiments of 2015-16 stunned the world, culminating in the Regeneration Act 2016 being introduced with retrospective effect in this state and similar legislation passed almost universally throughout the world. So disturbing and disastrous were the results of those experiments that the area of research has faded into ignominy since – let us pray that it remains that way.
6: Meanwhile, another field of research has focussed on defeating death in other ways – not by extending life but by starting it afresh. Known until early this century as “cloning”, the process was popularly relabelled in the mid 10’s as “ReGenning” after the commercial enterprise that was substantially responsible for making such techniques available to the masses. For the sake of accuracy, I will use the generic term – as does the legislation.
7: I have listened to many days of expert evidence as to the scientific techniques involved with cloning, and I will endeavour later in this judgment to summarise my findings. I do not, however, wish to distract the reader from the intensely personal nature of this case. This is not a dispute between scientists nor governments nor moral campaigners. This is a dispute between a wife and her husband’s lover.
The Deceased’s Father - James Richard Baker
8: James Richard Baker (“Mr Baker”) was a scientist and a father. Chronologically, he was a scientist first and a father thereafter. In reality, his commitment to fatherhood both directed and determined his scientific achievements, wide-reaching though they were.
9: Mr Baker will already be a familiar name to those in the scientific community. Having been a gifted researcher in the field of medicinal and therapeutic cloning before its sudden surge in notoriety which accompanied the cloning of ‘Dolly’ the sheep in 1996, he accepted a position in early 1997 as research director and financial partner in a fledgling commercial cloning enterprise, Masha Cloning Technologies (“Masha Cloning”) – named after “Masha” the mouse – the first mammal to be cloned, in 1986.
10: Masha Cloning was ground-breaking in its technology and utterly traditional in its business enterprise. Seeing the potential to capitalise on the recent breakthroughs in cloning techniques and the sudden mainstream interest in the science, Mr Baker and his team set about the long, difficult and fiendishly expensive process of developing cloning techniques with sufficient reliability that they could be offered to the public.
11: When they began to trade in late 2011 – seemingly out of the blue and many years ahead of its nearest rival – they had achieved close to a hundred percent success rate in cloning household pets for relatively modest cost. 
12: Suddenly, the emptiness that accompanied the loss of a favourite pet could be filled with a ‘perfect’ replica (genetically speaking). A winning race-horse could be cloned a thousand times, which predictably led to a veritable avalanche of legislation and controversy. New hope was given to those tasked with the protection of endangered species. The applications and ramifications were, and are, seemingly limitless.
13: Whilst the science was breathtaking, the marketing techniques left those at Mr Baker’s previous employ shaking their heads in bemusement. It targeted the vulnerable, honing in on their guilt and loneliness to secure a sale. Inevitably, it was an extraordinary success. To the surprise of all the world, a small Western Australian company had made cloning commercially viable.
14: Whilst many in the scientific community were surprised at Mr Baker’s change of direction, those closest to him were less so. To the scientific world, Mr Baker was a man dedicated to curing the thousands of sick for whom therapeutic cloning held a potential answer. To his friends and colleagues, Mr Baker wanted to cure only one person – his son, David.
Mr Baker’s son, David
15: To avoid confusion (to the extent that it is possible to do so), I note that the “David” just referred to is not the Deceased whose will is the subject of this action. Mr Baker’s son died at the age of 13 – too young to have established an estate, let alone to leave one. Young David suffered from a genetic disorder known as Duchenne Muscular Dystrophy, a disorder which causes the rapid degeneration of muscles. It began in David at the age of 5 and progressed appalling swiftly through his tender years.
16: The evidence of his son’s condition and deterioration was read out as part of an agreed statement of facts. This did not make it any easier to hear and certainly no less tragic. David needed braces to walk by age 8. By age 9, he was confined to a wheelchair – unable to speak, barely able to breathe, his spine curved like a man 80 years his senior.
17: Mr Baker was both passionate in seeking to discover a cure for his son and, as time went on, increasingly desperate. He was convinced that if he could replace the particular genes which were damaged with healthy ones, his son would be cured.
18: Mr Baker shared his time between his son and his research. His wife, a loving and caring mother by all accounts, died when the boy was one – killed in a traffic accident. Mr Baker became the boy’s sole carer and attempted saviour.
19: It was not to be. His research did not progress swiftly enough. The research was brilliant but many years from being complete. As it turns out, a cure was only perfected some years ago – by a Swedish enterprise which, at least to some degree, built on the work done by Mr Baker all those years ago. The cure was some 20 years too late for young David Baker.
Masha Cloning
20: It was in the shadow of his son’s premature death that Mr Baker left his research position – having failed in his mission – and took up a position with Masha Cloning.
21: Much of Mr Baker’s history was obtained from his journals, which he kept (at that stage) meticulously. This is an apt time to quote a passage, as I could not hope to be able to summarise or paraphrase such a personal decision.
“People are talking. Whispering. They think I cannot hear, but I can read everything they are saying in the way they shake their heads, frown, glance nervously in my direction. They say I am a sell-out – that is, when they are using restraint.
And I am. Unashamedly. My wife is dead. My son is dead. Who else do I have to work for but myself? The suffering innocents? I could not do it. If my research saved just one person, I would want to kill them. Why should they live when my son has died?
So what do I do? Nothing? Lie in bed and wait as the waves of loneliness slowly pull me out into the darkness? I must do something. And if I am going to do something, why not do it for myself? Why choose to live in poverty when I, unlike much of the world, have the option not to?
I am a sell-out. If David were still alive, I would be ashamed. But he is not, so I feel nothing.”[1]
22: Whilst his son was alive, Mr Baker had been toying with some ways of improving and streamlining the animal cloning techniques being developed at the time, but he had never had the time nor the inclination to take them beyond mere postulation. Now he put them into practice with, as has been demonstrated in hindsight, spectacular scientific and business success.
23: If his journal is to be believed, at the time he commenced at Masha Cloning, Mr Baker had no thoughts whatsoever of extending the practice to humans – let alone to his own son. True it is that he did not dispose of the multitude of samples he had collected over the years – to the contrary, he removed them from the institute who owned them (but who had full knowledge that he was removing them) and retained them at his house – and later at the Masha Cloning laboratories.
24: His reasoning was simple, and I accept it:
“I have kept some possessions – clothing, toys, favourite books – but none meant a shadow of what his blood meant to me. This was his DNA. His life. His soul. Kevin [his brother-in-law] said I should dispose of it. I told him I would dispose of it when he had thrown away his mother’s ashes and burned his father’s corpse. Kevin has not spoken to me since.”[2]
The birth of the Deceased
25: The first publicly known human clone was created, as most of us now know, on 23 July 2012. Creating a flurry of excitement, fear, hope, hate and, ultimately, legislation by her very existence, Caroline Chang thrust mankind into a new era, where only one parent was required for human reproduction. There have been 14 known clones since then. The government tells us that the low number is the result of the strict legislation that was introduced almost immediately and universally throughout the world once the birth of Ms Chang was reported. Others will say that the legislation did no more than force cloned humans underground. In any case, such matters are not relevant to this action.
26: What is relevant is that, as we now know, Caroline Chang was in fact preceded by another clone – extraordinarily, by more than 17 years. It is beyond doubt on the evidence – and not disputed – that David Patrick Baker was born a perfect clone (an almost perfect clone, as I will explain below) of his deceased younger ‘brother’, David Patrick Baker, on 4 April 2003.
27: As to exactly how Mr Baker accomplished this so far ahead of his time, there is some debate. Without doubt, he was a brilliant scientist who was years ahead of most of his rivals. Also without doubt, he was obsessive and single-minded, caring not about ethics, law nor the destruction of an extraordinary number of human foetuses, illegally obtained. It has been argued by some that he was exceptionally lucky – that if he had tried to do the same again with the exact same techniques, he would not have achieved it again within his lifetime.
28: Again though, the ‘how’ is not strictly relevant to this action. It was done, and David Baker came into being. That is what matters and it is not in dispute.
29: Mr Baker did not, however, simply clone his son. As he writes on 8 March 2000:
“I can do it. I can bring him back, I’m sure of it. David would be back with me, just like before. And just like before, my poisoned genes would take him from me. Would he last longer this time, knowing what we know and with the advances in medicine since? Perhaps. Would it be any less painful to lose him? Of course not.”[3]
30: As to whether it would have been cruel to create the cloned child, knowing his fate, is a different issue. Is a doomed life better than no life at all? 
31: Thankfully, it is a question I do not need to answer, because the boy who was born to an unknown surrogate was, at least on the surface, identical in every way to Mr Baker’s son but without Duchenne Muscular Dystrophy. In that respect he was not a ‘perfect’ clone, but rather an improved one.
32: I do not intend to go deeply into the science of how exactly Mr Baker achieved this. The transcript of the expert evidence will be made public as well as the exhibits tendered in support. It is my duty as a judicial officer to understand the science, and I consider that I do understand it. I do not however profess to be capable of summarising six days of expert evidence and 2,300 pages of scientific documentation into anything which may be considered digestible by an ordinary reader.
33: Mr Baker’s journal is no help in this respect either. It was a journal written for his own purposes, and thus makes no attempt to cater for the uninformed.
34: It suffices to say that Mr Baker needed to remove the particular part of his son’s genetic code which contained the ‘blueprint’ for Duchenne Muscular Dystrophy. This in itself involved scientific breakthroughs which have since revolutionised medicine. Mr Baker’s primary difficulty, however, was replacing the code.
35: Much of his research, which involved thousands of failed experiments, revolved around trying to replace the defective code with healthy code from another human. This was in fact accomplished approximately a decade later by an American team, but Mr Baker was unable to achieve this feat.
36: So Mr Baker abandoned this avenue and focused instead on the much simpler genetic code of non-human animals. It has long been known that the genetic makeup of humans is remarkably similar to that of animals – humans and chimpanzees share 97% of genetic material, but perhaps more surprisingly, humans share 75% of their genetic material with the nematode worm.
37: The premise was that the particular section of David’s DNA that needed to be replaced could be replaced by healthy, non-human DNA.
38: Again, to state it so simply is to grossly simplify many years of intensely focussed and ground-breaking scientific research. I may just as well describe the invention of space travel as “making planes go up”. Yet for the purposes of this judgment, that is enough. He took out the damaged portion of his dead son’s genetic code and replaced it with a healthy portion of non-human DNA.
39: Mr Baker describes the moment of success thus:
“David is coming back to me – not the David who died in my arms, but the new, improved, healthy David. The David who will be able to run in the park with me, play football with me, do all the things he was denied in his first lifetime. He will grow up with me. He will feel the pain of loss when I die, but it will be tempered by the knowledge that I lived a full life, a long life. He will go on, and create new life himself just as he was meant to do.
It was mus spicilegus [Steppe mouse] in the end – my son the mound-builder! My own little chimera – destined to spring from the womb with tail, fluffy ears and a penchant for cheese! I will have to begin work on a running wheel of sufficient size.”[4]
40: Self-evidently, Mr Baker held no genuine concerns as to the inclusion of rodent genetic material – whether this was based on scientific fact or desperate optimism is unclear. What mattered to him was that a child with the same genetic material as his son, save for that part which contained Duchenne Muscular Dystrophy, was to be born.
41: And born he was on 4 April 2003, just over six years since the passing of his predecessor. Not unexpectedly, Mr Baker named him David. From here on in, I will refer to the original child as “Mr Baker’s son”, and the cloned child as “David” or “the Deceased”.
42: Mr Baker immediately changed his role at Masha Cloning. He worked almost exclusively from home so that he could care for his son (who had arrived to the utter surprise of his colleagues). His work remained brilliant, but it was done from a distance. He was a recluse – and considered a somewhat eccentric one – but as long as his work did not suffer and Masha Cloning edged closer to their goal, no-one cared how, where or why he continued to work as long as he did.
David’s early years
43: He did not have a tail, fluffy ears nor an unnatural taste for cheese. He did not exercise in a running wheel, nor spend his days attempting to escape increasingly complex mazes. To the contrary, he appeared by all accounts to be a healthy young boy.
44: Records of young David are taken primarily from Mr Baker’s journal. Although he did not keep the boy in seclusion, he kept a low profile. He was a man of few friends to begin with and no family, but his isolation increased by necessity. People were aware he had a new child whom he said he had adopted. Anyone who might recognise the child as the original David were kept strictly at a distance.
45: By all accounts he was a good and loving father, and his joy at raising young David only improved when, by the age of ten, he was finally confident that the condition which had struck down his original son was, as he had engineered it, missing from this child.
46: This was also the period that Masha Cloning went public, and Mr Baker became an instant millionaire. Only six months later, his job apparently complete and with more important things to spend his time, he sold his shares for $25M and retired. Masha Cloning was renamed “ReGen” and has since become a behemoth in the scientific and business world.
The problems begin
47: Anyone who has raised children would not be surprised to hear that the difficulties started around puberty, although whether or not the problems were caused by ordinary male hormones or something quite different is, to an extent, the very question this court is being asked to decide.
48: Again, I rely upon Mr Baker’s words, who had raised the boy from infanthood:
“It was David’s thirteenth birthday today. I wish I could say it was a day of celebration and joyousness. It was not.
The animosity I have been describing for some time came to a head this morning. He had shown the same ambivalence to his birthday as he had to life in general in the past several months, but I was certain it was nerves or perhaps the ordinary trials and tribulations of a young boy becoming a man. I am no longer sure that is the case.
I woke him early – before the sun had risen. He was curious but not immediately hostile. In what I thought would be an offer graciously received, I took him to Moore River for some fishing. It was to be a birthday surprise, and initially it seemed I had done the right thing for what felt like the first time in a long time.
In fact, it was only when we were there - set up with rods in hand after some two hours of polite if not particularly engaging conversation – that tensions escalated. I mentioned, as barely more than a casual aside, that I had taken David – my first David – to this very spot as a young boy. My first David had caught a snapper - can you imagine, a six-year-old with his condition catching a snapper? – and we had cooked it for dinner that night.
I don’t understand David’s reaction. He went quiet for a while, and then attacked me at the first opportunity, the mildest of opportunities. He does not like talking about my first David – I know it, but I cannot understand it. How can he be jealous of himself?[5]
49: The relationship between David and his father deteriorated as the years progressed. David grew distant from his father. He was a fiercely intelligent child who achieved spectacular school results with what appeared to be little effort. He grew into a tall, solidly-built, handsome young man. 
50: From all accounts, he was respected, admired and feared. He was charming but distant. He was generous and friendly when it was to his benefit, but brutal and vengeful when crossed. He was popular with the girls at school and lost his virginity at a young age – indeed, it seems he was responsible for taking the virginity of a number of his female classmates.
51: He finished high school with the highest tertiary entrance score the school had seen in a decade and left a legacy which would be discussed with awe for some time. What friends he had, he quickly disposed of.
David begins University
52: David enrolled in law at the University of Western Australia and moved out of home a week before his first lecture. It is here that Mr Baker’s journal ceases to have a great degree of relevance and I come to rely upon David’s classmates, friends and lecturers. I will however refer one final time to Mr Baker’s journal – the final entry he ever wrote, written the day after his son moved out:
“I feel like I should say that the house is so quiet. But that is not how it feels. The house feels alive for the first time in years, as if David’s mere presence sucked the life from the walls and the floors and the air itself. Suddenly the house is speaking to me again – rejoicing as if a weight has been lifted.
This is all a lie. It is not the house that has changed. It is me. I am too ashamed to admit that I am glad he is gone. I hate myself for saying it, yet every breath I release is one of relief. His cynicism, his smugness, his cruelty – I will miss none of these things.
Where did they come from? Is this really the David I thought I was bringing back to life? My sweet son – would he really have become this... this distant, aloof man who looks in my direction and sees only the wall behind me? I cannot believe that. I will not.
Then did I fail? Did the process fail?
I need a drink. I will think about it in the morning.”[6]
53: The drink that Mr Baker alluded to turned out to be one of many. It is not necessary for the purposes of this judgment to postulate on the reasons for his descent into alcoholism. No doubt his concerns with David played a part – perhaps that was the only reason or one of many.
54: David continued to see his father during this period. They would meet for coffee or lunch once a week on Sunday afternoon. The only evidence of these meetings are hearsay, but from all accounts they were both perfunctory but considered necessary. David seemed to take no pleasure from them – his father and he by that stage shared little interests – yet he would attend every week without fail, often missing social engagements to ensure he was there.
55: David’s dedication to the weekly meetings did not even appear dented when his father would drink a bottle of wine with dinner or pour bourbon into his coffee – often having finished half a bottle before arrival. David never spoke badly of his father, even it seems in the final few months when his father could not leave his bed without the assistance of vodka. David never offered to help, but nor did he judge. Outwardly, he went through the motions – as to what was happening internally, no-one was able to provide evidence.
56: James Baker committed suicide on 28 July 2022. David was aged 19 and in his second year of law school. The funeral was well-attended despite Mr Baker’s isolation for the best part of two decades. There were many who remembered him fondly – mostly colleagues and a few friends. David spoke well at the funeral, describing him as a “brilliant scientist and loving father”. If he cried for his father, no-one saw him do it.
Mr Baker’s estate
57: David was named executor and sole beneficiary of his father’s estate, worth by that stage over $30M. David liquidated the investments – successful or otherwise – and set up his own portfolio. 
58: Despite his substantial wealth, Mr Baker had owned only one property – the family home which he had bought with his wife in 1984, in which the original David had lived and died, and in which the cloned David had grown up. David engaged an agent to destroy the contents of the house – not sell them, despite their significant value – and to sell the property within a week irrespective of price. As far as anyone could testify, David did not visit the house before it was sold, demolished and replaced by a set of luxury apartments. 
59: UWA offered to postpone his end-of-year exams, but he refused. Not only did he sit the exams, but he obtained the highest scores of his year in five out of six units.
David’s reaction to the death of his father
60: Witnesses found it difficult to describe the change in David after his father’s death, though they all agreed that there was a change. He had always been aloof, but with a glint of life – of humour perhaps – which would shine through at the most unexpected times. It seems that glint had died with his father. He had never been one who felt sympathy easily, whether it be to persons he was close with or starving children in foreign countries. That hardness appeared to be galvanised. There had previously been exceptions – now there were none.
David’s relationship with the Defendant
61: None of this is to suggest however that David was an outcast. To the contrary, he had a group of friends – mostly other law students – who genuinely liked him and enjoyed being in his company. He was charming, confident and had the ability to speak intelligently – disarmingly so, it seems – on an extraordinary breadth of topics. One of these friends was Mr Jonathan Carrol, who gave evidence as follows:
J CARROL: He was brilliant. I think that’s the first thing that attracted most people to him – when you spoke with him, you felt like you were on the verge of being involved with something life-changing, as if he were about to challenge some assumption you’d always made, or correct some misapprehension that had shaped your life.
M KELLY: I’m sorry, Mr Carrol, but this is your friend you’re talking about. If you don’t mind me saying, you make it sound like he was your lecturer.
J CARROL: He was... You would never have idle chatter with him or just laugh about something stupid. But when you spoke to him, he would give you everything. His full attention, his complete devotion to you. He’d always listen, he’d never be distracted. He was honest – sometimes brutally honest, and it could be shocking at first. But then you tried to think of a bad side to that honesty and you couldn’t find one.
62: David and the Defendant, known at the time as Marisa Gemma Carlotta (“Marisa”), began their relationship in their second year of university – the year 2022, less than a month after Mr Baker’s suicide. Despite both attending UWA they had never met – Marisa studied English Literature, and their paths had no reason to cross. Their meeting only a few weeks earlier appears to have been sheer coincidence – both were waiting for a bus to take them into the city. Marisa started up a conversation for no reason other than boredom. They began to talk and ended up having dinner.
63: Marisa gave the following evidence:
DEFENDANT: He was fascinating. I mean, I’d been out with a couple of guys before then, and they were – well, we were 17, 18. We were stupid, and well – they were guys, so they were even more stupid. But David was totally different. He was... I don’t know, I want to say he seemed older but that’s not right. He seemed better. As if he was on a totally different plane to everyone, and he was letting me peek into that world.
64: The relationship developed quickly and, at that time, smoothly. It might be thought that being in a relationship would have released something in David, but Marisa herself said, with an impressive degree of candour:
DEFENDANT: He never changed. I mean, literally, never changed. Not even from moment to moment, let alone over the course of months. He was never angry, never really excited, never... It was like he was watching the world from above – observing. But I loved that person. Some people said he was like a robot, but I said he was consistent. I could meet up with him and know that he wasn’t going to be sulking or grumpy or whatever. It was... odd. Disconcerting even, I guess. But not bad. Definitely not bad.
65: Only six months after they began their relationship, Marisa and David were married on 8 July 2023. 
66: Marisa gave the following evidence of the proposal:
DEFENDANT: It came totally out of the blue. I didn’t expect it – in fact, if anything, I expected him to suddenly get bored with me and break it off. It was the night of his birthday. He didn’t want to go out – he hated his birthday. He refused to celebrate it. So we were just having dinner, pretending it was any normal day. And suddenly it happened – he dropped to one knee and asked, just like that. 
67: David had bought a modest apartment – at least, modest in comparison to his financial capacity – a month after inheriting his father’s fortune, and Marisa moved in after the wedding. In this respect, the following exchange took place during Marisa’s evidence:
SAUL CJ: I must apologise, Ms Baker, if this is either an ignorant or an offensive question, but waiting to cohabitate until after marriage was old-fashioned in my day, let alone now. Why did you wait?
DEFENDANT: I... Sir, I... To be honest, Sir, I got the feeling he didn’t really want to live with me at all. He was so protective of himself that he... I think he was afraid to be seen outside his element – to let me see that side of him. To see him when he’s just woken up, or when he’s sleeping or... But we were married, and... well, he let me move in anyway.
David’s studies
68: During his university years, David began to form a reputation throughout the law school which was both admired and disapproved of. He had an eye for subtleties that I would be grateful to have myself. He identified legal issues which were far beyond his years, and tormented his lecturers and tutors with complex and difficult (but always well-reasoned) questions.
69: Unsatisfied by many of the answers, he began approaching the solicitors involved in famous cases, demanding to know why a particular point was not made or why a particular issue was conceded. Mr Salter, a well known and respected barrister in this Court, gave evidence thus:
P SALTER: It was like nothing I’d ever seen. Every now and again – very rarely – we get uni students contacting us, asking for an opportunity to meet. I try to accommodate them, but of course it’s difficult and, to be quite frank, generally unhelpful to both parties. But I get this letter from Mr Baker – well-written, precise, accurate – brutally attacking the line I took in a TPA case a few years back. I was fascinated, and invited him to speak to me. He walks into my chambers – this 19-year-old kid with less than a year and a half of law school under his belt – and calmly explains to me why I got it all so wrong.
M KELLY: And did you accept his explanation?
P SALTER: I did. But the Judge hadn’t. I’d won the case – but this kid, David Baker, convinced me there and then that I shouldn’t have.
M KELLY: What happened then?
P SALTER: I offered him a job of course.
M KELLY: Did he accept?
P SALTER: No. He said he’d get back to me when he had the time. 
The First ‘Incident’
70: The first ‘incident’ occurred on 7 May 2023 – a date Marisa remembers (not surprisingly I might add) with clarity:
DEFENDANT: I came home from uni at around six-thirty. I was sure David would be home – it was a Wednesday, and his lecture finished at five. He always went straight home, like clockwork. But he wasn’t there. Or at least, I didn’t think he was.
M KELLY: What happened then, Marisa?
DEFENDANT: I went upstairs to get changed. I opened the wardrobe to put my jacket on the hanger and there he was. Inside the wardrobe, totally naked, with... with his thumb in his mouth, like a baby, except he... Except he’d chewed off the end so it was bleeding everywhere, but he just kept on sucking at it.
M KELLY: : What else did you see, Marisa?
DEFENDANT: He was crying, and... and he was sitting in his own faeces.
M KELLY: What did you do?
DEFENDANT: I took his thumb out of his mouth and led him out of the cupboard. He was like a child – just letting me do whatever I wanted with him. I wrapped a bandage around his thumb, cleaned him up in the shower, put a dressing gown on him and drove him to hospital.
M KELLY: Did he say anything during this period?
DEFENDANT: No. He just... whimpered.
M KELLY: What happened at the hospital?
DEFENDANT: I went to the counter and told them what had happened. I left him sitting on the chairs. Then as I was filling out the forms, he was suddenly behind me, with his hand on my shoulder. And he was himself again. He said something like, “I’m fine now, let’s go.” I tried to force him to stay but he just walked out and waited by the car. He didn’t argue – just left. I drove him home and he went to bed.
M KELLY: What happened the next day?
DEFENDANT: I don’t really know. I woke up and he was gone. He came back that night with his thumb properly bandaged. He must have been to a doctor, but he didn’t say anything to me about it.
M KELLY: Didn’t you try to talk about it?
DEFENDANT: I was... It was just so horrible that I pretended it never happened.
71: Marisa was only able to pretend for another six days. Her evidence of 13 May 2023 was as follows:
DEFENDANT: I woke up in the middle of the night – about 3am I think. David wasn’t in bed. We’d gone to bed together at about 11, but now he was gone. I thought he must have just gone to get a drink or something, so I laid there for about ten minutes, awake, waiting for him to come back. But he didn’t.
M KELLY: What happened then?
DEFENDANT: I was worried, so I got out of bed and went looking for him. The house was pitch-black – none of the lights were on. But when I went down the corridor I could hear a beeping coming from the kitchen. I went in there. The only light was from the fridge. David was standing there, naked, staring into the fridge.
M KELLY: What was he looking at?
DEFENDANT: Nothing. He wasn’t... I went right up to him – virtually put my face in front of his, and he just kept staring, like he was a million miles away. It was the fridge beeping because it had been open too long. And then... then...
SAUL CJ: Ms Baker, do you need a break?
DEFENDANT: No, no, I’m... I’m okay. 
M KELLY: What happened then, Marisa?
DEFENDANT: I was saying, “David, David, what’s wrong?” And suddenly he snapped. He slammed the door shut and stared at me with this look of...  rage. And he screamed, “Don’t call me that!” Then he started smashing his fist against the cupboards, smashing plates, throwing glasses at the wall. He was screaming it over and over again, “Don’t call me that!”
M KELLY: What happened then?
DEFENDANT: He... he punched me in the face. I fell back against the wall. I thought he was going to hit me again, or do something worse, but he just glared at me and said, “I hope you die,” and then left.
M KELLY: When you say he ‘left’...
DEFENDANT: He just stormed out the front door. He was still naked. He didn’t take keys or money or cards or anything. Just stormed outside.
M KELLY: When did you next see or hear from him?
DEFENDANT: Three days later. I woke up and he was there, right next to me. I don’t even know how he got in – we don’t leave a spare key out.
M KELLY: Did you ask him what happened?
DEFENDANT: : Of course. He thought I was crazy. He had a memory of everything that had happened over the last three days – stuff that didn’t happen. Things he did with me! He thought I’d gone crazy. So did I, for a while. 
David’s deterioration
72: Marisa gave detailed evidence as to the deterioration of David’s mental state, which I will not repeat in detail here. For the next few months, the incidents appeared, at least on the surface, to be isolated – pockets of severe disturbance within an ocean of relative calm. Some such incidents involved accusations of adultery, some involved violence and others involved behaviour that can only be described as bizarre and depraved. These incidents would last between a couple of hours to several days and on each occasion he would come out of them with clear and detailed false memories of what occurred in the interim.
73: It was not of course only Marisa who noticed the disturbances. Whether by luck or by some subconscious design, it was only in the later stages of his decline that these incidents manifested themselves at university. Prior to that, the only indication his friends and lecturers had of something going on was his sudden and unexplained absence. This was greeted with surprise but not concern.
David’s relationship with the Plaintiff
74: In May 2023, David commenced an extra-marital relationship with the Defendant, Jennifer Anne Forbes.
75: Jennifer gave evidence of their first meeting as follows:
PLAINTIFF: I was at the shops.
L I WHITE: Which shops were they?
PLAINTIFF: The Rockingham shops.
L I WHITE: And what were you doing?
PLAINTIFF: Shopping with my mum.
L I WHITE: And what was your first experience with the deceased?
PLAINTIFF: Well, I was just there picking some cereal off the shelf, when all of a sudden this guy is there. And he was, like, wearing a suit. Well, not a suit. Like, nice clothes. A jacket and stuff. And I can’t remember the last time I saw a guy wearing nice clothes like that in the Rockingham shops – especially on a Sunday morning. And he was staring at me, so I, like, said to him, “What the hell are you looking at mate?” And he said, “I was thinking you might want to come for a ride.”
L I WHITE: What did you say?
PLAINTIFF: I said ‘Alright’. He was a pretty good looking guy, and I didn’t have anything else to do, so I left my mum to do the rest of the shopping and went out with him.
L I WHITE: Where did you go?
PLAINTIFF: He had this really nice car – this BMW – and he took me to the casino. And I don’t really like to go to the casino because I can get in trouble there sometimes, but he was giving me all this money to bet with and buy drinks with and stuff, so it was okay. So we did that for a few hours, then he’d already booked a room in the hotel there, so we went up to the hotel room and ordered a bottle of champagne.
L I WHITE: What happened then?
PLAINTIFF: Ha, well, I reckon you know!
SAUL CJ: Ms Forbes, I suppose it’s fairly obvious, but you will need to tell the Court for the record.
PLAINTIFF: Well, we did it.
L I WHITE: You had sex?
PLAINTIFF: Yeah.
76: Jennifer gave evidence, which is again not disputed, that she saw David approximately once a week for the next six months. They would generally meet on a Sunday, and he would always pick her up. They never exchanged phone numbers. He never entered her house (which she shared with the aforementioned mother) and she never entered his. Jennifer described the relationship thus:
PLAINTIFF: It was good. It was kind of like a distraction, and I reckon that’s what he wanted too. Like, he would never, ever talk about his life. Ever. I tried to ask a few times at the start and he got really mad. He always wanted to talk about my life – as if me answering phones was more exciting than him studying his course or whatever – which I didn’t even find out he did until after he was dead. He always wanted to do stuff – like, he would never just want to sit around and talk. He’d always want to be going somewhere or doing something. Gambling, drinking, having... you know, doing it. It was like if he stopped for even a second he’d have to think about something he didn’t want to think about. But I never knew what that was.
77: Throughout this period, Marisa was suspicious but had no specific evidence of wrongdoing. David told her he was going to the library to study. Perhaps if that were the only change in his behaviour, Marisa might have questioned him further. As it was, his disappearance on Sundays was the least of her concerns – indeed, she testified as such:
M KELLY: You have already said that you suspected he was having an affair. Why didn’t you question him more directly about where he was going on Sundays?
DEFENDANT: At that stage, whether he was having an affair or not didn’t really bother me. It would have been like catching a cold while battling terminal cancer. At least I would have known what to do if I caught him cheating. I’d have yelled at him, thrown him out, got a divorce, whatever. But this other stuff – this... this madness... I just had no idea. I was completely alone and completely confused.
The Will
78: And so we come to 17 June 2023, when David approached Ms Natalie Kumar of Kumar Pollard Solicitors to witness him signing a will (“the Will”). A junior solicitor at the firm, Mr Michael Watson, was called in by Ms Kumar to act as the second witness.
79: It may surprise the reader to discover that David’s testamentary capacity at the time of signing the Will is not in issue. Although I have no doubt that the Defendant’s solicitors thought long and hard about this issue, they have chosen – I believe correctly – not to contest it. This is thanks largely to the thorough and careful job done by Ms Kumar and Mr Watson in ensuring that he understood the terms, significance and effect of the document he was signing. They satisfied themselves, and recorded the process in a holograph which this Court has seen.
80: As Mr Watson so eloquently put it in his testimony:
M WATSON: The guy was a freak. I mean, seriously, I knew he was a freak the moment I walked through the door. Nat said he was a bit weird and we had to be careful, but... I mean, it didn’t matter what the will said – he was just... I dunno, creepy. I mean, I guess we know why in hindsight but at the time, I just thought... well, he was a freak.
M KELLY: So can we take it that this was why you were so careful to ensure he had testamentary capacity?
M WATSON: Hell yeah. Oh, sorry Your Honour.
81: David did indeed go through each term of the will with a thoroughness that really left the Defendant with no option but to admit capacity. His demeanour throughout the recording was intense but patient. He made direct eye-contact with Mr Watson and Ms Kumar – indeed, it was obvious from the holograph that this was causing them both a degree of discomfort – and spoke clearly and deliberately.
82: The will was a simple one, drafted (it is presumed) by David himself. It was not even a page long. It contained a standard clause appointing Jennifer Forbes as executor (without allowing for the possibility that she would pre-decease him), and a rather less-than-standard clause as follows:
“3. Marisa wants me to be someone that I am not. Jennifer takes me for who I am. Marisa gets nothing. Jennifer gets everything.”
83: The will was signed and witnessed in accordance with the formalities required by the Wills Act 1970 (WA). It is therefore, subject to the arguments raised by the Defendant (which will be addressed below), a valid and binding statement of testamentary intent and should therefore be enforced in accordance with its brutally clear meaning – the Defendant gets nothing, the Plaintiff gets everything.
84: For the sake of clarity, I will complete the story before addressing the Defendant’s argument as to why the will should be overturned.
David’s death
85: In the following months, David’s condition passed beyond the point where it could be overlooked, whether by his friends or the medical fraternity. The breakdowns became more frequent and longer-lasting. No longer was it Marisa who bore the sole brunt of his madness. His lecturer in contract law, Mr Peter Martyn, gave evidence as follows:
P MARTYN: It was the 5th of September. I remember...
M KELLY: 2023?
P MARTYN: Yes, 2023. I was giving a lecture – on misrepresentation, I think. David had not turned up, which by that stage was pretty much a relief. But suddenly he was there, walking in and sitting down at the nearest desk.
M KELLY: What did you notice about him?
P MARTYN: Well, I think the first thing I noticed was the fact that he was bleeding all over the desk and floor. He’d made deep cuts all the way down both his arms.
M KELLY: What happened then?
P MARTYN: He looked at me, and at that moment I am certain – absolutely certain – that he genuinely thought nothing was wrong. He was just there for a contracts lecture. Ready to learn. His genuineness even made me hesitate – like I wanted to give the lecture all the same. But then he reached down – casually, like he was picking at a scab – and started gouging deep gashes down his arms with his fingernails. Then the students flew into action and tackled him to the ground to stop him doing it again.
M KELLY: And what he did do?
P MARTYN: : He fought like Hell. He kicked and screamed and... He just went crazy.
86: On that occasion, the police did not become involved. From the moment David was dragged from his room, the fury seemed to drain from him. He became limp, whimpering, yet by the time he had been taken to the medical centre, he was his old self again, confused (but not overly concerned) about his injuries. He walked away without further comment and arrived home later that night. His wounds were bandaged, though no-one has found any record that he attended a doctor.
87: It was around this time – September 2023 – that the physical changes became apparent, although the medical evidence has indicated that they would have been going on internally for quite some time. It began with what appeared at first glance to be a bruise on his back and a rash on the side of his neck. Marisa dismissed them both as symptoms of his now regular ‘attacks’. A week later however, the ‘bruise’ had grown to the size of a golf ball and the rash was turning brown.
88: Marisa took David to the hospital during one of his now-rare ‘normal’ spells. A number of tests were done, and then more tests, and then specialists were brought in from around the country and yet more tests were done. Finally, weeks later (glossing over entirely a number of further incidents caused by David’s disturbed mental state), the somewhat hesitant conclusion was that David was suffering from a never-before-seen condition – similar to cancer but utterly non-receptive to the treatments which had all-but-cured that disease by the late 10’s.
89: David’s body was undergoing a series of uncontrolled and seemingly random mutations, which his body was interpreting as ‘alien’ and then trying to destroy. Just as transplants used to be subject to rejection (before the development and perfection of organ-regeneration techniques), his body was rejecting anything it did not recognise – which was an increasingly high proportion of his own body.
90: Finally, Marisa had an explanation for her husband’s recent behaviour. Scans of his brain indicated mutations so severe that it was surprising he was able to function sensibly at all.
91: He was taken, against his will, to a mental health facility – being the only type of facility (other than a prison) with the security necessary to deal with his explosive rage and destructive behaviour. A team of medical specialists from around the world began working on his case, without success. The mutations became more severe, such that by mid-October 2023, he could no longer walk, could not speak and was only able to breathe with the assistance of medical support. 
92: Physically, it was difficult to reconcile this figure with a human being. Tumours bulged from his skin and forced other parts of his body out of position. One of his arms had been forced backwards at the shoulder, whilst one knee now bent the wrong way at almost ninety degrees. I had the unpleasant responsibility of examining photographs of David in his last few months, and I must say it is remarkable he lived as long as he did. This was of course the result of highly advanced technology rather than any strength on his part. If he had possessed the ability to communicate, no doubt he would have asked for the machines to be turned off many months earlier.
93: Finally, on 23 December 2023, David died. A sigh of relief was breathed by many.
Cause of death
94: It may appear surprising to the reader that the medical community remained baffled as to the cause of David’s condition until a number of months after his death. It was named Baxter-Gelling Disease after the two doctors who led the team, but this ‘disease’ was nothing more than a description of David’s symptoms without the slightest suggestion as to cause or treatment. 
95: The reason the doctors remained so baffled is that it was not until after his death that they discovered the history and significance of his birth. The doctors had of course identified irregularities in David’s DNA, but had put it down to mutations caused by his condition. Perhaps highlighting the need for a holistic approach to medicine, no-one had bothered at that time to investigate his past. As soon as the identity of his father was appreciated and his DNA re-tested in light of this discovery, the diagnosis of Baxter-Gelling Disease was replaced by a diagnosis of “chimera rejection disorder”.
96: Chimera rejection disorder is a well-known problem which arises when creating a clone which contains DNA from two or more species. Humans have been regularly melding species together using cloning technology since about 2015 – indeed, those younger readers may be surprised to hear that the vaxel, the kelli-grouse and the jub – now common domestic pets – did not exist in my youth, as well as a myriad of lesser-known chimeras used for agricultural and scientific purposes.
97: Many attempts to mix species resulted in just these sort of problems – massive mutation, rejection and death. Sometimes it happened in the womb, some times immediately upon birth and other times, like David, after a significant period of apparently healthy life. Whilst well-known, little attempt was made to ‘cure’ the problem, because there was a much simpler and cheaper alternative – try a different combination. If a particular chimera displayed symptoms of chimera rejection disorder, it would be humanely put to death and a new combination would be attempted. There was an infinite variety of combinations to be tried (keeping in mind that any one of thousands of parts of a DNA strand can be mixed with any other part of a DNA strand) that there was no commercial benefit to finding a cure for the condition.
98: No mention is made in Mr Baker’s journal of the possibility of his son suffering from this condition, although it cannot be suggested it had not occurred to him. Anyone in that field would have been aware of it, and Mr Baker was at the top of the field. Whilst it is not relevant for the purposes of this action, we can only presume that his failure to mention it resulted from a combination of confidence in his own science, deliberate optimism and wilful blindness.
The Defendant’s case
99: This in an action by the Plaintiff, Jennifer Forbes, to prove the Will in solemn form, the effect of which would be to appoint her as executor and sole beneficiary. The Defendant, Marisa Baker, objects to the will being proved.
100: There is no dispute as to testamentary capacity nor to the validity of the Will itself. The Defendant relies upon a rather less traditional basis for invalidating the Will. It is an argument which is as simple as it is remarkable. The Wills Act 1970 (WA) inter alia gives Western Australians the power to create a will – that is, to turn an ordinary document, which otherwise would have no testamentary effect, into a valid and effective will with all the legal results that flow from that. Paragraph 6 states as follows:
6. Provision that may be made by will
A person may, by a will executed or made in a manner required or permitted by this Act — 
(a) dispose of property (whether acquired before or after the making of the will) to which at the time of the person’s death the person is entitled either at law or in equity;
(b) dispose of property that in exercise of a power of appointment the person is entitled or able to dispose of by will; and
(c) appoint a guardian of any infant child of the person.
101: Marisa’s case, put simply, is that David Baker was not, at the time he signed the Will, a “person” for the purposes of the Wills Act. Accordingly, David did not have the power under such Act to create the Will or any testamentary document. It follows that David does not have a valid will and has therefore died intestate. 
102: Section 14(1) of the Administration Act 1903 (WA) determines the distribution that shall occur in the case of intestacy – in this case, “the surviving husband or wife shall be entitled, absolutely, to all household chattels included in the intestate property” (my emphasis). To juxtapose David’s words, “Marisa gets everything. Jennifer gets nothing.”
Initial complications
103: It is probably not surprising, in light of the extraordinary nature of Marisa’s case, that I began the hearing with a degree of scepticism. One issue that particularly concerned me was the greater legal effect should I find in Marisa’s favour. If David was not a “person” capable of signing a will, how could he be a “person” capable of owning the very property Marisa is trying to take ownership of? 
104: Furthermore, how could David have married Marisa in the first place, thus giving her the right to his estate via intestacy? The definition of “marriage” in the Marriage Act 1961 (Cth) is “the union of two persons to the exclusion of all others, voluntarily entered into for life”[7] (my emphasis).
105: Would his entire life need to be unravelled, reversing any transaction which occurred during his lifetime which only a “person” is entitled to do? Given that David’s father had no relation who may be entitled to his estate on intestacy, if his gift to David failed by reason that his son was not a “person”, “the whole of the intestate property passes to the Crown by way of escheat”[8].
106: In light of my concerns, Marisa’s solicitors undertook to invite the following entities to be joined and heard on this matter if they wished to do so:
(a) The Crown (the potential beneficiary of Mr Baker’s estate); and
(b) Landgate (in the event that it wished to dispute David’s ability to own property).
107: Neither of those entities took up the offer, and that is probably not surprising. The Crown (via the State Solicitors Office) made it clear that it did not wish to become involved in personal disputes and the sum at issue, whilst significant to most, is of little significance to the Crown.
108: Landgate issued this statement:
“It is Landgate’s view that David Baker was entitled to own property during his lifetime. Should that position be challenged, Landgate will vigorously defend its position. Landgate’s understanding however is that this view is not being challenged by any party to this action. Mr Baker’s right to own property arises from different legislation from that which gives him the right to produce a will. It is Landgate’s view that a finding in favour of the Defendant in this case will be relevant to the Wills Act alone.”
109: After some consideration, I accept Landgate’s view. The definition of “person” is not necessarily consistent between legislation. To take but one example, “person” is defined in the Interpretation Act 1984 (WA) as “...includes a public body, company, or association or body of persons, corporate or unincorporated”. Yet section 53P(5)(c) of the Human Reproductive Technology Act 1991 (WA) (in an attempt to find a relevant example) defines a “prohibited embryo” as “a human embryo that contains genetic material provided by more than 2 persons”. Self-evidently, the use of the word “person” in this case is specifically directed to a human person – ie. one with genetic material – and cannot include public bodies, companies or the like.
110: I am now satisfied that I can hear and determine this matter. This is an action between Marisa Baker and Jennifer Forbes, and it relates to this particular will and the legislation that governs it. If others wish to use my findings with respect to other legislation, the appropriateness of that course of action will be considered in light of the legislation in issue and the circumstances of that case. It is not for me to pre-empt such matters.
A ‘person’
111: The issue I must decide upon, therefore, is whether David Baker was a “person” for the purposes of the Wills Act at the time he signed the Will, being 17 June 2023. It is Marisa’s case that David was either never a person, or ceased to be a person on or about 7 May 2023, being the date on which the first evidence of mental instability was recorded.
112: “Person” is a term which has rarely been controversial – and certainly never with respect to a walking, talking entity such as David Baker. As stated above, the Interpretation Act tells us that “person” includes public bodies, companies and the like. That of course is of no assistance, presupposing as it does that “person” in the walking, talking sense requires no definition.
113: The term is defined (relevantly) in the Compact Oxford English Dictionary as follows:
noun (pl. people or persons) 1. a human being regarded as an individual. 2. an individual’s body: concealed on his person. 
114: If this were to be accepted as the appropriate definition, I am left with the duty to define the term “human being” and “individual”. It is not disputed that David was a peculiarly individual character – whether he was a human being or not is the very debate.
115: Neither of the solicitors in this action, nor my own investigations, have been able to locate a definition of “human being” in any relevant legislation. It appears that, like “person”, it is considered so obvious as not to require definition. In simpler times, that was no doubt the case.
116: Marisa states her case as follows in the Statement of Claim:
18. The Deceased was not, at the time of signing the Will, a “person” for the purposes of the Wills Act 1970 (WA).
PARTICULARS
(a) The Deceased’s genetic material was partly human and partly rodent (mus spicilegus);
(b) The characteristics which define a “person” were not present or not significantly present in the Deceased as at 17 June 2023.
117: Rarely have such complex and fundamental matters been diluted to such a simple description. Not surprisingly, the written submissions made in support of the Statement of Claim were more expansive (and the oral submissions more expansive still). It will be helpful to approach the remainder of this judgment by reference to those written submissions.
My approach
118: Before I do that however, I note firstly that the Defendant conceded at an early stage (quite rightly in my view) that I was entitled to, and should, start with the rebuttable presumption that David was in fact a person for the purposes of the Wills Act. The onus is therefore on Marisa to prove otherwise on the balance of probabilities.
119: It cannot be sensibly argued that a child born to a human woman, who walks and talks and in every other respect appeared human for the vast majority of his life should not be presumed to be a human being and a person (if they are distinct). To suggest that every person who approaches this Court must first prove on the balance of probabilities that they are a “person” is obviously untenable and plainly wrong.
120: I therefore turn to the substantive question – whether the Defendant has convinced me that it is more likely than not that David was not a person on 17 June 2023. In this respect, Marisa’s counsel has put to me a number of possible tests which can, he says, be used to determine ‘personhood’. It is argued that to fail but one test would be definitive, and it is said that David fails all of them.
121: I will address each of these proposed tests – by reference to the Defendant’s written submissions - in turn.
“Submission 1 (Genetics) – Animals (including human beings) are distinguished by their genetic makeup. The Deceased had a combination of human and rodent genetic material. Accordingly, he is not a human being but rather a new species.”
122: A mule is the offspring of a donkey and a horse. Donkeys and horses are different species. When their genetic material is mixed, we do not consider the offspring either a donkey or a horse, but a completely new animal – a mule. Marisa argues that the same principles apply here.
123: David acted like a human. For most of his life, he looked like a human. He was considered by all around him to be a human. It is argued by Marisa that he was in fact a new and singular species which bore a striking resemblance to a human being by reason only of sharing significant genetic material with the human being. That does not, Marisa says, mean that he is a human being.
124: It is an argument with some merit, but not one that can settle the question.
125: Take for example a person whose heart has been transplanted with that of a pig. Whilst the advances in therapeutic cloning have rendered this process virtually obsolete, the point is that it has been done. Those individuals for whom it was done were, in a very real sense, mostly human but partly pig. Their heart – the organ on which they rely upon for life – is that of a non-human animal with non-human DNA.
126: Marisa argues that this is distinct from the situation here, where the DNA itself, from birth, is only partly-human. The heart is, in essence, no more than a pump designed to transmit blood throughout the body. DNA on the other hand is the blueprint and, it might be said, the essence of human existence. 
127: I accept that there is a distinction, but I have difficulty seeing that it is a substantive one. DNA is not some magic substance. It too is a physical component of a human being – the fact that it is perhaps more complex than the heart or any other part of the body does not in my view give it a greater significance. If a man remains a man when he has the heart of a pig, why should a man not remain a man when he has the blood of a rodent?
128: It may well be that, in scientific circles, David was not considered a human being. That does not mean he is not a human being for the purposes of the law. I do not believe it is that simple. 
129: This raises for the first time the question of whether being a ‘human being’ is the same thing as being a ‘person’. If I assume for the moment that Marisa is correct, and that David was not at any stage of his life a human being – could he still be a person?
130: Let us presume that a scientist breeds a dog with a small amount of human DNA. The dog is born and appears for all intents and purposes to be an ordinary dog. It is clearly not human, and it is clearly not a person either.
131: Assume then that this same dog is born, and demonstrates all the facilities and capabilities of a human being. It still looks like a dog, and still walks like a dog, but it can speak, think and feel in exactly the same way as an ordinary human. The dog is still not a human being, but can we really say it is not a person? Can we deny this animal, who is as intelligent and thoughtful as you and me, from the basic rights proscribed to human beings?
132: I consider it is arguable, at the least, that even if David was not a human being, he was still a person for the purposes of the Wills Act. The fact alone that his DNA is not exclusively human is not reason enough to find that he is not a person.
“Submission 2 (Physical) – The Deceased’s physical appearance towards the end of his life was so far from human as to suggest that he was not human to begin with.”
133: This argument was not pressed, and for good reason. I do not find merit in it, yet I will address it briefly for completeness.
134: It is true that the body which was eventually cremated bore little resemblance to a human being. The photographs were graphic and disturbing, to say the least.
135: The physical changes were, the Court was told by experienced medical witnesses, unlike anything they had seen before. They were tumours in the well-known sense, but their size, speed of growth and pervasiveness were, to use the carefully-chosen words of one particular witness, “inhuman”.
136: The most obvious response to this submission is to note that the fact that a human disease is extremely severe does not result in that person losing their humanity. If David had grown fur and a tail, the situation might be different. 
137: More fundamentally, I have difficulty in allocating any significance whatsoever to physical appearance in the question of whether an individual is a person or a human being. If you were to perform plastic surgery on a monkey to make it look human, no-one would then argue that it in fact was human. Similarly, if some unfortunate human was born so deformed as to resemble a monkey, they remain indisputably human no matter how severe the deformation.
138: I reject this submission.
“Submission 3 (Psychological/Emotional) – The Deceased has at all times throughout his life demonstrated psychological and emotional characteristics that are inconsistent with being a human being.”
139: Before I can even consider this question, I must first consider what I should be looking for in David’s behaviour. What psychological and emotional characteristics are considered consistent with humanity, or personhood, and which are not?
140: Several possibilities were put before me. The issues here become highly theoretical and delve deep into the territory of advanced philosophy. I will do no more than summarise the highly complex issues that were argued before me.
141: To many, to be human is to understand your own mortality. To the best of our knowledge, lesser animals do not think about their own death in the way that humans do. A lesser animal will of course flee a pursuer or take whatever steps necessary to survive. So will a human. A lesser animal will not however, as far we know, think about its own inevitable demise when such demise is not apparently imminent.
142: To others, the answer is a somewhat circular one – you are a person if you consider yourself to be a person. Therefore, in theory, a highly intelligent animal which, for whatever reason, genuinely believes itself to be a person (and therefore must by definition have the cognitive ability to have that belief) is in fact a person. This leads inevitably to the finding that, if a human being genuinely believes himself to be something other than a person, he should not be considered one.
143: I do not accept either theory as being a sufficient test in itself. It may be that humans are the only animals to understand their own mortality, but humans are alone in many things. To understand your mortality is the result of a higher intelligence, but I do not see it as being more fundamental than that. We know we are going to die because we have developed sufficient communication skills to understand that what has happened to others is going to happen to us. If a person were born in a forest with only animals for company, it may see those animals dying but never presume that they will die themselves. I have not seen any evidence to suggest that it is an innate characteristic of human beings.
144: The second theory has some obvious flaws when taken to its extremes. A person with severe retardation may have no notion of whether he is a person or not. If it would then be argued that this makes him something other than a person (a complete non-entity perhaps), I do not accept that as a basis for determining at law who is a person and who is not. That does not mean it is not a valid philosophical argument, but it is not one I intend to apply to the Wills Act.
145: It was then argued that intelligence alone defines personhood. It is not seriously doubted amongst the scientific community that humans are the most intelligent species on the planet. Can this be used as a definition of personhood?
146: In itself, I do not think so. Again, I refer to the hypothetical unfortunate with severe retardation. On every scale we have available to us, their ‘intelligence’ would be marked lower than, at the least, an intelligent monkey or dog. I have already said that this result would be unacceptable and, for the purposes of the law, plainly wrong.
147: Perhaps more fundamentally, I have difficulty with the notion that humanity can be defined by something that varies so markedly within the species itself. Is it suggested that a person with a high IQ is more human than a person with a low IQ? If that were the inevitable result of this logic, it must be wrong. At least for the purposes of the law, an individual is either a person or they are not.
148: A further test, and one which has particularly attraction to the legal community, is whether an individual has a moral stance on what is right and wrong. It must be stressed that this is differentiated from a dog who displays guilt after he has eaten a rogue biscuit – it is generally accepted that the dog feels ‘guilt’ only because it knows it may be punished. If it had not been trained to know that eating rogue biscuits was bad, it would have devoured the item with eagerness and pride.
149: This test is a popular one in the community generally. When people speak of serial killers, they are described as “monsters” who have committed “inhuman acts”. It is said they should be “put down like dogs” or even “disposed of like you might dispose of any trash”. The basic notion of understanding right and wrong is one that humans hold dearly, and are apt to dehumanise those who lack such understanding.
150: These examples however prove in themselves that the test cannot be decisive. The serial killer is, for the purposes of the law, undoubtedly human. Only the most extreme commentators would suggest that a serial killer should be put down like a dog without a trial to establish his guilt – indeed, I would suggest that taking such a position would demonstrate in that commentator the very confusion as to right versus wrong that he ascribes to the alleged killer.
151: It should also be noted that there was evidence led in this trial to the effect that humans do not have a true understanding of what is right and wrong at all, but merely a more complex set of rules than lesser animals. To put it simply – we do what is ‘right’ because we know it will give us approval from others or make us feel good about ourselves. We avoid doing what is ‘wrong’ for the opposite reasons – people will disapprove, we will feel guilt and, in extreme circumstances, will face punishment.
152: This debate between true altruism and punishment/reward is one that has vexed philosophers and scientists for years and will no doubt continue to do so. I certainly will not attempt to resolve the question here, particularly as I have already found that the mere fact that someone knows the difference between right and wrong cannot in itself be sufficient to define personhood or humanity.
153: A number of other tests were proposed, but the ones mentioned above are both the ones which were pressed the hardest and the ones which I consider the strongest. For those interested in the other evidence presented (and I have no doubt it would constitute a valuable research tool for any budding philosophists), the transcript is available in the usual way.
Summary
154: For the reasons described above, I am of the view that, for the purposes of the Wills Act, there is no one single test that can be applied definitively to an individual to determine whether they are are a person or whether they are not. Whilst a number of the tests can be sensibly and appropriately applied when looking at the human race as a whole, they fall down when applied to individuals. There are certain individuals who are indisputably (in my view) human and persons, but fail a number of the tests proposed. There are also lesser animals that, if certain tests were applied, would find themselves with all the rights of their human masters. Like so many things in the law, there is no simple answer. I must now, therefore, look for a complex one.
Factors to be considered
155: As mentioned, there is no caselaw which directly bears upon the question of whether a cloned chimera constitutes a “person” for the purposes of the Wills Act. The law is not however devoid of assistance.
156: The first case of relevance is McEwen v Simmons[9], which addressed the somewhat unsavoury question of whether pictorial representations of the younger characters from the long-running television show The Simpsons could fall within the definition of child pornography.
157: “Child pornography” was defined in the Crimes Act 1900 at section 91H as meaning “material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years...” (my emphasis) engaging in sexual activity or the like.
158: The argument that the characters were not real people or based on real people by virtue of the very fact that they were cartoon characters was quickly disposed of. The Plaintiff then argued that these particular characters were not “persons” as they lacked a number of fundamental human qualities – for example, they were coloured yellow, their facial features were exaggerated, they had four fingers instead of five, and so on.
159: Adams J found as follows[10]:
“Whether any particular drawing is a representation of a person must be a question of fact and degree. The representation of human genitalia might, in some cases (such as, I rather think, the present), be decisive. However, as the figure departs from the form of a recognisable human being it may become less like a person and, at some point, not depict or represent a person at all. Merely giving some human traits to say, a rabbit or a duck, may well still leave the image outside the requirement that a ‘person’ be represented, even though the ‘rabbit’ or the ‘duck’ has character traits that are distinctly human and not at all rabbit or duck like. On the other hand, many cartoon characters, though by no means all, are drawn to closely resemble human beings.”
160: It was ultimately found that The Simpsons characters were sufficiently human to fall within the definition of a ‘person’ and consequently the relevant images were indeed “child pornography” for the purposes of that particular definition.
161: Another useful case is that of Attorney-General for the Commonwealth v Kevin and Others[11] (“the Kevin case”).
162: The issue in that case was whether a marriage between Kevin, a post-operative transsexual person who, at the time of his birth, was registered as a female, and a woman was a valid marriage under the Marriage Act 1961 (Cth). The specific question which the Court had to decide was, at the time of his marriage, was he a “man”? If so, the marriage was valid under the law as it was at the time[12]. If not, the marriage was invalid.
163: Chisholm J held at first instance – and the Court of Appeal agreed – that the marriage was valid. His reasoning is summarised at [16] and includes the following:
“6. In the present case, the husband at birth had female chromosomes, gonads and genitals but was a man for the purpose of the law of marriage at the time of his marriage, having regard to all the circumstances and in particular the following:
(a) he had always perceived himself to be a male;
(b) he was perceived by those who knew him to have had male characteristics since he was a young child;
(c) prior to the marriage he went through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners;
(d) at the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues;
(e) he was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF program, and in relation to such events occurring after the marriage, there was evidence that his characteristics at the relevant times were no different from his characteristics at the time of the marriage;
(f) his marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.”
164: The point to be taken from McEwen v Simmons is that, at least in the eyes of the law, there is no absolute rules for what makes a person. It is a sliding scale – one in which every factor and circumstance must be taken into account and looked at as a whole. To isolate a particular element of an individual as being definitive of whether they are considered a person or not would be to wrongly simplify what it means to be a person. In the eyes of the law, humans are special. The effect of being a human is dramatic – burdened and benefited by tens of thousands of laws, interpreted and moulded by thousands of years of caselaw. It is not something to be taken lightly, nor is it something that should be bestowed upon someone or taken away on the basis of one factor alone where others are contrary to it.
165: The same view is taken in the Kevin case with respect to the similar (but substantially different) question of what it means to be a ‘man’. If it were a mere biological question – as it was argued by the Attorney-General in that case – that would make my decision very easy. David Baker does not have the same DNA as an ‘ordinary’ human being, just as Kevin did not have the same DNA as an ‘ordinary’ man.
166: But it is not that simple, and my decision is not that easy.
167: I note by way of aside that the Kevin case considers relevant the way Kevin saw himself, and the way that others saw him. Unfortunately, that is not of great assistance in this case. Had David and/or the world known of his unusual DNA, and had David and others acted exactly as they in fact did, this would be of critical importance. That is not the case.
168: To the contrary, the particulars of David’s DNA were not known until after his death, such that there is simply no evidence to draw on. A human born in the jungle may genuinely consider itself to be a tiger or a bear – but this does not make it so. Perhaps David would have been shunned. Perhaps he would have exiled himself. Perhaps he would have been put in a zoo or a laboratory for testing against his will. We do not know.
169: I am left therefore with the task of examining all of the circumstances of David Baker, and making my decision on the entire matrix of facts which made up his existence. None of those facts in itself were sufficient to make a finding, but together they must lead me to an answer.
Was David Baker a ‘person’ at the time he made the will?
170: Physically, David Baker was for all intents and purposes an ordinary person. His unusual DNA is a factor against him being considered human, but I do not think it is a strong one, and less strong still as it relates to him being a person. Would it have made a difference if his DNA consisted of 50% rodent DNA rather than the miniscule percentage he in fact had? Of course it would have. Would it have changed things if he walked on four legs and grew a tail? Of course.
171: But neither was the case. David walked, talked and looked like an ordinary person.
172: But did he think like one? If he did not – if indeed his mental and emotional characteristics were inhuman – I would find it difficult to conclude that he was indeed a person irrespective of how much he may have looked like one.
173: In this respect, David demonstrated an almost complete disregard for human emotion. He was not disgusted nor angered by it – he simply did not seem to care for it or even really understand it. To say he was distant is too weak a description – he appeared to be incapable of closeness. Neither his wife nor his lover were prepared to say that he loved them, or indeed that he was capable of love.
174: Can someone without the ability to love be a person at all? Certainly there are a number of poets and romantics who would not think so. Frank P Tebbetts says:
“A life without love in it is like a heap of ashes upon a deserted hearth, with the fire dead, the laughter stilled and the light extinguished.”
175: Kahlil Gibran[13] says:
“Life without love is like a tree without blossoms or fruit.”
176: Indeed, this incapacity to love appeared to be at its peak at the time he signed the Will. He was cheating on his wife, seemingly without a shred of guilt. Whether he was suffering fugues or the like, it was not denied that he knew full-well what he was doing. Not only did he apparently not care, but there was no indication whatsoever that he recognised the wrongness of his actions.
177: If the evidence had ended there, I would have had leaned towards the Defendant’s view. It is true of course that there are sociopaths and psychopaths who demonstrate similar tendencies to David Baker, but this is not only an extreme case but one in which the circumstances of his birth may well have played a part. His father had no family history of mental illness and certainly not of psychopathy or sociopathy. No person with non-human DNA has, to the best of the world’s knowledge, been born. It would seem too coincidental that the one individual who was born a chimera happens to have a personality disorder which, to this degree of severity, affects a tiny minority of individuals. I find it more likely than not that the two are related.
178: I do not, however, agree with the Defendant’s view. I am of the view that David was, at the time of signing his Will and, if it were relevant, for his entire life, a human being and a person.
179: The relevant portion of the will reads, “Marisa wants me to be someone that I am not. Jennifer takes me for who I am. Marisa gets nothing. Jennifer gets everything.” What does this mean? Who does Marisa want him to be?
180: The answer is obvious and was never in dispute. The psychiatrists called to give expert evidence were in agreement – and in truth, I wonder whether it was necessary to call experts for this purpose – that David despised his earlier ‘sibling’, whom his father compared him to, and despised those who sought to compare them. In truth, it was only his father who did so, but in David’s mind – particularly once the tumours began to affect it – he saw it in others, and eventually in everyone.
181: David did not know he was a clone of his younger ‘brother’ – or at least, there is no evidence to suggest that he knew. On the other hand, he was a highly intelligent child and a fiercely intelligent adult. He must have seen pictures of the young David and questioned why they did not just look like brothers but looked identical. Maybe his father told him but never mentioned it in his journal. This seems unlikely, but possible.
182: Or perhaps he knew without consciously knowing. Perhaps this was the true source of his frustration – he hated this brother; hated the constant comparisons to him (real or imagined), but had no idea why he felt such hatred. If he had known the truth, he could have explored the logic of those feelings and perhaps overcome them. Instead, he was left with powerful, crippling hate that he could neither understand nor control.
183: Love is considered amongst most of the community as a singularly human emotion. David did not appear capable of love.
184: But jealousy and hate – these too are emotions exclusive to human beings. A dog will kill another dog for all number of reasons – for food, for a mate, to protect its territory. But a dog will never kill a dog because it hates it.
185: Humans, on the other hand, appear to revel in hate. Humans have hated for as far back as our records go. Indeed, if one were to read every history book ever written, you could be forgiven for thinking that humans only hate, and that love is a concept reserved solely for poets and singers to dream up from the depths of their imagination.
186: All the circumstances I have described herein, taken together and in context, leave the question delicately poised. David’s capacity for hate pushes him over the line.  I find that he was a human being and a person for the purposes of the Wills Act. Accordingly, I dismiss the Defendant’s application and order that the Will be executed in accordance with its terms.
187: I will now hear submissions on costs.
* * * * *
[1] Exhibit 1 - James Baker’s journal at page 97
[2] James Baker’s journal at page 126
[3] Exhibit 1 - James Baker’s journal at page 194
[4] Exhibit 1 - James Baker’s journal at page 273
[5] Exhibit 1 - James Baker’s journal at page 371
[6] Exhibit 1 - James Baker’s journal at page 400
[7] As per the amendments set out in the Homosexuality and Transgender Equality Amendment Act 2016 (Cth)
[8] Section 14 of the Administration Act 1903 (Cth)
[9] [2008] NSWSC 1292
[10] At page 17
[11] [2003] FamCA 94
[12] The Marriage Act 1961 (Cth) was of course amended in 2018 to allow marriage between any two “persons” - thankfully, as mentioned in the course of this judgment, I do not need to decide whether David Baker was in fact a “person” for the purposes of that legislation.
[13] Lebanese American artist, poet and writer (1883 - 1931)