Edwards v State Trustees Ltd
[2016] VSCA 28
•10 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0113
| JEMMA ELIZABETH EDWARDS | Appellant |
| v | |
| STATE TRUSTEES LIMITED (ACN 064 593 148) | First Respondent |
| MEGAN EDWARDS | Second Respondent |
| JEANNIE ELIZABETH DAY | Third Respondent |
| PETER MacCALLUM CANCER INSTITUTE | Fourth Respondent |
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| JUDGES: | WHELAN, SANTAMARIA and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 March 2015, 18 December 2015 (mention), 3 February 2016 (further written submissions), 7 March 2016 (further mention) |
| DATE OF JUDGMENT: | 10 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 28 |
| JUDGMENT APPEALED FROM: | [2014] VSC 392 (McMillan J) |
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WILLS AND ESTATES – Forfeiture rule – Appellant convicted of defensive homicide of husband – Appellant principal beneficiary under husband’s will – Whether rule flexible in nature – Whether rule equitable in nature – Authorities on operation of rule to manslaughter reviewed – Nature and scope of rule discussed – Helton v Allen (1940) 63 CLR 691 and Troja v Troja (1994) 33 NSWLR 268 considered – Cases of manslaughter to be considered on case-by-case basis – In circumstances of this case, appellant not entitled to benefit from the death she caused – Rule applies to prevent appellant from inheriting – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Panna QC with Mr J D Mattin | Wood Fussell |
| For the First Respondent | Mr R R Boaden | State Trustees Limited |
| For the Second Respondent | On 5 March 2015: | No appearance |
| On 18 December 2015 and 7 March 2016: Mr J L Smith | Gadens Lawyers | |
| For the Third Respondent | No appearance | |
| For the Fourth Respondent | On 5 March 2015: | No appearance |
| On 18 December 2015 and 7 March 2016: Mr B Barr | Allens |
WHELAN JA:
I have read in draft the judgment of Santamaria JA.
The general principle articulated in Cleaver v Mutual Reserve Fund Life Association[1] and in In the Estate of Crippen,[2] is that no person can obtain, or enforce, any rights resulting to them by their own crime. In the context of wills, and inheritance, this is often called ‘the forfeiture rule’.
[1][1892] 1 QB 147 (’Cleaver’).
[2][1911] P 108 (‘Crippen’).
The articulation and application of the forfeiture rule in cases of murder is clear and uncontroversial.[3] The articulation and application of the rule to unlawful killings which are not murder is more difficult. As Santamaria JA has pointed out, there is no rule which applies so as to preclude the taking of a benefit in all cases of manslaughter. Santamaria JA concludes that, however the rule is formulated, it precludes the taking of a benefit where the death is brought about by deliberate, intentional and unlawful violence or threats of violence. He considers that it would not apply where the circumstances were such as to preclude rational judgment. He accepts that the rule could extend to cases of manslaughter other than cases where there was deliberate, intentional and unlawful violence, but does not consider this to be an appropriate occasion for a reconsideration of the so called ‘motor manslaughter’ cases.
[3]See Gonzales v Claridades [2003] NSWCA 227 [46] (Mason P, with whom Beazley JA and Foster AJA agreed).
The proposition that the forfeiture rule applied in cases of manslaughter began with the decision in In the Estate of Hall.[4] The particular manslaughter in that case was, in terms of moral culpability, as close to murder as a manslaughter could be. Since then courts have grappled with the inherent difficulties of any single general rule purporting to apply to manslaughter. The problem arose, first, in relation to the ‘motor manslaughters’,[5] where manslaughter was committed as a result of criminal negligence, and in relation to suicide.[6] Difficulties also arose in circumstances of diminished responsibility,[7] either because of mental impairment or for other reasons.[8] Most recently, difficulty has arisen in relation to suicide pacts and assisted suicide[9] and unlawful killings in the context of family violence.[10] This case is an example of the latter category. Here the crime was defensive homicide.
[4][1914] P 1 (‘Hall’).
[5]Tinline v White Cross Insurance Association Limited [1921] 3 KB 327; James v British General Insurance Company Limited [1927] 2 KB 311; Hardy v Motor Insurers’ Bureau [1964] 2 QB 745 though the latter case is an instance of grievous bodily harm rather than unlawful killing.
[6]Beresford v Royal Insurance Company Limited [1938] AC 586.
[7]In re Giles [1972] 1 Ch 544; Public Trustee v Fraser (1987) 9 NSWLR 433; In re H [1990] 1 FLR 441; Re Stone [1989] 1 Qd R 351.
[8]Though these difficulties dissipate if there is an acquittal on the basis of insanity: Re Plaister (1934) 34 SR (NSW) 547; Public Trustee v Fraser (1987) 9 NSWLR 433, 441; Troja v Troja (1994) 33 NSWLR 268, 283 (Kirby P); In the matter of the Estate of Soukup (1997) 97 A Crim R 103, 108; Re Vyner (dec’d) (Unreported, Supreme Court of Queensland, Shepherdson J, 24 August 1999); In the Estate of the Late Fiona Ellen Fitter [2005] NSWSC 1188.
[9]Dunbar v Plant [1998] Ch 412; The Public Trustee of Queensland v The Public Trustee of Queensland [2014] QSC 47.
[10]In re Giles [1972] 1 Ch 544; In re K [1985] 1 Ch 85; Public Trustee v Evans (1985) 2 NSWLR 188; Re Keitley [1992] 1 VR 583; Troja v Troja (1994) 33 NSWLR 268.
The offence of defensive homicide is, for these purposes, relevantly analogous to manslaughter, particularly manslaughter in circumstances of excessive self-defence.[11] The offence of causing death by culpable driving in s 318(1) of the Crimes Act 1958 is similarly an offence relevantly analogous to manslaughter by criminal negligence.[12]
[11]I reviewed the background to the statutory offence of defensive homicide and its relationship to manslaughter in circumstances of excessive self-defence in R v Pepper (2007) 16 VR 637, 638–41 [10]–[22].
[12]R v McGrath [1999] VSCA 197 [15]–[17].
The trial judge found that the decision of the majority in the New South Wales Court of Appeal in Troja v Troja[13] was authority for the proposition that:[14]
[T]he forfeiture rule is ‘absolute and inflexible’ in its application to ‘felonious’ killings, which I take here to refer to murder and manslaughter.
[13](1994) 33 NSWLR 268 (‘Troja’).
[14]Re Edwards [2014] VSC 392 [100] (‘Reasons’).
The trial judge said the majority in Troja did not confine their conclusion to cases concerning ‘deliberate and forethought’ acts.[15]
[15]Reasons [101].
The trial judge said the rule might not apply to acts which were not deliberate and intentional.[16] She doubted whether violence or threat of violence was necessary to attract the rule.[17] She said she was even more doubtful if the rule would apply to culpable driving or similar crimes and she suggested that that might be because an ‘inadvertent act’ will not offend the public policy principle.[18]
[16]Ibid.
[17]Ibid.
[18]Ibid.
She referred to a decision of Gillard J in In the matter of the Estate of Soukup[19] and she concluded:[20]
The rule laid down in the Australian authorities therefore appears to be that, at the least, a person who kills another person by a deliberate and unlawful act forfeits any benefit arising as a direct result of that act.
[19](1997) 97 A Crim R 103 (‘Soukup’).
[20]Reasons [101].
The trial judge’s doubts about the application of the rule to culpable driving and similar crimes reflect older English authorities which did not apply the rule in that context. These are the so-called ‘motor manslaughter’ cases.
If there is an absolute and inflexible rule, and if the existing UK authorities concerning ‘motor manslaughter’ are correct, it seems that the rule would not apply to unlawful killings by culpable drivers notwithstanding that such conduct has, for at least the last two decades or so, been seen as criminal conduct potentially as serious and as culpable as any manslaughter in other contexts,[21] attracting very substantial terms of imprisonment.[22] If the existence of a deliberate unlawful act is the relevant qualifier to this absolute and inflexible rule then manslaughters by criminal negligence, which cannot be seen as anything other than seriously culpable and which attract very substantial terms of imprisonment,[23] would also not be subject to the rule. Yet on the Troja approach, the offender in Public Trustee v Evans,[24] who was discharged on the basis the punishment would be nominal, and the offender in ReKeitley,[25] who was given a non-custodial disposition, in each case because of the domestic violence to which they had been subjected by the deceased, would be subject to the absolute and inflexible rule.
[21]R v O’Connor [1999] VSCA 55 [19].
[22]See, eg, Shields v The Queen [2011] VSCA 386 and the other cases set out in the Annexure to that judgment, and more recently Pasznyk v The Queen (2014) 43 VR 169.
[23]See, eg, R v Lai [2015] VSC 346 [41].
[24](1985) 2 NSWLR 188 (‘Evans’).
[25][1992] 1 VR 583 (‘Keitley’).
It is necessary to review the authorities to determine whether this is the position which applies to manslaughter and relevantly analogous crimes.
Review of relevant authorities on manslaughter
Santamaria JA has reviewed the relevant authorities, as did the trial judge. So far as possible, I will endeavour to avoid repetition.
As Kirby P explained in his dissenting judgment in Troja, the reason why the principle known as the forfeiture rule was not articulated earlier than it was is because of the effect of common law forfeiture following conviction for a felony which operated until abolished by statute.[26] In Helton v Allen[27] it was suggested that the earliest appearance of the rule in any form may be said to be The Amicable Society for a Perpetual Life Assurance Office v Bolland (commonly known as Fauntleroy’s case).[28] That case concerned a life insurance policy taken out by a person who had committed forgery and had been executed. The insurer successfully resisted a claim under the policy. The Lord Chancellor considered that the case could be resolved by a ‘very plain and simple consideration’,[29] that being whether the policy would have been enforceable if the very risk that transpired had been insured against, that is, death as a result of execution for a felony. He held that such a contract could not be sustained and that it would be void ‘upon the plainest principles of public policy’.[30]
[26]Troja (1994) 33 NSWLR 269, 277–8.
[27](1940) 63 CLR 691, 709 (‘Helton’).
[28](1830) 4 Bligh NS 194; 5 ER 70.
[29](1830) 4 Bligh NS 194, 211; 5 ER 70, 76.
[30]Ibid.
Cleaver and Crippen were murder cases. I will not add to the analysis Santamaria JA has already undertaken.
The first case in which the principle was held to apply to manslaughter was Hall. As was later observed in Gray v Barr[31] in a passage quoted by Santamaria JA, the only surprising aspect of Hall is that the offender there was convicted of manslaughter rather than murder. In that context the conclusion that Cleaver governed the position was unsurprising and clearly correct. That Court also endorsed the decision in Fauntleroy’s case.
[31][1971] 2 QB 554 (‘Gray’).
Thus far, the forfeiture rule seemed clear, both in relation to the principle upon which it was based and in its application. The issue became more difficult, however, with the ‘motor manslaughter’ cases. The first is Tinline v White Cross Insurance Association Limited.[32]
[32][1921] 3 KB 327 (‘Tinline’).
The plaintiff in Tinline was seeking to enforce an insurance policy indemnifying him for his legal liability to pay a third party compensation as a result of ‘accidental personal injury’ caused by his driving. While driving at an excessive speed, the plaintiff ran into three people who were crossing the road, injuring two and killing a third. He was prosecuted for manslaughter. Then, as now, manslaughter by criminal negligence required proof of negligence of a character much graver than that which constitutes negligence in the civil context.[33] The insured in that case had pleaded guilty to manslaughter after the prosecution had withdrawn an allegation that he had been drunk. The insurer sought to escape liability under the policy on the ground that it was ‘against public policy to indemnify a person against the civil consequences of his criminal act’.[34] Bailhache J, in the King’s Bench Division, said that the point was ‘a novel one’.[35] He rejected the insurer’s defence, observing that there could be no doubt that the defence would not succeed if the persons who had been knocked down had all been injured, rather than one being killed.[36] He suggested that it could not make any difference that one had been killed. He emphasised that ‘if this occurrence had been due to an intentional act on the part of the plaintiff, the policy would not protect him’.[37] By this, Bailhache J did not mean intentionally speeding, but rather, intentionally running into a person.
[33]Nydam v The Queen [1977] VR 430.
[34]Tinline [1921] 3 KB 327, 330.
[35]Ibid 332.
[36]Ibid 331.
[37]Ibid 332.
The next relevant case in this context is James v British General Insurance Company Limited.[38]
[38][1927] 2 KB 311 (‘James’).
James was another case which concerned motor vehicle insurance. The insured was driving whilst he was drunk after attending a wedding. He collided with a motorcycle. The motorcycle driver was injured and his passenger was killed. The insured was convicted of the manslaughter of the deceased passenger. The insured then sought to recover the damages, both for personal injuries and property damage, for which he was liable; the costs for which he was liable; the cost of repairs to his own vehicle; and the legal costs which he had incurred in defending the civil claim and the criminal proceeding. In the present context, it is important to note that the insured was a direct beneficiary of the claim made; the claim he made on his insurer was not confined to his liability to the third parties. The insured relied upon the decision in Tinline. The insurer argued that it should not have to indemnify the plaintiff against liability for wrongful acts deliberately and intentionally done by him. In that context, it was submitted that he had deliberately and intentionally become drunk and driven while drunk. Roche J, in the King’s Bench Division, rejected the insurer’s arguments. He said:[39]
I see no ground for asserting a principle of public policy which operates only against persons who drive when they are drunk … Moreover the principle affects many other cases besides those of motor insurance. It affects a very large number of workmen’s compensation insurances where workmen are injured by acts or defaults …
[39]Ibid 320.
Roche J referred to Cleaver and, in particular, he referred to the observations of Lord Esher MR concerning reliance on the public policy principle in order to escape contractual liability.[40] Roche J agreed with Lord Esher MR’s observations and held that the principle should not be carried a step further than public policy requires. He observed that whilst the ‘principles of public policy … are themselves unchanging’, ‘their applications may be infinitely various from time to time and from place to place’.[41] He went on to say that once ‘a settled rule’ had been adopted, then it would be the duty of judges to follow that rule, and he considered that such a rule had been adopted in Tinline.[42] He rejected any suggestion the insured’s conduct had been relevantly ‘wilful or advertent’.[43] Whilst it was ‘gross’ negligence, it was still negligence, not a wilful act.[44] There was no intention to injure life or limb.[45]
[40]Ibid 321.
[41]Ibid 322.
[42]Ibid.
[43]Ibid 323.
[44]Ibid.
[45]Ibid 324.
In Beresford v Royal Insurance Company Limited the forfeiture rule was relied upon so as to excuse a life insurance company from having to pay on a policy in circumstances where the death was caused by suicide, then a crime.[46]
[46][1938] AC 586 (‘Beresford’).
This was how things stood when Helton was decided by the High Court.
As Santamaria JA points out, there was no issue raised in Helton as to the scope or application of the forfeiture rule. In Helton, a person who had been found in civil proceedings to have unlawfully killed the testatrix had been held not to be entitled to benefit under her will. Relevantly, the issues the High Court had to decide were whether his earlier acquittal at a criminal trial precluded application of the forfeiture rule, and whether the directions which had been given to the civil jury as to the burden of proof were correct. It was as an introduction to the consideration of those issues that Dixon J (as he then was) and Evatt and McTiernan JJ outlined the rule as it then stood, referring to the decision in Hall, which was said to have ‘finally established’ that the principle applied to manslaughter,[47] but without referring to any of the insurance cases, other than Fauntleroy’s case (the executed forger), Beresford (suicide) and Prince of Wales &c Association Co v Palmer,[48] a case concerning insurance taken out by a poisoner on the lives of his victims. The other two judges, Rich and Starke JJ, did not see the need to explain the principle at all. A new trial was ordered on the ground that the judge had misdirected the civil jury as to the burden of proof.
[47]Helton (1940) 63 CLR 691, 709.
[48](1858) 25 Beav 605; 53 ER 768.
Dixon, Evatt and McTiernan JJ did not address the motor manslaughter cases. This is hardly surprising. What they said about the forfeiture rule was no more than general observations placing in context the issues which they had to address. What was said was not, in my view, intended to be a description of the scope of the forfeiture rule in the context of manslaughter. Amongst other things, if interpreted that way the judgment would have implicitly rejected the English motor manslaughter cases. No one seems to have ever suggested that that was the effect of Helton.[49]
[49]Care is needed when considering statements in High Court judgments addressing different issues to those under consideration or similar issues in a distinguishable context: see O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698, 731 [144], 733 [156].
The next case of relevance is Hardy v Motor Insurers’ Bureau.[50] In this case, the driving was of a different character to the grossly negligent driving in Tinline and James. Here an uninsured driver, who had been apprehended by a security guard when attempting to drive a van out of certain premises, deliberately drove off whilst the security guard was leaning into the vehicle and dragged him for some distance along the road. The driver was convicted of maliciously causing grievous bodily harm. Because the driver was uninsured, the security officer sought recovery from the Motor Insurers’ Bureau for the injuries sustained. The Motor Insurers’ Bureau was required, pursuant to an agreement with a government department, to meet any judgment against a driver required by legislation to be insured which was not satisfied. The Motor Insurers’ Bureau resisted payment on the ground that the driver had engaged in a deliberate criminal act. The Court of Appeal rejected the Motor Insurers’ Bureau’s position.
[50][1964] 2 QB 745 (‘Hardy’).
Lord Denning MR referred to Cleaver and to Beresford and held that the driver would have been precluded from recovering, but that the injured third party was not.[51] The injured third party, he held, was not affected by the ‘disability which attached to the motorist himself’.[52] Lord Denning MR held that Cleaver and Beresford did not apply where the benefit came into the hands of a person not affected by the disability, and that no person can claim reparation or an indemnity for the consequences of a criminal offence where the ‘essential ingredient’ is their ‘wicked and deliberate intent’.[53]
[51]Ibid 760–1.
[52]Ibid 761.
[53]Ibid.
Pearson LJ agreed with Lord Denning MR. He held that, in this case, the person had been injured by ‘an intentional criminal act’ but that the public policy which precluded recovery did not preclude ‘alternative or independent rights’.[54] In this respect, Pearson LJ adopted an expression taken from the judgment of Fry LJ in Cleaver.[55]
[54]Ibid 764–5.
[55][1892] 1 QB 147, 150.
Diplock LJ held that the forfeiture rule applied when it was sought to enforce rights relying upon acts ‘regarded by the court as sufficiently anti-social to justify the court’s refusing to enforce that right’.[56] Diplock LJ also emphasised that this bar operated only against the person who committed the anti-social act.[57] Diplock LJ addressed the issue raised by Tinline and by James and said: ‘The court has to weigh the gravity of the anti-social act and the extent to which it will be encouraged by enforcing the right sought to be asserted against the social harm which will be caused if the right is not enforced.’[58] Diplock LJ also said:[59]
I can see no reason in public policy for drawing a distinction between one kind of wrongful act, of which a third party is the innocent victim, and another kind of wrongful act; between wrongful acts which are crimes on the part of the perpetrator and wrongful acts which are not crimes, or between wrongful acts which are crimes of carelessness and wrongful acts which are intentional crimes.
[56]Hardy [1964] 2 QB 745, 767.
[57]Ibid.
[58]Ibid 768.
[59]Ibid 769–70.
It is significant, it seems to me, that only Diplock LJ addressed and sought to explain and incorporate Tinline and James into his analysis. This led him to the approach under which it was necessary to weigh the gravity of the ‘anti-social act’, an approach which was later to find expression in cases like Evans and Keitley. Lord Denning MR and Pearson LJ did not address the ‘motor manslaughter’ cases. Indeed, their analyses are inconsistent with James in that they would not have permitted recovery of the offender’s own insured losses.
Outside the context of unlawful killing, in Fire and All Risks Insurance Co Ltd v Powell[60] the Full Court of this Court adopted an approach to the principle that no person can enforce rights resulting to them by their own crime which focused on the circumstances of each particular case. In that case O’Bryan and Pape JJ adopted Diplock LJ’s analysis in Hardy to the effect that what was required was to determine in each case whether the relevant conduct was sufficiently ‘anti-social’ to justify a refusal to enforce the right.[61] Smith J also adopted a similar approach but he observed that in crimes of the gravest sort, such as murder and intentional killing constituting manslaughter, the rule may be inflexible.[62]
[60][1966] VR 513 (‘Fire and All Risks Insurance’).
[61]Ibid 522–3.
[62]Ibid 527–8.
The next case of importance is Gray.[63]
[63][1971] 2 QB 554.
Gray concerned what might be termed a ‘love triangle’. One of the two men in the ‘triangle’ confronted the other with a shotgun. He fired it once, intending to frighten the other, after the other had blocked his path. He then attempted to force his way past the other man. There was a struggle and the man holding the shotgun fell. In the course of falling, a second shot was involuntarily fired, which killed the other man. The person who fired the shots was acquitted of murder and of manslaughter. He was sued by the estate of the dead man for unlawfully and negligently causing the death. The man who had fired the shots had a ‘hearth and home’ insurance policy, which indemnified him against his legal liability to pay damages for bodily injury caused by an accident. The insurer denied liability on two bases: there had not been an ‘accident’; and that to indemnify would be against public policy.
Lord Denning MR found in favour of the insurer on the basis that what had happened was not ‘an accident’.[64] He then turned to the public policy defence. He analysed the ‘motor manslaughter’ cases asserting that in that context it was ‘settled beyond question’ that the insured could recover, citing Tinline and James, except where the driving was both ‘wilful and culpable’, citing Hardy.[65] Lord Denning MR adopted the trial judge’s formulation of the relevant issue, namely, whether the person seeking indemnity was ‘guilty of deliberate, intentional and unlawful violence, or threats of violence’.[66]
[64]Ibid 567.
[65]Ibid 568.
[66]Ibid 569.
Salmon LJ found in favour of the insurer on the basis that, whilst what had happened was ‘an accident’, it was not an accident of the kind covered by the policy.[67] Salmon LJ suggested that the public policy upon which the insurer relied was based upon the need for deterrence and the extent to which the act ‘would shock the public conscience’.[68] Salmon LJ said he was confident that public policy required that no one who ‘threatens unlawful violence with a loaded gun’ should be allowed to enforce a claim.[69] But he emphasised that he was deciding no wider proposition, and, in particular, that he was not deciding that the rule would necessarily apply to all crimes of manslaughter, which he said ‘varied infinitely in [their] seriousness’.[70] He observed that Hall may seem to be authority for the proposition that all manslaughters were subject to the rule, but that Hall was explicable on the facts of that particular case.[71]
[67]Ibid 580.
[68]Ibid 580–1.
[69]Ibid 581.
[70]Ibid.
[71]Ibid.
Phillimore LJ held that what had occurred was not ‘an accident’.[72] He agreed with observations made by Lord Denning MR and Salmon LJ to the effect that manslaughter varies from conduct which is almost murder to conduct which is only criminal ‘in the technical sense’.[73] He suggested that it would be ‘foolish’ to attempt any general rule and said his decision was confined to the facts in this case.[74]
[72]Ibid 585, 587.
[73]Ibid 587.
[74]Ibid.
In Regina v Chief National Insurance Commissioner, Ex parte Connor,[75] Lord Lane CJ, with whom Griffiths and Webster JJ agreed, adopted the observations of Salmon LJ in Gray to the effect that there was no general rule in relation to manslaughter, and he also adopted Lord Denning MR’s suggestion that the ‘logical test’ was whether the person seeking indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence.[76]
[75][1981] 1 QB 758.
[76]Ibid 765–6.
Position in Australia prior to Troja
Prior to Troja divergent approaches had been taken in first instance decisions in Australian courts concerning the application of the forfeiture rule to manslaughter. On the one hand, there were Evans, Public Trustee v Fraser[77] and Keitley where first instance judges had held that cases of manslaughter were to be assessed on a case-by-case basis. In other words, the application of the general principle to cases of manslaughter was not absolute and inflexible. On the other hand, two decisions of Powell J, in Kemperle v The Public Trustee[78] and in Bain v Morabito,[79] had rejected this approach. Santamaria JA has addressed these cases. I will not repeat what he has said. One additional decision of note is that of McPherson J in Re Stone.[80]
[77](1987) 9 NSWLR 433 (‘Fraser’).
[78](Unreported, Supreme Court of New South Wales, Powell J, 20 November 1985).
[79](Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992).
[80][1989] 1 Qd R 351.
In Re Stone, McPherson J considered the position of a joint tenant who had killed his co-tenant wife in circumstances of diminished responsibility. He was convicted of manslaughter and sentenced to 10 years’ imprisonment with a non-parole period of 4 years. McPherson J decided that the crime itself ‘did not affect the incidence of survivorship inherent in a joint tenancy’,[81] and then considered whether public policy (the forfeiture rule) required that the offender’s enlarged interest be held on constructive trust. He approached the issue on the basis that the outcome depended upon ‘the nature and circumstances of the killing’.[82] He referred to the English decision of In re Giles,[83] and to Evans and said:[84]
Even if one adopts the approach taken by Young J in Public Trustee v Evans, and accepts that there is a discretion to exclude the rule of public policy, the present case is in my view not an appropriate one for doing so. The circumstances of the killing do not appear in any detail from the material before me; but, attracting as they did a sentence of ten years imprisonment, they cannot be regarded as involving criminality in only ‘a very minor degree’.
[81]Ibid 352.
[82]Ibid 353.
[83][1972] 1 Ch 544.
[84][1989] 1 Qd R 351, 354.
Troja
The majority in Troja (perhaps Meagher JA more emphatically than Mahoney JA) rejected the approach in Evans, Fraser and Keitley.
Troja was decided at first instance by Waddell CJ in Eq in the New South Wales Supreme Court Equity Division.[85] Waddell CJ in Eq found it was not possible to formulate a general statement of the rule which applied to all manslaughters.[86] Kirby P in the Court of Appeal suggested that Waddell CJ in Eq had accepted that there was a discretion.[87] I think it is more accurate to say that Waddell CJ in Eq accepted that there could be an exception to the general rule based upon a moral judgment about the degree of criminality involved in the relevant conduct.[88] Waddell CJ in Eq concluded that however that exception might be expressed Mrs Troja did not come within it.[89]
[85]Troja v Troja (Unreported, Supreme Court of New South Wales Equity Division, Waddell CJ in Eq, 15 February 1993).
[86]Ibid 34–5.
[87]Troja (1994) 33 NSWLR 268, 276.
[88]Troja v Troja (Unreported, Supreme Court of New South Wales Equity Division, Waddell CJ in Eq, 15 February 1993) 35.
[89]Ibid.
In the New South Wales Court of Appeal Kirby P dissented. He considered that the fundamental rationale for the forfeiture rule had never been properly considered.[90] He said it was necessary for a choice to be made between whether the forfeiture rule was to be seen as a rule of law based upon public policy or an application of established legal rights modified by the operation of equitable doctrines.[91] He said Helton did not constitute a determination of the scope of the rule.[92] He approved of the decisions in Evans, Fraser and Keitley,[93] and held that the correct approach was to determine whether the taking of the benefit was unconscionable, and that the law operated in circumstances where it was unconscionable by the imposition of a constructive trust.[94] He was conscious of the fact that in adopting this approach he was undertaking a ‘reformulation’ of the forfeiture rule.[95]
[90]Troja (1994) 33 NSWLR 268, 278.
[91]Ibid 278–9.
[92]Ibid 279–80.
[93]Ibid 285.
[94]Ibid 284–6.
[95]Ibid 286.
Mahoney JA considered that the forfeiture rule had been affirmed and applied in circumstances relevant to the case before the Court of Appeal by the High Court in Helton and by the House of Lords in Beresford.[96]He emphasised that it was important to distinguish the issues of what the principle was and how it was to be applied.[97] He adopted the formulation of the majority in Helton, that the law would not enforce ‘rights directly resulting to a person asserting them from the crime of that person’.[98] Mahoney JA pointed out that the principle arises in different contexts and he referred to some of the earlier cases. The only manslaughter case to which he referred was Hall.[99] He then postulated the relevant issue as being whether the principle should ‘now be rejected’ and said:[100]
My inclination is that this case should be decided merely according to the law.
[96]Ibid 294.
[97]Ibid.
[98]Ibid 294–5.
[99]Ibid 295.
[100]Ibid 296.
Waddell CJ in Eq would no doubt have thought that that is what he had done.
Mahoney JA said principles concerning the effects of illegality did not exist in a ‘single strand’ and he referred to the differences which exist in the consequences of illegality in different circumstances.[101] He held that for present purposes the principle was not limited to intentional wrongs, that it clearly applied to murder, and that he could see no difference ‘where the killing is held to be manslaughter and not murder’.[102] Somewhat confusingly, he then added: ‘There may be borderline cases.’[103]
[101]Ibid 296–7.
[102]Ibid 297.
[103]Ibid 298.
It is unclear to what ‘border’ he was referring, or by reference to what standard the borderline cases were to be judged. He rejected the suggestion that the issue was to be determined in accordance with the principles of unconscionability.[104]
[104]Ibid.
Meagher JA held that the rule was that where a person who would ‘otherwise obtain a benefit by the death of another has brought about that other’s death by violent means, he shall not be entitled to take that benefit.’[105] He said that this rule was ‘absolute and inflexible’.[106] He said that Evans, Fraser and Keitley were not the law.[107] It is to be noted that ‘violent means’ was expressed to be a critical determinant of the rule’s scope.
[105]Ibid 299.
[106]Ibid.
[107]Ibid.
In my view, Kirby P’s ‘reformulation’ of the forfeiture rule as a principle of equity is not consistent with prior authority. The rule has always been said to be a rule of law based on public policy.
Mahoney JA addressed the issue without regard to any of the cases concerning manslaughter other than Hall, which in all but name was a murder case. He said there was a general rule which applied to manslaughter just as it did to murder, but then said there might be ‘borderline cases’, without explaining where or what the ‘border’ might be.
Meagher JA did not address the manslaughter cases. If his formulation of the rule is adopted, it is confined to ‘violent means’. Thus, it does not catch those guilty of most serious and reprehensible conduct, such as causing death by culpable driving or manslaughter by criminal negligence, but does catch those whom the criminal law might properly judge as barely warranting any punishment (such as the offenders in Evans and Keitley). The trial judge did not adopt this formulation of the rule. She formulated the rule as one determined by deliberate acts, and she expressly doubted whether violence or threat of violence was necessary.
Dunbar v Plant and Australian decisions since Troja
Whilst the position in England altered significantly with the passage of the Forfeiture Act 1982, as Santamaria JA has pointed out, it is still necessary for courts in England to determine whether the forfeiture rule would otherwise apply. In that context, it seems to me that the Court of Appeal in Dunbar v Plant[108] articulated the position well.
[108][1998] Ch 412 (‘Dunbar’).
Mummery LJ in Dunbar accurately analysed the position, in my view, when he said:[109]
In my judgment, however, the presence of acts or threats of violence is not necessary for the application of the forfeiture rule. It is sufficient that a serious crime has been committed deliberately and intentionally. The references to acts or threats of violence in the cases are explicable by the facts of those cases. But in none of those cases were the courts legislating a principle couched in specific statutory language. The essence of the principle of public policy is that (a) no person shall take a benefit resulting from a crime committed by him or her resulting in the death of the victim and (b) the nature of the crime determines the application of the principle.
[109]Ibid 425.
Mummery LJ pointed out that the authorities revealed that the rule did not apply in all cases of manslaughter.[110]
[110]Ibid 423–4.
In this context reliance on intention and deliberateness is potentially confusing. The offender in Gray did not fire ‘deliberately’ but his relevant conduct in taking the loaded weapon to the scene, using it to threaten the deceased and attempting to push past him was deliberate. Likewise, a drunken or drug-affected driver drives deliberately, and a drunken or drug-affected person handling a firearm also does so deliberately.
Provided unlawful killings as a result of culpable driving or as a result of other criminally culpable conduct are not excluded by the requirement that the crime be deliberately intentional, as in my view they would not be, then it seems to me that Mummery LJ has formulated the correct approach. Cases of murder are straightforward. In cases of manslaughter culpability can vary between those which are close to murder and those which might warrant little or no criminal punishment at all. That is why in cases of manslaughter the nature of the particular crime must determine the application of the principle.
Phillips LJ in Dunbar, with whom Hirst LJ agreed, said that ‘apart from the motor cases’, the forfeiture rule had invariably been applied in England in cases of manslaughter.[111] But he observed that in his view the judges would themselves have modified the rule if it had not been for the intervention of the legislature.[112] He said that ‘the only logical way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability’ that the rule should not be applied.[113]
[111]Ibid 435.
[112]Ibid.
[113]Ibid.
Gillard J in the Trial Division of this Court followed the majority in Troja in Soukup. He suggested that the law in this State did not recognise any exception to the application of the forfeiture rule in manslaughter cases.[114] Having said that, however, he observed that it was unnecessary for him to decide whether an inadvertent or involuntary act which resulted in a finding of manslaughter would preclude the operation of the rule, and he suggested (‘for what it is worth’) that the English approach, which he said would preclude the operation of the rule if the person seeking the right was not guilty of deliberate intentional and unlawful violence or threats of violence, was ‘appropriate’.[115]
[114]Soukup (1997) 97 A Crim R 103, 113.
[115]Ibid 115.
The reasoning of the majority in Troja has been adopted in a number of other Australian single judge decisions concerning manslaughter,[116] including manslaughter by gross criminal negligence involving a motor car,[117] and assisted suicide,[118] without adverting to the English motor manslaughter cases.
[116]Batey v Potts (2004) 61 NSWLR 274 (Gzell J); Pike v Pike [2015] QSC 134 (Atkinson J).
[117]Nay v Iskov [2012] NSWSC 598 (Brereton J).
[118]The Public Trustee of Queensland v The Public Trustee of Queensland [2014] QSC 47 (de Jersey CJ).
Miller v Miller
In Miller v Miller the High Court was considering whether a person engaged in a joint criminal enterprise involving reckless driving owed a duty of care to his or her co-offender.[119] It was argued that to find a duty of care in those circumstances was against public policy. Whilst the context is different, the approach of the majority of the High Court to the public policy issue is of assistance, in my view.
[119](2011) 242 CLR 446 (‘Miller’).
French CJ, Gummow, Hayne, Kiefel and Bell JJ said:[120]
One point that emerges with complete clarity from the cases and the commentary is that the relevant principles are not identified by stopping the inquiry at the point of observing that a plaintiff has contravened the criminal law in the course of the events that the plaintiff alleges render the defendant liable to the plaintiff in tort. Nor are the principles identified by asserting, without further explanation, that public policy ‘requires’ that such a plaintiff have no claim. Likewise the principles are not identified by simply intoning the Latin maxim ex turpi causa non oritur actio. As Windeyer J demonstrated, in Smith v Jenkins, it is greatly to be doubted that the maxim, properly understood, has any application in tort. Its intrusion into the debate ‘has caused a confusion which would not have occurred if the writers had condescended to translation and had not taken the maxim into territory where it does not belong’. In any event, reference to the maxim does not reveal the reasoning that leads to the conclusion that liability is denied. The maxim ‘notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition’.
None of these observations denies that questions of public policy are presented when a plaintiff sues another for damages sustained by the plaintiff in the course of, or as a result of, some illegal conduct of the plaintiff. They are. But it is important to identify not only what are the policy considerations that are engaged, and how they are said to be engaged in the particular case, but also, and more fundamentally, why policy considerations are engaged.
These reasons will show that the central policy consideration at stake is the coherence of the law. The importance of that consideration has been remarked on in decisions of this Court. Its importance in this particular context was emphasised by the Supreme Court of Canada. It is a consideration that is important at two levels. First, the principles applied in relation to the tort of negligence must be congruent with those applied in other areas of the civil law (most notably contract and trusts).
Secondly, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant’s negligence is whether there is some relevant intersection between the law that made the plaintiff’s conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff’s conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted.
[120]Ibid 454–5 [13]–[16] (citations omitted) (emphasis in original).
The observations of the High Court in Miller are of assistance in these respects. Asserting that public policy ‘requires’ an outcome, without further explanation, does not articulate a legal principle. It is important not only to identify what the policy considerations are but how they are said to be engaged in the particular case and why they are engaged. Coherence of the law is central.
Conclusion as to application of the forfeiture rule to manslaughter and like offences
The various formulations of the ‘absolute and inflexible’ rule are not uniform. The trial judge held that the rule applied where the relevant act was deliberate and intentional and she doubted the need for violence. Meagher JA in Troja expressed the rule as being applicable where the death is a result of violent means. Mahoney JA in Troja said there was no difference in the rule’s application between murder and manslaughter but then suggested the possible existence of ‘borderline cases’. Gillard J in Soukup said there are no exceptions but then suggested the English cases which provide for exceptions are probably right.
Santamaria JA recognises, it seems to me, that there is no formulation of the rule which can be said to apply generally to manslaughter and similar crimes.
As to coherence with the criminal law, the forfeiture rule ought not to operate so as to preclude offenders whose criminality is such that they properly receive little or no punishment while not precluding offenders who commit crimes warranting substantial terms of imprisonment. The forfeiture rule should also operate in a manner which is coherent with the approach taken in other civil contexts.[121]
[121]As to which I refer to, eg, Miller (2011) 242 CLR 446; Hardy [1964] 2 QB 745; Fire and All Risks Insurance [1966] VR 513.
The only formulation which, in my opinion, can properly address this position, giving proper expression to the underlying public policy principle and to the need for coherence with the criminal law is one under which the nature of the particular crime determines the application of the principle. It seems to me that this approach reflects what was said, admittedly in a different context, in Miller.
Cases of murder are straightforward and would always result in the offender being precluded. Cases of manslaughter have to be considered on a case-by-case basis. The issue is: does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death? The issue is not determined by reference to whether the conduct is advertent or inadvertent, whether it is by violent means or by other means, whether it is behind the wheel of a car or whilst in possession of a weapon. If it is necessary to find the majority judgments in Troja were plainly wrong to reach this conclusion then in my opinion they were.
Submissions as to criminal culpability
The deceased’s will had left his entire estate to the appellant. The will provided that if she did not survive the deceased, amounts would be paid to the appellant’s mother, Jeannie Elizabeth Day, and to the Peter MacCallum Cancer Institute. If the forfeiture rule prevented the appellant from taking under the will or on intestacy, the person entitled on intestacy was the deceased’s daughter, Megan Edwards. Accordingly, when State Trustees issued its Originating Motion to determine how the estate should be distributed it included as defendants to the proceeding Megan Edwards, Jeannie Day and the Peter MacCallum Cancer Institute, as well as the appellant.
The trial judge held that, as the appellant was precluded by an inflexible rule, the estate went on intestacy to the deceased’s daughter, Megan Edwards. On appeal, there was no challenge to that aspect of the trial judge’s decision.
When the appeal was initially heard, only the appellant and State Trustees appeared and advanced submissions. The other defendants were respondents to the appeal.
At the trial the parties had the opportunity to lead evidence as to the appellant’s culpability and they did so. At the trial, counsel for the appellant submitted that if the rule was to be applied flexibly the trial judge should look at the circumstances of the killing which he submitted included the history of violence against the appellant. He submitted that the killing was not an ‘end in itself’ and that it was necessary to consider whether there was ‘low culpability’ by reason of the history of violence perpetrated against the appellant. The trial judge’s conclusion that there was an inflexible rule meant she did not need to determine that issue.
Ground 10 of the appeal was that the trial judge ought to have concluded that the appellant was of ‘very low culpability’ and that ‘the forfeiture rule should not apply’. The appellant’s written outline of submissions addressed this ground, but little was said on it in oral submissions.
Notwithstanding the fact that the issue was a ground of appeal and had been addressed in the appellant’s written submissions, the Court called the parties back before it after the initial hearing to ensure that they had made all the submissions they wished to make on the disposition of the matter should the Court reach a conclusion that the forfeiture rule was not inflexible. The appellant sought the opportunity to make further written submissions on that issue and the Court gave all parties leave to file further written submissions. The appellant and Megan Edwards did so.[122]
[122]Megan Edwards was later given leave to file written submissions on the scope and application of the forfeiture rule. They are summarised in the judgment of Santamaria JA.
The further submissions of the appellant relied upon the findings of the judge who sentenced Mrs Edwards,[123] and upon an affidavit of the appellant which had been before the trial judge,[124] in support of a submission that, if the forfeiture rule was flexible, it should not apply by reason of:
[123]DPP v Edwards [2012] VSC 138 (’Sentence Reasons’).
[124]Affidavit sworn 3 April 2014 (‘appellant’s affidavit’).
(a) the extensive history of violence inflicted by the deceased upon the appellant during the marriage;
(b) the appellant’s significant history of mental illness during her marriage to the deceased, up until the time of the killing;
(c) the extensive history of violence inflicted by the deceased upon his mother and the appellant’s actions in attempting to protect her from that violence; and
(d) the financial contribution by the appellant to the household from her work until she ceased working in about 2002 as a result of the deceased’s abuse of her, and her contribution to looking after the deceased and the maintenance and upkeep of the matrimonial home, which is in effect the sole asset of his estate.
As to the history of violence inflicted on the accused, the appellant’s further submissions relied upon the findings of the sentencing judge. Reliance was also placed on the appellant’s affidavit, which gave an account which was consistent with the sentencing judge’s findings.
As to the appellant’s psychiatric history, reliance was placed by the appellant upon a series of medical reports which had been before the trial judge and upon the fact that the relevant aspects of the appellant’s psychiatric condition had been accepted by the sentencing judge.
As to the circumstances of the offence, the appellant’s further submissions relied upon the appellant’s affidavit, not the findings of the sentencing judge.
The appellant’s further submissions made a brief reference to the financial contribution without referring to any evidence concerning the financial contributions.
As to the relevance of the seven year term of imprisonment, the appellant’s further submission was that the punishment already imposed upon the appellant ‘should be sufficient’, and that the Court should not ‘punish [her] again by depriving her of her small inheritance.’
The further written submission on behalf of Megan Edwards, was that, notwithstanding the violent history of the deceased towards the appellant, the nature and gravity of the crime remained ’very real and ought to exclude the appellant from any benefit under the will.’ In this regard the submission particularly referred to:
(a) the fact that the crime was an intentional homicide which, but for s 9AC of the Crimes Act 1958, would constitute murder;
(b) the appellant’s emotional and psychological state had not been relied upon as a defence under Part 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and
(c) the implications of the crime were not limited to the termination of the life of a ‘repugnant individual’, as the deceased was a father and ‘the killing rendered a young woman fatherless’.
Disposition — relevant matters
The matters which I consider to be relevant to an assessment of criminal culpability are as follows.[125]
[125]The matters are drawn from the Sentence Reasons as well as the affidavit of the appellant sworn 3 April 2014, the affidavit of the appellant’s mother sworn 4 March 2014 and the affidavit of Andrew Brand, solicitor for the appellant, sworn 1 May 2014, which annexed a number of statements relating to the appellant’s medical history. These statements were from her treating psychiatrists, Dr Richard Price, Dr Albert L Kaplan, and Dr Julian Hughes, and from Dr Janet Towns, the medical practitioner who assessed the appellant’s fitness to undergo police interview immediately after the appellant’s arrest on 18 January 2011.
· The appellant brought about the violent death of the deceased using both a knife and a spear gun. A post-mortem examination revealed the deceased had sustained about 30 separate injuries inflicted with these two weapons. The sentencing judge found that some of these wounds were defensive in nature.[126]
[126]Sentence Reasons [49].
· The appellant had suffered domestic violence at the hands of the deceased for about 12 years. Police had been repeatedly called to intervene in the years leading up to the time of the offence, with the deceased being arrested on at least one occasion. An incident in June 2010 led to the appellant obtaining an intervention order which was in force at the time of offending. The order did not prevent the appellant and the deceased continuing to live together.[127] There was also violence perpetrated by the deceased against the deceased’s mother, with whom the appellant and the deceased lived for some time.[128]
[127]According to the appellant’s affidavit, the terms of that order were that the deceased was prohibited from committing an act of family violence against the appellant.
[128]Sentence Reasons [15].
· The appellant initially had falsely claimed that the deceased had been killed by intruders.
· In her interview with police two weeks after the incident the appellant said that over the prior two months the deceased had strangled, kicked and punched her. She said that the night before the offending the deceased had been up all night drinking and had been threatening to kill her. When the appellant awoke, the appellant said that the deceased had continued to physically assault her and had threatened to disfigure her and to set fire to her. The appellant said that she panicked and took hold of the deceased’s spear gun and shot it at the deceased. It bounced off but the appellant said that this aggravated the deceased and he grabbed a kitchen knife and came towards her. There was then said to be a struggle in which the deceased lost his balance and fell. The appellant said that she grabbed the knife and stabbed him ‘cos I was so — I was so frightened’. The sentencing judge had ‘serious reservations’ about the accuracy of this version of events, said that some aspects of her description could not be reconciled with the forensic evidence, and said that her account of having been attacked by the deceased with a knife and having disarmed him was ‘somewhat improbable’ in the circumstances of the case.[129] The account given in the appellant’s affidavit was in substance the same as the account which she had given in her record of interview, as to which the sentencing judge had had ‘serious reservations’.
[129]Ibid [35].
· The appellant pleaded guilty to defensive homicide. By her plea she accepted that she intended to kill the deceased or cause him really serious injury. She also accepted that, while she believed that she was in danger of being killed or seriously injured at the time of the offending, she did not have reasonable grounds for that belief. The sentencing judge found that ‘the wounds you inflicted were a disproportionate response to any threat that your husband posed to you’.[130]
[130]Ibid [49].
· The sentencing judge found that the appellant’s actions ‘were in no way premeditated, but rather a spontaneous response to a perceived threat’ and that the ‘response seems to have been generated in highly emotional circumstances’.[131]
[131]Ibid [43].
· The appellant had perpetrated violence against the deceased on a prior occasion. In September 2005, during an altercation between the appellant and the deceased, the appellant produced a corkscrew and a knife and stabbed the deceased four times, including to the back, neck, the rear of the head and the upper chest. The injuries required surgery. The appellant was convicted of assault occasioning actual bodily harm and was sentenced to one year nine months’ imprisonment, which was wholly suspended. The sentencing judge noted that on that occasion the appellant had claimed that she had acted in self-defence. She had said that the deceased had punched her repeatedly, but she had had no visible injuries of any kind, and the sentencing judge described the claim as ‘far-fetched’.[132] The sentencing judge said that this prior conviction assumed less weight than it might have otherwise because it ‘seems to have arisen out of the very same circumstances that resulted in the death of the deceased’.[133]
· The appellant had, what the sentencing judge described as, a ‘significant history of psychiatric illness’, including two involuntary admissions for psychiatric care in the year prior to the date of offending.[134] Her first admission was in September 2010 for ‘a first episode mania’ in which she was described as having grandiose delusions and poor insight. Her second admission was in late November 2010 after an episode of self-harm. She was released in early December, some one-and-a-half months prior to the offending, on a community treatment order, having been diagnosed with bipolar disorder and manic depression. The appellant had been seen and assessed the day before the offending. It had been determined that the community treatment order should not be revoked and that ‘she should be closely monitored over the next few days’.
· Upon arrest the appellant was regarded as unfit to be interviewed and she was detained at the Monash Medical Centre Adult Psychiatric Unit where she stayed for almost two weeks. She was diagnosed with ‘schizoaffective disorder with recent depression, possibly a mixed episode’ with a differential diagnosis of ‘major depression without psychosis or bipolar disorder-current episode depression/mixed’. In the week prior to the offending the appellant had appeared to be in a ‘bad mental state’, to have ‘deteriorated mentally’, to be ‘not coping’ and to be ‘acting irrationally’.[135]
[132]Ibid [13].
[133]Ibid [44].
[134]Ibid [9].
[135]Ibid [16].
Disposition — analysis
This case is not relevantly analogous to the circumstances that arose in Evans or Keitley.
In Evans a woman shot her partner after he had assaulted her and her daughter, had threatened to kill the daughter, and had then fetched a gun and loaded it and placed it on a table. The woman was charged with manslaughter but the jury was discharged on the basis that the trial judge considered that having regard to all the circumstances only a nominal punishment would be imposed. The effect of the jury discharge was that the woman was acquitted. Young J held that the forfeiture rule did not apply, referring amongst other things, to the fact that the death had been caused in the course of a domestic argument ‘in circumstances where there is a very minor degree of criminality’.[136]
[136]Evans (1985) 2 NSWLR 188, 193.
In Keitley, a woman pleaded guilty to manslaughter after she shot her partner following his threats to kill her, which fell against a backdrop of a relationship ‘punctuated by violence or threats of violence’. Because of her ‘highly disturbed emotional state’ at the time of the offending she was sentenced to a three-year community-based order. Coldrey J found that the woman had a ‘markedly diminished’ level of moral culpability as ‘the killing had its genesis in the ongoing domestic violence’ and ‘occurred at a time when she was gripped by fear and she was experiencing a level of emotional turmoil engendered by the deceased’s conduct which precluded rational judgment and which, to a considerable degree, appears to have clouded her actual perception of the actions undertaken by her’.[137] Coldrey J held that the forfeiture rule did not apply.
[137]Keitley [1992] 1 VR 583, 587.
The relevant issue is whether the appellant’s criminal culpability requires that the appellant should not take a benefit from the death. In my view it does. The appellant killed her abusive husband by inflicting 30 separate wounds on him with two different weapons. She intended to kill him or to cause him really serious injury. She believed that it was necessary to do what she did in self-defence but she did not have reasonable grounds for that belief. Important aspects of her account of what occurred could not be accepted by the sentencing judge. She initially gave a false account of what had occurred. She had been a victim of domestic violence and she was mentally unstable. All of this is reflected in the sentence of seven years’ imprisonment that was imposed. This is a sad case, as many such cases are, but it is not a case of moral culpability so low as to warrant no, or almost no, criminal sanction, as was the case in both Evans and Keitley. It is closer to the position in Re Stone.
Contrary to the submissions of the appellant, depriving an offender of a benefit because of their criminal culpability in this context, is not an additional ‘punishment’. It is the application in a particular context of the general principle that no person can obtain, or enforce, any rights resulting to them by their own crime.
Financial contributions by the appellant to the household may support a claim in equity but do not relevantly alter the analysis in this context. In this respect I agree with the majority in Troja.[138] If the appellant has a valid claim in equity, it will be unaffected by this decision.
[138]Troja (1994) 33 NSWLR 268, 293 (Mahoney JA), 300 (Meagher JA).
As was submitted on behalf of Megan Edwards, the criminal culpability of the offender in this case requires that she not be entitled to benefit from the death which she caused. The forfeiture rule applies to prevent the appellant from inheriting from the estate of the deceased. The appeal must be dismissed.
SANTAMARIA JA:
Summary
On 11 April 2012 Jemma Elizabeth Edwards (‘the appellant’) pleaded guilty in the Supreme Court (Weinberg JA) to one count of defensive homicide. The maximum sentence for that offence is 20 years’ imprisonment. The appellant’s victim was her husband James Charles Edwards (‘the deceased’). He had left a will dated 18 November 2004 (‘the will’). Under the terms of his will, he bequeathed the whole of his estate to the appellant provided she survived him. He was killed on 18 January 2011. On 6 May 2011, the first respondent (‘State Trustees’) obtained a grant of probate of that will. State Trustees applied pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the estate. State Trustees sought directions from the Court on how to distribute the assets of the estate in circumstances where the primary
beneficiary under the will had killed the deceased. The primary judge decided that she was required to apply the ‘forfeiture rule’ which she understood to provide that a killer is prevented from taking a benefit brought about as a direct result of that killing.[139] Accordingly, she declared that State Trustees were required to distribute the net assets of the estate of the deceased to Megan Edwards, who was the daughter of the deceased, on the basis that she was the sole next of kin entitled to participate in the distribution of the estate under an intestacy. On 11 September 2014, the appellant filed a notice of appeal in which she contended that the trial judge had erred in holding that the forfeiture rule did not contain a discretion for the Court to grant relief from such forfeiture where the circumstances of the killing evidenced a very low moral culpability on the part of a person whose actions caused the death.[140]
[139]Re Edwards [2014] VSC 392 (‘Reasons’).
[140]Megan Edwards was named as the first defendant in the proceeding and the second respondent to the appeal. On 12 February 2015, her solicitors wrote to the Registrar of the Court of Appeal informing him that she ‘does not wish to participate in the appeal but agrees to abide by any Orders that the Court may make.’ Jeannie Elizabeth Day (the mother of the appellant) was the second defendant in the proceeding and the third respondent to the appeal. She took no part either in the trial or on the appeal. Peter MacCallum Cancer Institute (a residuary beneficiary) was the third defendant in the proceeding. It appeared in the trial. However, both Megan Edwards and the Peter MacCallum Cancer Institute were represented when the matter was set down for mention on 18 December 2015. On 5 February 2016, Megan Edwards filed a written submission directed to the possibilities that (a) this Court would hold that there is a discretion to grant relief from the forfeiture rule based on the level of the person’s moral culpability, and (b) this Court chose to exercise that discretion. Further, on 25 February 2016, the solicitor for Megan Edwards wrote to the Registrar of the Court of Appeal foreshadowing an application to the Court for leave to file written submissions on her behalf. In that letter, the solicitor explained that Megan Edwards had taken no part in the hearing of the appeal because she was proceeding upon a ‘mistaken understanding’ that the position of the State Trustees ‘had not changed at trial and continued to affirm the proposition that the forfeiture rule should be applied rigidly’. This observation was not consistent with how the trial judge described the State Trustee’s submissions: Reasons [20]. On 7 March 2016, the Court granted Megan Edwards leave to file written submissions on the question of whether the rule that a person who kills another by an unlawful act forfeits any benefit arising as a direct result of that act ought to be applied strictly to the appellant and not on a discretionary basis.
For the reasons that follow, I would dismiss the appeal.
The background[141]
[141]This account of the background facts has been taken principally from the description of them given in the Reasons of the trial judge and in the Sentence Reasons of Weinberg JA when he sentenced the appellant after she had pleaded guilty to one count of defensive homicide: R v Edwards [2012] VSC 138 (‘Sentence Reasons’). Had they not been adduced in evidence, the Sentence Reasons may not have been able to be used by the trial judge as evidence of the facts contained in them. However, they were placed in evidence. See [109]–[116] below.
The appellant was born in Innisfail, Queensland on 10 January 1967. Her mother had described her as being a happy and vibrant person. She qualified as a nurse and worked in nursing until 2002. The appellant had a history of psychiatric illness. At various times, she had been diagnosed as suffering from anxiety and depression. On two occasions, she had been admitted to psychiatric care and had been subjected to a community treatment order.
The appellant met the deceased in 1997; she married him in 1998. The deceased had been married once previously. He and his first wife were divorced in 1986 following a ‘turbulent relationship’ that involved several instances of domestic violence.[142] There was one child of that marriage, a daughter, Megan. After they were married, the appellant and the deceased lived in various States. In 2006, they came to live permanently in Victoria.
[142]Sentence Reasons [4].
In January 2011, the appellant and the deceased were living at 36 Royalty Avenue, Highett. That house had belonged to the deceased’s mother. She had died in June 2010.
The deceased was a heavy drinker who had been described by neighbours as a ‘loner’ and, on occasion, as ‘violent and confrontational’. There was a lengthy and well documented history of his having inflicted violence on his daughter and upon his mother. The deceased similarly inflicted violence upon the appellant. Between 1999 and 2005, police had been called to intervene in domestic disputes between the appellant and the deceased. On each such occasion, the deceased was found to be drunk, abusive and violent. There were further instances of such violence between 2006 and 2010. In June 2010, an intervention order had been taken out protecting the appellant from the deceased.
In September 2005, the appellant and the deceased were living in Howlong, New South Wales. There had been a dispute between them. The appellant produced a cork screw and knife and stabbed the deceased four times ‘once to the left hand side of his back, once to the right hand side of his neck, once to the rear of his head, and once to the right hand side of his upper chest’.[143] Despite having claimed to have been acting in self-defence, the appellant was charged with a number of counts of assault and causing grievous bodily harm. In his Sentence Reasons Weinberg JA said: ‘The police were no doubt influenced, in charging you, by the fact that despite your claim to have been punched repeatedly over a period of some 30 minutes (as well as being threatened with death) you had no visible injuries of any kind. When asked about that fact you claimed that the deceased knew karate, and therefore how to inflict blows without leaving any visible marks.’[144]
[143]Ibid [12].
[144]Ibid [13].
On 2 September 2005, the deceased had taken out an apprehended violence order against the appellant.
In the event, on 9 August 2006, the appellant pleaded guilty to one count of assault occasioning actual bodily harm. She was sentenced to be imprisoned for a term of one year and nine months, wholly suspended.
In early January 2011, the appellant went to Queensland to spend time with her mother. During the sentencing hearing, her mother gave evidence that the appellant had a large bruise on her hand which she told her mother had been caused by the deceased. Her mother observed that the deceased was ‘in a bad mental state at that time’.[145]
[145]Ibid [15].
On 13 January 2011, the appellant returned to Melbourne. Thereafter, she was observed to be crying, not coping and as acting irrationally. She attended a medical clinic to seek help for anxiety.
On the night of 17 January 2011, a neighbour overheard a serious domestic dispute taking place between the appellant and the deceased. At about 10am on the morning of 18 January 2011, another neighbour heard the appellant screaming for about five minutes. At about this time, the appellant called Ambulance Victoria and asked them to attend the premises at Highett.
The deceased had sustained multiple stab wounds. The appellant was present at the scene. She told police that the deceased had been killed by two male offenders, both of whom had fled the scene. The appellant was arrested but deemed unfit to be interviewed. Until 31 January 2011, she was detained at the Monash Medical Centre Adult Psychiatric Unit. On that day, she was released into police custody, and interviewed. During the course of that interview, she confessed to killing the deceased but told police she had acted in self-defence. In the course of her interview, she said:
[O]n the night before he died, he’d been up all night drinking, and umm, he’d been coming in and out of the room all night and threatening me and making me really afraid. Umm. Well, this has been going on for – really badly for the last few months. He s-, he strangled me and kicked me and umm, punched me. Done all sorts of things like that. So I was really, really concerned because he was – the last couple of nights he’s been saying a lot that he’s going to kill me. And umm, so he was threat-threatening me the night before, and then I – I went to sleep for a while and I was hoping that it would be over when I woke up. And when I woke up, he was still drunk. And uhh – and he punched me. And I was sitting at the chair and he pushed me off the chair and – and kicked me. And then he said that he was going to get – he was going to get some petrol and he was going to – well, first he said he was going to cut my eyes out and cut my ears off. And disfigure me. And then he said he was going to get some petrol from out the back and he was going to set me on fire and ruin my pretty face so no-one would ever look at me ever again. And I panicked. As he was storming out, I grabbed the spear gun because he’d used the spear gun on me in the past, he shot me in the stomach with it and it just bounced off, so I didn’t think it would do any harm. I thought it would just stop him, because I was so petrified. And – and so I shot it, and it did bounce off, and he got really wild and angry so he grabbed a kitchen knife and came towards me with it, and I struggled with him, and he lost his balance and fell. And I grabbed the knife and I stabbed him ‘cos I was so – I was so frightened. And the rest of it was just a blur. And then I realised what had happened, and I called – I called ‘000’. And – and then I tried to give him CPR. And then the ambulance came and when they asked me what had happened, I lied because I panicked, ‘cos I was so frightened. And then I did tell the truth later on that day. But that’s what happened, and I’ll be – and I’m sorry it happened, but I was really afraid for my life. I’m still in shock. But it was self defence ‘cos I was really, really terrified of him.
In his Sentence Reasons, Weinberg JA summarised the forensic evidence about the killing:[146]
The post-mortem examination revealed a number of incised injuries to the upper and lower body. Although the evidence does not reveal the precise number of wounds inflicted, it was agreed during the course of the plea that, in broad terms, the deceased had sustained about 30 or so separate injuries. Of these, about six involved significant stab wounds. A majority of the injuries were inflicted in the upper body and head area, but there were also some wounds to the legs, fingers and forearms. There was, in addition, a large ovoid wound 2 centimetres in depth to the midline of the back. That wound was suspected of having been caused by the spear that was located at the scene.
The pathologist noted that the wounds to the left side of the chest had passed through the body of the left lung, and penetrated the heart. These wounds were likely to have been inflicted by the knife found at the scene. He concluded that it was possible that a number of the wounds had been inflicted post-mortem. The deceased had a blood alcohol reading of between 0.04 and 0.07 grams per hundred millilitres.
[146]Ibid [25]–[26].
The appellant was charged with murder. In the event, she pleaded guilty to one count of defensive homicide. She was sentenced to seven years’ imprisonment with a non-parole period of four years and nine months.
The appellant’s affidavit
The appellant made an affidavit which was filed in the present proceeding.[147] In that affidavit, she described:
[147]At trial, in addition to the affidavit of the appellant, the following affidavits were filed: (a) Rebeka Pascuzzi (State Trustees); (b) Megan Edwards (the daughter of the deceased); (c) Jean Day (mother of the appellant); and (d) Andrew Brand (solicitor to the appellant). Exhibited to the affidavits were various wills together with statements made by various doctors with respect to the appellant. In addition, the Reasons indicate that an affidavit of Sarah Gittins was also filed: Reasons [10]. The transcript of the hearing below indicates that the Sentence Reasons were an exhibit to the affidavit of Ms Gittins. During the conduct of the hearing below, counsel for the appellant referred to the Sentence Reasons. The Sentence Reasons did not form part of the Appeal Book.
(a) her family history and her marriage to the deceased;
(b) the violence inflicted by the deceased on his mother and the violence that he had inflicted upon her;
(c) the incident which occurred on 2 September 2005 when she ‘stabbed the deceased four times around the back, head and chest’.
(d) a ‘number of disclosures of alleged domestic violence to my medical practitioners’ which she made between November 2006 and June 2009;
(e) the making of an intervention order on 7 June 2010 prohibiting the deceased from committing an act of family violence against her;
(f) violence inflicted on her by the deceased on 11 August 2010 as well as on other occasions in Queensland and on ‘one of our dozen trips up and down to Melbourne’ (from Queensland);
(g) her ‘significant history of psychiatric illness’ in which she had been diagnosed ‘with anxiety and depression’;
(h) her diagnosis ‘as having a manic episode and being delusional’ as a result of which she was treated as an involuntary patient in the Monash Medical Centre Adult Psychiatric Unit and was later subjected to a community treatment order; and
(i) her diagnosis in November 2012 ‘as having a relapse of bipolar disorder’ for which she was treated again as an involuntary patient in the Monash Medical Centre Adult Psychiatric Unit before again being released on a community treatment order.
The appellant gave the following account of her killing of the deceased. She said:
On 18th January 2011 I inflicted multiple stab wounds to the upper body, right arm and the left leg of the deceased. As a consequence he died. I was arrested and subsequently assessed as unfit to be interviewed. I was then held at the Monash Medical Centre Adult Psychiatric Unit until 31st January 2011, at which point I was released into Police custody, interviewed and charged with the murder of the deceased. I confessed to the killing of the deceased and told them that it was committed in an act of self defence.
On 31 January 2011, the appellant was interviewed by the police. In her affidavit, she summarised the contents of her record of interview.[148] That summary included the following:
[148]The record of interview itself was not in evidence.
·On the night before the deceased had been up all night drinking and had been going in and out of the room all night threatening me.
·On the morning of the 18th I woke up and he was still drunk.
·The deceased assaulted me and threatened to cut my eyes out and cut off my ears and pour petrol on me.
·As the deceased stormed out I grabbed a spear gun and shot it at him and it bounced off. The deceased had previously shot me with the spear gun and it had bounced off and I did not think it would do any harm.
·After the spear bounced off him, the deceased became really wild, went to the kitchen, grabbed a knife and came at me with it.
·I struggled with the deceased, and he lost his balance.
·I go the knife from him and stabbed him because I was so frightened.
·Following the stabbing I called ‘000’ and then tried to give the deceased CPR.
·I lied to the Police because I panicked.
·It was self-defence and I was really terrified of him.
…
·I did not drink at all on the Monday night.
·When I went to bed the deceased was sitting in the dining room at the table drinking.
·The deceased assaulted me by kicking me in the tailbone area and pushed me and said he was going to kill me one of these days, before I went to bed.
·When I got up in the morning the deceased was standing up, appeared to be drunk, not in control of his faculties and stumbling around.
·The deceased had threatened to pour petrol over me and set me on fire.
·I shot the deceased in the upper back with the spear gun when he was on his way to the back door and was near the kitchen.
·The deceased went crazy, grabbed the knife from the kitchen bench and came at me.
·I wrested the knife off him and stabbed him but cannot recall how I got it out of his hands or any of the specific details of the stabbing.
Even if the correct view be that espoused by those such as Young J, Rolfe J and Coldrey J, and even if, on a full analysis of the relevant facts, it were to be held that the Defendant was not disentitled, either, to take beneficially by survivorship, or, to take on an intestacy, the facts, first, that she is presently imprisoned in Mulawa Detention Centre, and, second, that she has, in any event, consented to the grant being made to the Plaintiff, mean that it is virtually inevitable that she be passed over. Further, the fact that each of the Plaintiff's two sisters has formally consented to the grant to the Plaintiff of Letters of Administration means that, subject only to the interests (if any) of the Defendant, and the interests of the Plaintiff's infant brother Domenico being adequately protected, it would now be appropriate for there to be made such Orders as would enable that grant to be made.
[250](Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992).
[251]Ibid 17–8 (citations omitted).
In Miliankos, one brother sought a declaration that another brother was disentitled to and had forfeited any claim to the benefit of their father’s estate in so far as the latter brother had feloniously killed the testator. Nathan J followed the decision of Coldrey J in Keitley and formulated the issue as follows: ‘the fundamental question for the court is to determine whether the taking of a benefit by the younger brother through his crime would be unconscionable as representing an unjust enrichment to him so as to attract the rule of public policy, that is, the judge made rule that a person should not benefit from the commission of a crime.’[252] The younger son had killed the father by stabbing him with a knife during a domestic dispute. He was charged with murder and found guilty of manslaughter. The jury ‘strongly’ recommended mercy. In the event, he decided that the moral culpability which should attach to the conduct of the younger brother was ‘of a low order, and is not of such a high order that the public policy is best served by saying he should become disentitled to a share of his father’s bounty.’[253]
[252](Unreported, Supreme Court of Victoria, Nathan J, 24 March 1994) 1.
[253]Ibid 11.
Troja v Troja
However, the efforts by various judges to develop the law with respect to forfeiture were arrested by the New South Wales Court of Appeal in Troja.
In that case, a testator was killed by his wife. The couple had married in January 1982. The marriage had been unhappy. The wife had complained that her husband was seeking to deprive of her of any interest in their assets and that he had abused her. On 2 July 1989, the wife deliberately shot and killed her husband. Her statement to the police included the following: ‘I pointed the rifle at him and fired. I recocked, I reloaded and shot the bastard again to make sure he fuckin’ stayed dead. I felt free. All the abuse had stopped. All I could think of was if I got 20 years in jail, I couldn't be no more lonely than what I’d been. I was free, just no more abuse and I didn’t cry.’[254] The wife was charged with the murder of her husband. The jury found her not guilty of murder but guilty of manslaughter. It was not in dispute that the verdict was explained by the defence of diminished responsibility upon which she had relied at trial. She was sentenced to ‘eight years penal servitude, expiring on 23 July 1997; with an additional term of four years, dating from that date’. Appeals against conviction and sentence were dismissed.
[254](1994) 33 NSWLR 269, 272.
The deceased had executed a will which had not been revoked upon his death. The will contained provisions appointing his wife as his executor and making her his sole beneficiary. The deceased’s mother issued a summons out of the Equity Division of the Supreme Court of New South Wales in which she sought a declaration that the appellant had become disentitled to take any benefit under the will of the deceased by reason of the forfeiture rule. The summons also sought a declaration that the mother was entitled to take the whole of the estate ‘as substitute beneficiary under the will’. The appellant filed a cross-claim in which she sought a declaration that she was entitled to the benefit of the whole of the estate under the will or, alternatively, that she was entitled to provision out of the estate pursuant to the Family Provision Act 1982. Waddell CJ in Eq held that she was not entitled to her claim to the whole of the estate on the basis that the law did not allow a person who deliberately killed another to benefit from the killing.[255] He ordered the Public Trustee, as administrator of the deceased’s estate, administer the estate on trust for the deceased’s mother, who was the residuary beneficiary under his will.
[255](Unreported, Supreme Court of New South Wales, Waddell CJ in Eq, 15 February 1993).
The New South Wales Court of Appeal (Mahoney and Meagher JJA, Kirby P dissenting) dismissed the appeal. Mahoney JA identified four facts which emerged from the evidence: (1) the wife killed the husband: she planned to kill him and she killed him deliberately; (2) when she killed him, she had reason to be and was emotionally upset, was or had been very depressed, and felt great resentment towards him; (3) she had no legal justification for killing him and she claimed none; and (4) she was apparently mistaken as to the ownership of the property with which she and the husband had been concerned and her rights in respect of it.[256] In these circumstances, the principle affirmed in Helton applied: ‘that by committing a crime no man could obtain a lawful benefit to himself’.[257] Mahoney JA said that the principle was not new, it had been affirmed and applied in different and various contexts, and that it was therefore ‘a principle of law long established and applied in various circumstances. The applications of it to trusts, wills and intestacies are but some applications of it’.[258] He said that pressures such as ‘an unhappy marriage and an ongoing depression’, while they may explain the planned and deliberate killing of a human being, do not excuse it.[259] Meagher JA said that the forfeiture rule was ‘absolute and inflexible’.[260] It provides ‘that where a person who would otherwise obtain a benefit by the death of another, has brought about that other’s death by violent means, he shall not be entitled to take that benefit.’[261] The rule was based on public policy: ‘an abhorrence of the notion that one may profit from killing another, an odium occisionis’.[262]
[256](1994) 33 NSWLR 269, 289–90.
[257]Ibid 295, quoting Helton (1940) 63 CLR 691, 710.
[258](1994) 33 NSWLR 269, 296.
[259]Ibid 298.
[260]Ibid 299.
[261]Ibid.
[262]Ibid. Both Mahoney JA (at 294) and Meagher JA (at 300) explained that the rule had no application to the property entitlements which the wife had already acquired in equity at the time of her husband’s death. Both referred to Baumgartner v Baumgartner (1987) 164 CLR 137.
In his dissenting judgment, Kirby P canvassed all the relevant authorities and suggested a reformulation of the rule:[263]
[263]Ibid 286.
The forfeiture rule is, in reality, an application to what would otherwise be
the operation of law of the equitable principles which deny persons from
gaining benefits from their own morally culpable conduct. To prevent that
happening, a court of equity is authorised to impose a constructive trust to
prevent the perpetrator’s gain. The trust will be imposed by the court to
achieve a just result and to prevent the unjust enrichment of the wrongdoer.
In fashioning the trust, the court will also ensure against the unjust
enrichment of third parties, often at the expense of the wrongdoer. In many
cases, perhaps most, the conduct of the wrongdoer in perpetrating a
felonious homicide will be such that the constructive trust, fashioned by the
court, will deprive the wrongdoer completely of any benefit whatsoever
either under the will of the victim, or by the law of intestacy. Equity will
operate upon the conscience of the wrongdoer. In this way, there is no
extraordinary defiance by the courts of the clear operation of statute or other
law. Nor is there any artificial interference in the ordinary operation of the
common law of property. Equity simply intervenes to prevent an
unconscionable result. In particular circumstances, an unconscionable result
could include the complete loss by the wrongdoer (and those taking through
the wrongdoer) of the benefits provided by the will, or of the benefits
provided by the law of intestacy.
The foregoing is in line with correct legal principle. It accords with the
authorities long accepted in the United States, urged by Professor Ames. It is
wholly in keeping with the proper, legal and equitable principles applicable
in this jurisdiction. It is also a recognition of what Waddell CJ in Equity
ultimately resolved to do in his determination of the outcome of this
particular case.
For their part, Mahoney and Meagher JJA rejected the reformulation of the rule proposed by Kirby P. In particular, they rejected the idea, first adumbrated by Young J in Evans, that the rule was principally equitable in nature. Mahoney JA said that the rule was one of law: the law will not enforce ‘rights directly resulting to a person asserting them from the crime of that person’.[264] It was a principle of law that applied to trusts, wills, intestacies and so forth. Mahoney JA thought that the principle was not in doubt but that the question was whether it should be applied in the circumstances of the present case which have been described above.[265] In the present case he said that the relationship between the killing and the claim to the benefit from it was ‘direct’: ‘it is the killing which has brought about the operation of the will. There may be borderline cases. But, as seen from this and other legal systems, to prevent a criminal killer from taking directly the estate of her victim does not appear to me to involve departure from the dictates of justice’.[266] Meagher JA said that the rule provides that ‘where a person who would otherwise obtain a benefit by the death of another, has brought about that other’s death by violent means, he shall not be entitled to take that benefit’.[267] He rejected the idea that the Court had a discretionary power to relieve from the rule.
[264](1994) 33 NSWLR 269, 294 quoting the majority judgment in Helton (1940) 63 CLR 691, 709.
[265]See [177].
[266](1994) 33 NSWLR 269, 297–8.
[267]Ibid 299.
In Soukup, Gillard J followed the majority judgment in Troja and refused to follow the decision of Coldrey J in Keitley. A question arose whether a man who had strangled his wife was entitled to participate in the distribution of her estate upon intestacy. The husband had been charged with murder. The charge was reduced to manslaughter and he pleaded guilty. He was sentenced to a good behaviour bond for five years. It appears that the husband was suffering from a serious medical and psychological condition the impact of which was said to explain his behaviour in causing his wife’s death. The sentencing judge said that, by reason of his plea of guilty, he should be taken to have admitted that he knew what he was doing and that he knew what he was doing was wrong. The judge said ‘the Crown accepted the plea of guilty to manslaughter on the basis that the death arose from an unlawful and dangerous act without your having formed either such intention’.[268] However, he concluded that imprisonment would be inappropriate. He said ‘the moral culpability for your wife’s death is reduced by virtue of the fact that your conduct was undoubtedly, and to a very significant degree, a product of the impaired emotional control caused by your neurological condition’.[269] The trial judge refused to follow the decision in Keitley. He disagreed with Coldrey J as to whether any Victorian authority applied to the situation. He considered, rather, that the law in Victoria was that stated in Helton. In addition, he approved of the judgments of Mahoney and Meagher JJA in Troja. He concluded:[270]
In my opinion, a person who kills another and is convicted of manslaughter forfeits any benefit to the estate of the deceased pursuant to will or in accordance with the provisions of any statute on an intestacy.
He considered that for the judiciary to attempt ‘to abrogate or modify the rule in a manslaughter case on the ground that the level of moral culpability is small, is to indulge in judicial legislation’.[271]
[268](1997) 97 A Crim R 103, 117.
[269]Ibid.
[270]Ibid 114.
[271]Ibid. Gillard J said that he had been ‘very much influenced by the thoughts on public policy’ in the speech of Lord Wright in Fender v St John-Mildmay [1938] AC 1, 38–42.
Dunbar v Plant and the scope of the rule
Whether the rule was to be confined to cases of ‘of deliberate, intentional and unlawful violence, or threats of violence’ was considered in Dunbar. In that case, a young couple who had acquired assets together had become engaged to be married. The defendant had been accused of theft by her employer. The young couple agreed to commit suicide. They made some unsuccessful attempts; eventually, he succeeded and she survived. The father of the deceased, as the administrator of his estate, sought a declaration as to the ownership of various assets including his son’s half share in a house, various joint bank and building society accounts and the proceeds of two insurance policies, one of which was on the deceased’s life for the benefit of the defendant. The judge found that the defendant had criminally aided and abetted her fiancé’s suicide contrary to s 2(1) of the Suicide Act 1961. He held that the forfeiture rule applied but exercised his discretion under the Forfeiture Act 1982 so that the defendant could take a share in some of the assets but not the proceeds of the insurance policy on his life. She appealed to the Court of Appeal. The question relevant for present purposes is whether the forfeiture rule applied. The appellant contended that the rule only applied where the offender was guilty of deliberate, intentional and unlawful violence or threats of violence. She referred to Gray. She contended that her conduct did not answer that description as her fiancé had killed himself and that she had not used any deliberate or intentional violence or threat of violence against him. The Court of Appeal agreed with her.
Phillips LJ (with whom Hirst LJ agreed) said that the law with respect to the forfeiture rule had been developing throughout the 20th Century and that, in England, its development had been, to an extent, intercepted by the Forfeiture Act 1982. There had been a public appreciation of the ‘different degrees of culpability that attend conduct that used to be designated as murder’.[272] Further, the legislature had provided forms of mitigation in the cases of diminished responsibility and provocation. The ‘motor manslaughter’ cases provided further examples of the attenuation of the rule. It seems that he considered that the judgments in Gray were designed to narrow the operation of the rule to cases in which death had resulted from deliberate intentional and unlawful violence or threats of violence. Some judges, however, had applied the rule rigorously even where the intended beneficiary had been convicted of manslaughter rather than murder on grounds of diminished responsibility.[273] Phillips LJ said that it was time to pause and take stock. In doing so, he referred to the dissenting judgment of Kirby P in Troja. Phillips LJ said:[274]
However, the harshness of applying the forfeiture rule inflexibly to all classes of manslaughter in all circumstances is such that I do not consider that, absent the statutory intervention which occurred, the rule could have survived unvaried to the present day. The obiter dicta of Salmon and Phillimore LJJ in Gray vBarr and Lord Lane CJ in Ex parte Connor were straws in the wind. The rule is a judge-made rule to give effect to what was perceived as public policy at the time of its formulation. I believe that, but for the intervention of the legislature, the judges would themselves have modified the rule. Furthermore, it seems to me that the only logical way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability, or such a high degree of mitigation, that the sanction of forfeiture, far from giving effect to the public interest, would have been contrary to it. Alternative suggestions that the rule should be restricted to cases of deliberate killing, or deliberate violence leading to death, do not cater for cases of diminished responsibility or provocation, where the mitigating features may be such as to render it particularly harsh to apply the forfeiture rule.
[272]Dunbar [1998] Ch 412, 431.
[273]He referred to In Re Giles [1972] 1 Ch 544 (Pennycuick V-C),
[274]Dunbar [1998] Ch 412, 435-436 (citations omitted).
Mummery LJ dissented. He surveyed the authorities and formulated the following propositions: (1) the forfeiture rule had always applied where the benefit resulted from the commission of murder by the intended beneficiary; (2) the principle was not confined to murder cases; it could extend to manslaughter; (3) the rule did not apply to all cases of manslaughter ‘any more than it applies to all other crimes regardless of their nature’;[275] what matters is ‘the nature and not the name of the crime’;[276] (4) it extended to cases in which the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence and included cases where death was not intended; (5) however, the rule did not depend upon the presence of acts or threats of violence; it is sufficient ‘that a serious crime has been committed deliberately and intentionally’.[277] Mummery LJ held that the rule depended upon the public policy that no one can benefit from his own wrong and that it was the nature of the crime that determined the application of the principle.[278] He said:[279]
In my judgment, however, the presence of acts or threats of violence is not necessary for the application of the forfeiture rule. It is sufficient that a serious crime has been committed deliberately and intentionally. The references to acts or threats of violence in the cases are explicable by the facts of those cases. But in none of those cases were the courts legislating a principle couched in specific statutory language. The essence of the principle of public policy is that (a) no person shall take a benefit resulting from a crime committed by him or her resulting in the death of the victim and (b) the nature of the crime determines the application of the principle. On that view the important point is that the crime that had fatal consequences was committed with a guilty mind (deliberately and intentionally). The particular means used to commit the crime (whether violent or non-violent) are not a necessary ingredient of the rule. There may be cases in which violence has been used deliberately without an intention to bring about the unlawful fatal consequences. Those cases will attract the application of the forfeiture rule. It does not follow, however, that when death has been brought about by a deliberate and intentional, but non-violent, act (e.g. poison or gas) the rule is inapplicable. In Whitelaw v Wilson Kingstone J in the High Court of Ontario applied the forfeiture rule to the survivor of a suicide pact in which both husband and wife drank arsenical poison. The wife died. The husband survived and it was held that he was not entitled to any share in his deceased wife’s estate, as he was guilty of aiding and abetting, counselling and procuring his wife’s suicide.
[275]Ibid 423.
[276]Ibid 424.
[277]Ibid 425.
[278]Ibid. When considered with the rest of his remarks, the reference by Mummery LJ to the ‘nature of the crime’ is a reference to the description that a civil court would give to the conduct in question and not to what might have been the charge in any related criminal proceedings.
[279]Ibid (citation omitted).
Public Policy
The appellant contended that the ‘underlying public policy of the rule is not static and must change with time to reflect changes in the society’s values and morality’. She referred to Stevens.[280]
[280](1946) 72 CLR 1, 28 (Dixon J).
It is true that, in the authorities, the forfeiture rule is said to be a rule of ‘public policy’. Sometimes, the rule is said to be based on public policy; on other occasions it is said to be the expression of public policy. So, in Helton, Dixon, Evatt and McTiernan JJ appear to have accepted, as a principle of public policy, the principle that ‘no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person’.[281] In Gray, Lord Denning MR said that a claim under an insurance policy was barred by ‘public policy’ where the person seeking indemnity had been guilty of deliberate, intentional and unlawful violence from which resulted the death of the victim.[282] Salmon LJ said ‘although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun should be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted’.[283] In Troja, Meagher JA said of the rule that provides ‘that where a person who would otherwise obtain a benefit by the death of another, has brought about that other’s death by violent means, he shall not be entitled to take that benefit’. He said ‘[t]he basis of the doctrine is public policy, an abhorrence of the notion that one may profit from killing another, an odium occisionis’.[284]
[281](1940) 63 CLR 691, 709.
[282][1971] 2 QB 555, 567–9.
[283]Ibid 581.
[284](1994) 33 NSWLR 269, 299.
In Evans, Young J asked the question whether in 1985 in New South Wales ‘there is a rule of public policy which makes it anti-social to permit a wife who has been threatened by her husband that he will kill her and her children, and who has shot him to prevent mayhem, [is] debarred from recovery’.[285] He considered that ‘the ethos prevailing in this State at this time is that it is commonly recognised that unfortunate situations may occur in family groups whereby a death regrettably occurs because of a situation of domestic violence’.[286] He thought that it would be ‘socially unreal for me not to recognise the same thing in this Court of equity and good conscience’.[287]
[285](1985) 2 NSWLR 188, 192.
[286]Ibid.
[287]Ibid.
When used in the law, the expression ‘public policy’ is not without its ambiguities. In Stevens, the Court was concerned with the question whether a payment made by a police association to support a member who had been engaged in legal proceedings was ultra vires the association. It had been contended that the payment would infringe the law of maintenance. Dixon J said:[288]
The law of maintenance is founded not so much on general principles of right and wrong or of natural justice as on considerations of public policy (per Lord Esher): Alabaster v Harness. Notions of public policy are not fixed but vary according to the state and development of society and conditions of life in a community.
It will be noticed that Dixon J contrasts ‘general principles of right and wrong or of natural justice’ with ‘considerations of public policy’. In my opinion, the principles which underpin the forfeiture rule belong truly to the former category rather than to the latter. In other words, in referring to ‘public policy’, Dixon J was not referring to something so fundamental as the policies or principles upon which the forfeiture rule is based.
[288](1946) 72 CLR 1, 28 (citation omitted).
It will be noticed that, in Evans, Young J detected a change in public policy as justifying a change in the application of the forfeiture rule: see [160] above. Implicit in his suggestion is that ‘public policy’ merely reflects public attitudes and that, as there has been a change in public attitudes, public policy must change. In many cases where reference is made to ‘public policy’, that suggestion would have force. For my part, the concept of ‘public policy’ that is the foundation of or is expressed in the forfeiture rule is not so flexible. To me, the rule that a person should not benefit directly from his own crime is a rule as fundamental as rules such as the rules of natural justice or the principle of legality.
Conclusion
It will be recalled that, in her grounds of appeal, the appellant contended that the trial judge had erred in holding that the forfeiture rule was absolute and inflexible and did not contain a discretion for the court to grant relief from such forfeiture where the circumstances of the killing evidence a very low moral culpability on the part of the person whose actions caused the death. She said that the trial judge had erred in not following several decisions including the dissenting judgment of Kirby P in Troja. Similarly, State Trustees submitted that the correct approach was for the Court to declare that any unlawful conduct which causes death will, prima facie, bring about forfeiture, but that the Court has jurisdiction to grant relief against forfeiture in appropriate exceptional cases.
In my opinion, there is no basis upon which this Court can confer upon itself the discretion which legislatures in other jurisdictions have conferred upon their courts. Further, the forfeiture rule is a rule of law and not simply a principle or maxim of equity. While the scope of the rule must be determined, where it applies there is no basis to give relief from its operation in any particular case. The rule is not just a conclusion which can be drawn after a court has considered all the circumstances of the case and concluded that a beneficiary should not be entitled to receive any of the assets of the person that he or she has killed; it is not just a residual category. It is a rule that applies at the commencement of the enquiry; it is not simply a label to sum up the result of an enquiry. Although any court will have great sympathy for the circumstances of a person, such as the appellant, who has suffered violence at the hands of another, its sympathy does not justify it from excluding the application of the rule to her. Finally, there has been no relevant change in public policy. The expression ‘public policy’ does not refer to any stable concept. Notwithstanding that different sentences are used to express them, some propositions of law which are described as deriving from public policy are more readily set aside than others. At a general level, public policy underlies the principle that the law will not permit a wrongdoer to benefit from his wrong. At a more particular level, it provides that where a person who would otherwise obtain a benefit by the death of another has brought about the latter’s death by violent means, he or she shall not be entitled to take that benefit. Such propositions are part of the architecture of our law. If the shape of our law is to be changed, it must be parliament that does so. For these reasons, the appellant has failed to distinguish Helton or to show that Troja was ‘plainly wrong’.
It remains necessary to consider whether, by reason of what she did, the rule applies to the appellant. As indicated above, the application of the rule is not always clear. Its application does not depend upon the way in which the conduct was prosecuted or dealt with in the criminal jurisdiction; it depends rather upon how that conduct is assessed in the civil jurisdiction. The authorities indicate that, at the very least, the rule will be applied where a person is guilty of ‘deliberate, intentional and unlawful violence, or threats of violence’;[289] it applies in circumstances in which there is no legal justification for the killing. That is not to say that it could not apply in other cases of culpable killing where the violence was not deliberate. However, it does not apply where, for some reason, the person was not aware of the nature of their acts or of the moral wrongdoing involved: cases of insanity or cases where, for example, rational judgment has been precluded.
[289]Gray [1971] 2 QB 554; see [137]–[138] above.
It is necessary to recall the circumstances in which the appellant killed her husband.[290] On any view, her conduct was deliberate, intentional and unlawful; it was ‘wilful and culpable’. Although there was evidence that she had been the victim
of constant violence at the hands of her husband, it was not suggested that her culpability was diminished by circumstances such as the paranoid schizophrenia that was present in Kemperle or that she was experiencing a level of emotional turmoil that ‘precluded rational judgment and which, to a considerable degree, appears to have clouded her actual perception of the actions undertaken by her’ as in Keitley. In Troja, Mahoney JA identified several facts that emerged from the evidence including that the wife had killed her husband deliberately and that, when she killed him, she had reason to be and was emotionally upset, very depressed and felt great resentment towards him. But, she had no legal justification for killing him, and claimed none. It was in these circumstances that he said that while ‘an unhappy marriage and an ongoing depression’ may explain the planned and deliberate killing of a human being they did not excuse it. It was also in these circumstances that Meagher JA said that the forfeiture rule was ‘absolute and inflexible’ and provided that a person is not entitled to obtain a benefit from the death of another where the person ‘has brought about that other’s death by violent means’.
[290]See [90]–[105] above.
It is to be recalled that Weinberg JA sentenced the appellant to seven years’ imprisonment with a non-parole period of four years and nine months. Although there was evidence that explained why the appellant had killed her husband, there was no legal justification for what she did.
I would dismiss the appeal.
KYROU JA:
I agree with Whelan JA.
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