Public Trustee of New South Wales v Fitter and (3) Ors

[2005] NSWSC 1188

CITATION:	In the Estate of the Late Fiona Ellen Fitter & The Forfeiture Act 1995; Public Trustee of New South Wales v Fitter & (3) Ors [2005] NSWSC 1188
HEARING DATE(S):	9/11/2005; 10/11/2005 and 11/11/2005
JUDGMENT DATE :	24 November 2005
JURISDICTION:	EQUITY DIVISION
JUDGMENT OF:	Lloyd AJ
DECISION:	1. The time by which the cross-claim by the Fourth Defendant is to be filed is extended to 9 November 2005. 2. An Order that pursuant to s 11 of the Forfeiture Act 1995 the forfeiture rule shall apply with respect to the First, Second and Third Defendants as if the First, Second and Third Defendants had been found guilty of the murder of Fiona Ellen Fitter. 3. An Order that the First Defendant hold a one-half interest in the net proceeds of sale of Folio Identifier 235/214758 and known as No. 48 Grand Parade, Glossodia on trust for the Plaintiff as administrator of the estate of the deceased. 4. An Order that the First, Second and Third Defendants hold on trust for the Plaintiff as administrator of the estate of the deceased such benefits as they may receive under the deceased’s superannuation policy with ING Life Limited (Member No. 36010244). 5. A Declaration that the Plaintiff will be justified in distributing the whole of the deceased’s estate and such moneys as are received pursuant to Orders 3 and 4 herein to the Fourth Defendant. 6. An Order that there be paid out to the Plaintiff from the funds held by the Supreme Court of New South Wales the one-half share of the proceeds of sale of the realty (together with interest thereon) as declared in Order 3 herein. 7 An Order that there be paid out to the First Defendant the other one-half of the proceeds of sale of the realty (together with interest thereon) as noted in proceedings No. 4935 of 2002. 8. An Order that the Plaintiff’s costs on the indemnity basis of these proceedings and of obtaining letters of administration in respect of the estate of the deceased be paid out of the estate of the deceased and the moneys received by the Plaintiff pursuant to Orders 3 and 4 herein. 9. An Order that the costs of the Fourth Defendant/Cross Claimant be paid on an indemnity basis out of the estate of the deceased and the moneys received pursuant to Orders 3 and 4 herein. 10. Liberty to apply with regard to the collection and payment of the assets referred to in Orders 3 and 4 herein.

CATCHWORDS:	WILLS, PROBATE AND ADMINISTRATION: Forfeiture under public policy rule – principal beneficiary killing testator – acquittal in criminal proceedings on grounds of mental illness – scope and operation of Act – meaning of “offender” and “unlawful killing” - WILLS, PROBATE AND ADMINISTRATION: application under s 11 of the Forfeiture Act 1995 (NSW) – operation of Part 3 – conduct of offender – conduct of deceased – effect of the application of the rule on the offender or any other person. - EVIDENCE: Admissibility – acquittal in criminal proceedings on grounds of mental illness – admissibility in other proceedings to prove fact in issue – Evidence Act 1995 (NSW), ss 91 and 178.
LEGISLATION CITED:	Evidence Act (NSW) 1995, ss 91 and s 178 Forfeiture Act 1995 (NSW), s 4; Part 3, ss 11 and 12
CASES CITED:	Browne v Dunn (1893) 6 R 67 Cleaver’s case (Cleaver v Mutual Reserve Fund Life Association) [1892] 1 QB 147 Helton v Allen (1940) 63 CLR 691 Hunter Area Health Service v Presland [2005] NSWCA 33 Kemperle v The Public Trustee, NSWSC, Powell J, 20 November 1985, unreported M’Naghten’s case (1843) 10 Cl and Fin 200; 8 ER 718 Permanent Trustee Co v Gillet (2004) 145 ACrimR 220 Rasmanis v Jurewitsch & Anor (1970) 70 SR 407 Re Plaister; Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547 The King v Porter (1933) 55 CLR 182 Troja v Troja (1994) 33 NSWLR 269
PARTIES:	Public Trustee of New South Wales - Plaintiff George Sidney Fitter - First Defendant Grant Fitter - Second Defendant Kylie Fitter - Third Defendant Ann Robb - Fourth Defendant
FILE NUMBER(S):	SC 3717 of 2004
COUNSEL:	L J Ellison SC and J Patey (barrister) - Plaintiff R D Wilson (barrister) - First Defendant N/A - Second and Third Defendants M W Young (barrister) - Fourth Defendant
SOLICITORS:	Roberts Mann - Plaintiff Legal Aid New South Wales - First Defendant N/A - Second Defendant Peter Baker - Third Defendant N/A - Fourth Defendant

LOWER COURT JURISDICTION:

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
equity Division

Lloyd AJ

Thursday, 24 November 2005

3717/04 IN THE ESTATE OF THE LATE FIONA ELLEN FITTER & THE FORFEITURE ACT 1995; PUBLIC TRUSTEE OF NEW SOUTH WALES v FITTER & (3) ORS

JUDGMENT

1 His Honour: On 16 October 2001, Fiona Ellen Fitter was killed when she was attacked with a knife by her husband, George Sidney Fitter and by her son, Grant Fitter, who was then aged about 18 years. The deceased’s daughter, Kylie Hope Fitter, who was then about 15 years old, took part in the attack but did not inflict any wounds upon her mother.

2 George Fitter, Grant Fitter and Kylie Fitter were each charged with murder. On 22 August 2002, Barr J, in a trial by judge alone, found each of them not guilty of murder by reason of mental illness. His Honour made an order that George Fitter and Grant Fitter be detained in the psychiatric ward at Long Bay Correctional Centre Hospital or at such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. His Honour also made an order that Kylie Fitter be detained at the Yasmar Juvenile Justice Centre or at such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. In practice that means that the Mental Health Review Tribunal can at any time, and must at least once every six months, review the case of each person and make a recommendation to the Minister for Health. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the persons or of any member of the public would not be seriously endangered by release.

3 The question for determination is whether the rule of public policy known as the forfeiture rule applies, or whether the plaintiff, as administrator of the intestate estate of the deceased is entitled to administer the estate without regard to the operation of that rule. It is, of course, proper for the plaintiff to seek a ruling from the Court.

4 The deceased is survived by her husband, George Fitter and her two children, Grant Fitter and Kylie Fitter (the first, second and third defendants respectively). The next-of-kin after them is the deceased’s only sibling, Ann Robb (the fourth defendant).

5 The deceased’s estate, reflecting the deceased’s interest in the net proceeds of the sale of the matrimonial home, have been paid into the Court pending the outcome of these proceeding. The total value of the estate as at the date of death was as follows:

(a)	One half of the net proceeds of the sale of the matrimonial home (which had been held on a joint tenancy)	$40,000.00
(b)	Money collected by the Public Trustee	$11,000.00
(c)	Proceeds of the deceased’s superannuation policy, not paid pending determination of these proceedings	$104,689.41

6 If the superannuation monies have earned interest the figures may be higher, but may also be subject to taxation. The matrimonial home was, however, held as a joint tenancy, so that unless some other order is made, George Fitter will take the whole of those proceeds of sale. The Public Trustee seeks an order that George Fitter holds his one half interest in the net proceeds of the sale of the matrimonial home on trust for the plaintiff as administrator of the estate. A similar order is sought relating to any benefits that may be received under the deceased’s superannuation policy.

7 On 4 August 2003, Windeyer J ordered that the costs of Ann Robb in proceedings No. 102352 of 2003 in the Probate Division be paid out of the estate on an indemnity basis. Those costs amount to about $18,000. The estate will also be liable for commissions to the Public Trustee, and for the costs of this hearing.

8 The common law forfeiture rule operates to prevent a person who feloniously kills another from benefiting financially from the victim’s estate: Troja v Troja (1994) 33 NSWLR 269 at 271 per Kirby P. The Forfeiture Act 1995 (NSW) leaves the common law rule intact but allows the Court to modify the effect of the rule if justice demands it. The Act does not, however, allow the rule to be ameliorated if the killing constitutes murder. By an amendment to the Act which commenced on 28 October 2005, where an offender has been found not guilty of murder by reason of mental illness, any interested person may apply to the Supreme Court for an order that the rule apply as if the offender had been found guilty of murder: s 11(1). The Court may make an order applying the forfeiture rule if it is satisfied that justice requires the rule to be applied: s 11(2). The fourth defendant, Ann Robb, applies by way of cross-claim for an order under s 11 that the forfeiture rule apply in this instance.

9 When the matter came before me, the Public Trustee as administrator of the estate was represented by Mr L J Ellison SC and Mr J Patey; George Fitter was represented by Mr R D Wilson; and Ann Robb was represented by Mr M W Young. There was no appearance by the second defendant, Grant Fitter. I am satisfied that he was duly served and notified of the hearing. Mr P Baker, solicitor, appeared for Kylie Fitter and entered a submitting appearance.

10 In Helton v Allen (1940) 63 CLR 691, the High Court held (at 710) that an acquittal at a criminal trial did not operate to conclude the issue of a person’s innocence or guilt. Moreover, the High Court held that an acquittal would not be admissible in subsequent civil proceedings as an evidentiary fact against the next-of-kin who sought to establish the application of the forfeiture rule in those proceedings (at 710). Moreover, s 91 of the Evidence Act 1995 (NSW) does not allow evidence of the decision in the criminal proceedings to be admitted in the present civil proceedings to prove a fact in issue in the former proceeding – that is, that the first three defendants were mentally ill at the relevant time: Permanent Trustee Co v Gillet (2004) 145 ACrimR 220. Accordingly, evidence was given before me of the facts and circumstances relating to the killing of Fiona Ellen Fitter. This evidence was given by George Fitter (who was also cross-examined), by two psychiatrists (one of whom was cross-examined), and by the tendering of the record of interview conducted with George Fitter, the statements of witnesses in the criminal proceedings, the transcript of evidence before Barr J, the post-mortem report and certificates under s 178 of the Evidence Act of the orders made by Barr J.

11 Section 178 of the Evidence Act has the effect that the certificates under that section are evidence of the fact stated therein, namely a finding in the criminal trial of “not guilty of murder of the deceased Fiona Ellen Fitter by reason of mental illness”: Permanent Trustee Co v Gillet at 38. It nevertheless remains open for a party in the present proceeding, in this case Ann Robb, to rely upon such evidence as may be available to her in the present proceedings to show that the person or persons causing death was guilty of the crime of murder: Helton v Allen at 710. That is, the findings of Barr J would not create any estoppel to prevent Ann Robb from asserting, in the present proceeding, that George Fitter was (and Grant Fitter and Kylie Fitter were) guilty of an unlawful killing, which is not excused by mental illness.

Evidence

George Fitter

12 George Fitter, the first defendant, is the husband of the deceased. George Fitter furnished an affidavit and gave oral evidence.

13 In his affidavit, George Fitter stated that he is 43 years old and a resident at the psychiatric hospital in Long Bay Gaol, Malabar. He said that he undergoes periodic review by the Mental Health Review Tribunal every six months but he is uncertain as to when he will be released either to another psychiatric unit or into the community.

14 George Fitter stated that he was acquitted of the murder of the deceased on the grounds of mental illness. He indicated that, at the time of the deceased’s death, he was unaware that she had a superannuation policy and only discovered that fact this year from his Legal Aid solicitor.

15 George Fitter stated that prior to the death of the deceased he received a worker’s compensation settlement of around $70,000 due to a back injury he suffered as a result of lifting a filing cabinet. He indicated that at the time he received the compensation payment he and the deceased owned a mortgaged property at Glossodia as joint tenants and the mortgage was up to date. He said that financial considerations were unrelated to the circumstances leading to the death of the deceased. He stated that he has spent all of his compensation money; and his current assets include a half interest in the net proceeds of sale of the former matrimonial home at Glossodia of $40,000, and savings of $15,000 from his fortnightly pension received as a resident of the psychiatric hospital. In examination in chief, George Fitter clarified that the pension he received fortnightly was $478.00.

16 George Fitter stated that he had a tertiary qualification in counselling, though he doubted whether he would be able to get a job after his release from the psychiatric hospital. He said that he intends, therefore, to use his current assets, further savings from his pension, and any money he may receive from the deceased’s estate to sustain him in the future and to provide for his two children when they are also released.

17 In cross-examination, George Fitter stated that he was now lucid and sane and had been so since early 2002. He said, however, that he started smoking cannabis at the age of 15 years, and from the age of 19 years his cannabis usage was daily, being chronic habitual. He denied that the deceased complained about his drug use, drunkenness, violence and abuse. He stated that the deceased only sought Apprehended Violence Orders (AVOs) after she was violent toward him and he only hit her in reaction. He also said that he was a trained martial artist in boxing and kung fu and could overpower the deceased in any sort of fight but if she had a weapon it would have been “risky”. George Fitter denied breaking into the deceased house and stealing furniture, though admitted that he did go to the house once after he had been living on the streets for five days but did not steal anything. He stated that he never threatened to kill the deceased. He claimed that up until he was admitted into “Pialla Unit” (the psychiatric ward of Nepean Hospital), he was sleeping with the deceased every weekend.

18 George Fitter said that he had obtained a bachelors degree in social sciences and a masters degree in counselling at the University of Western Sydney through which he learnt about anger management and that violence should only be used as a last resort. He also stated that he has been a Christian since 9 September 1984 and believes in God and respects the Ten Commandments, including the commandment that “thou shalt not commit murder”. He stated, however, that at the time he killed the deceased he was deluded; he was not in his right mind and could not morally choose between right and wrong. He stated further that at the time he killed his wife:

a. he intended to kill the deceased and he knew to a point it was the deceased he was killing but thought she had died the night before in a car accident;

b. he hated the deceased and believed that she deserved to die, as he believed she had sexually abused his son (as that is what his son told him the night before) and that she was a witch, evil and cut him and his children, drilled into his daughter’s head and drank the blood of babies;

c. he was upset, angry and sad due to the allegations that the deceased had sexually abused his son though these emotions were not the overriding factor for his actions;

d. he was not upset over the fact that the deceased had made allegations of abuse and stealing against him and taken out AVOs against him;

e. he knew that the deceased had been at work on night shift, and had been working as a nurse for many years, and also that he and the deceased owned a house as joint tenants, though was not motivated by the prospect of receiving the deceased’s superannuation or the house;

f. he was not thinking about the law and was only concerned about his son as the deceased had two knives and was jabbing them towards his kidneys; and

g. he was concerned that if he did not kill the deceased, Satan would take over the world and thought that killing her was the right thing to do.

19 In relation to the killing of the deceased, George Fitter said that Grant (his son) ran out of the house and the deceased ran across the road and continued running three houses up the road, but was still walking toward Grant with the kitchen knives. He later said, however, that Grant grabbed the two knives out of the kitchen drawer. He stated that he ran across the road and told Kylie (his daughter) to stay inside the house but she did not. He said that he kicked the deceased in the head and the deceased then came at him with a knife, which he kicked out of her hand. He claimed that he and Grant wrestled the deceased to the ground and he was on her left side and Grant was on her right side, when the deceased attempted to stab him in the back with the other knife and he took the knife from her and threw it away. He stated that he yelled at the deceased “You sexually assaulted him, didn’t you?” and the deceased said “Oh, my career”. He and Grant then killed the deceased by repeatedly by stabbing her.

20 George Fitter stated that he regretted not bringing his concerns about the deceased to the attention of the police as soon as Grant told him that he had been sexually abused by the deceased. He said that after killing the deceased, he read the Bible at the police station and was very upset. He claimed that approximately one month after the event when he came out of his delusion he started to believe that killing the deceased was a very wrong act. He acknowledged that it is for the law to determine what the punishment is for people who have behaved wrongly.

Dr Bruce Westmore

21 Dr Bruce Westmore is a forensic psychiatrist, who gave evidence in the criminal trial for the Crown. Dr Westmore examined George Fitter on 22 July 2002 and subsequently produced a forensic psychiatric report on the 23 July 2002, which is in evidence before me. In addition, Dr Westmore gave oral evidence.

22 In his report dated 23 July 2002, Dr Westmore stated that he informed George Fitter that the interview was being conducted at the request of the Office of the Director of Public Prosecutions and would not be confidential and was not for treatment purposes. Dr Westmore concluded that George Fitter had a past history of delusional thoughts involving his wife, daughter and son, and possibly auditory hallucinations. He noted that leading up to the onset of his disturbed mental state he was using cannabis regularly and heavily. He found that George Fitter may still retain some delusional religious thoughts and beliefs regarding his wife and her behaviour toward their son but his mental state was improving.

23 Dr Westmore determined that his differential diagnosis for George Fitter’s mental state disturbances at the time the deceased was killed include schizophrenia illness, a drug induced psychosis or a mood disorder with psychotic features. He also found that George Fitter qualified for the diagnosis of substance abuse (cannabis).

24 Dr Westmore stated that he believed that at the time of the killing of the deceased, George Fitter was “suffering from an acute psychotic episode, this is a disease of the mind which would have totally deprived him of the capacity to know that he ought not to do the act”.

25 During examination in chief and also in cross-examination, Dr Westmore stated that he had a clear recollection of George Fitter as it was a most unusual case.

26 In cross-examination Dr Westmore gave the following evidence:

a. There was general agreement between his report and the reports of Dr Olav Nielssen: all reports considered a schizophrenic illness and a differential diagnosis.

b. Dr Westmore was aware that George Fitter had been treated with antipsychotic medication but had stopped taking his medication prior to the killing of his wife. He stated that ceasing to take such medication may cause a psychosis that would otherwise exist at a low level or even be in remission, to cause a major psychotic episode. He further stated that in this case George Fitter’s cessation of taking his antipsychotic mediation coupled with his use of cannabis both significantly contributed to the psychotic episode during which he killed his wife.

c. Dr Westmore confirmed that as George Fitter had been a cannabis user, his differential diagnosis included a drug induced psychosis and substance abuse (cannabis), though the diagnosis also included a schizophrenic illness and a depressive illness. He clarified that a differential diagnosis includes all possible diagnosis alternatives, whereas a professional diagnosis is the diagnosis which is most probable and a definitive diagnosis is the diagnosis which is determined after a an extended period of time and a long history of treating a patient. Dr Westmore stated, therefore, that cannabis would only have played a principal role if George Fitter had a primary drug induced psychosis; however, if he had a predisposition to a schizophrenic illness then cannabis may not have had such a large role in causing the illness, though it may have induced or exacerbated his psychosis.

d. Dr Westmore confirmed that the main symptom of Geprge Fitter’s psychosis was a set of religious delusions and hallucinations focused on his wife and children. He said that unless acting on these delusions, George Fitter would have been capable of fulfilling his normal daily functions like anybody else. He said, however, at the time of the offence it was clear that George Fitter was acting purely on his delusional beliefs arising from his psychotic illness and on that basis had no capacity to determine right and wrong in a moral sense. Dr Westmore conceded that George Fitter may have had some understanding in a legal sense that his actions were wrong, but it was most unlikely that he had the capacity to consider his behaviour in a moral sense as his mind would have been too overwhelmed by psychotic thoughts. He said that George Fitter was delusion-driven to kill his wife and as such would have had irrational delusional emotions, including anger and fear, although it was fundamentally the delusional beliefs and not the emotions, which caused him to kill his wife.

e. Dr Westmore stated that George Fitter did not express remorse during his examination and if George Fitter had done so he would have noted it in his report.

27 Also in evidence are three reports of Dr Olav Neilssen, who gave psychiatric evidence for George Fitter in the criminal proceeding. Dr Neilssen was not cross-examined, but no point is taken under the rule in Browne v Dunn ((1893) 6 R 67)) about that. Dr Neilssen expressed a similar opinion in his report to those of Dr Westmore.

28 It is clear from the evidence of both George Fitter and Dr Westmore that George Fitter was suffering from mental illness at the time he killed his wife. When he killed the deceased, he was acting on the delusional beliefs that the deceased had sexually abused his son and that she was a witch, evil and cut him and his children, drilled into his daughter’s head and drank the blood of babies, arising from his psychotic illness. I find, therefore, that although George Fitter knew he was killing, knew how he was killing and knew why he was killing, he was labouring under such a defect of reason from mental illness as to be incapable of appreciating the wrongness of his act: M’Naghten’s case (1843) 10 Cl and Fin 200 at 210; 8 ER 718 at 722; The King v Porter (1933) 55 CLR 182 at 189.

29 In relation to the two children of the deceased, Grant Fitter and Kylie Fitter, there is no evidence before me as to their mental condition at the relevant time and thus no evidence to conclude that the forfeiture rule is excluded because of mental illness. This is because every person is presumed to be of sufficient soundness of mind to be criminally responsible for his or her other actions until the contrary is shown: The King v Porter at 183.

The forfeiture rule

30 In Helton v Allen the High Court identified (at 709) the first clear formulation of the rule in Cleaver’s case (Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147):

It is placed upon the principle of public policy, and it was said 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.

31 In Rasmanis v Jurewitsch & Anor (1970) 70 SR 407 Jacobs JA (Wallace P and Mason JA concurring) said (at 412):

I think that the primary rule to be enforced is that the felon must not be allowed to retain any benefit flowing to him from the slaying and that he is required to hold any such benefit which flows at law upon trust for someone other than himself.

32 In Troja v Troja (1994) 33 NSWLR 269, Kirby P described the forfeiture rule thus (at 271):

By that rule, a person who feloniously kills another is ordinarily denied enjoyment of the property which would otherwise have been acquired as a result of that death.

33 In the same case, Mahoney JA thought that the principle was plain (at 294-295):

It is that the law will not enforce “rights directly resulting to a person asserting them from the crime of that person”. This is the formulation adopted by Dixon, Evatt and McTiernan JJ in Helton v Allen (at 709). Their Honours (at 710) referred to “the principle that by committing a crime no man could obtain a lawful benefit to himself”.

34 Meagher JA described the rule in two ways (at 299):

That 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.
…
The law as laid down in Cleaver’s case is that all felonious killings are contrary to the public policy and hence, one would assume, unconscionable.

35 In Kemperle v The Public Trustee (NSWSC, 20 November 1985, unreported) Powell J said:

It is, however, to be observed that it is only in the case of felonious killing when the rule is called into operation;…

36 It follows that, until the decision of the Court of Appeal earlier this year in Hunter Area Health Service v Presland [2005] NSWCA 33, the rule applied only to conduct which amounted to criminal conduct. I need only to refer to the various references in the cases to “the crime”, “feloniously kills”, “felonious killings” and “the felon”. If the killing was not criminal, then it seems that the rule did not apply.

37 The facts in Presland do not raise for consideration of the forfeiture rule, but the reasoning is said to be relevant. Mr Presland was negligently released from a psychiatric hospital. Six hours after he was released he killed the fiancée of his brother, Ms Laws. Mr Presland was acquitted of the murder of Ms Laws on the ground of mental illness and was detained in a psychiatric hospital until released pursuant to the Mental Health (Criminal Procedure) Act 1990. The issues were whether there was a breach of the duty of care owned to patients of a psychiatric hospital and whether the killing of Ms Laws disentitled Mr Presland to recover damages under the principle of ex turpi causa non actio. In the course of their reasons, the majority of the Court of Appeal described the killing as unlawful but not criminal. Sheller JA said (at par [292]):

Although he was acquitted on grounds of mental illness, his act was and remained an unlawful act. His was not a justifiable homicide but an unlawful homicide for which he was not criminally responsible.

38 Santow JA described (at [312]) the killing of another whilst insane as itself an unlawful act but without criminal consequence. His Honour continued:

As H L A Hart pointed out over 40 years ago insanity is not a justification for an unlawful act of homicide but rather an excuse. As an excuse, it reflects the fundamental moral principle “that a person is not to be blamed for what he has done if he could not help doing it”. H L A Hart, “Punishment and the Elimination of Responsibility”, (Athlone Press, 1962), p 20.

39 Santow JA also said (at par [315]):

While here the respondent was, by reason of insanity, judged incapable of acting with the necessary intent, his act of homicide was an unlawful act, hardly to be described as constituting reasonable action.

40 Does the decision of the majority in Presland bring a person in the position of George Fitter within the forfeiture rule? I do not think so. It is directly contrary to the judgment of Harvey CJ in Eq in Re Plaister; Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547, which is a case directly on point. In that case Harvey CJ in Eq said (at 558):

I find as a fact that Mr Plaster was insane at the time he killed his wife and daughter, and that therefore, there is no bar in law to his succeeding under their respective intestacies .

41 Moreover, as Santow JA observed from the writing of H L A Hart, a person is not to be blamed for what he has done if he could not help doing it. George Fitter has not committed a crime. Apart from the operation of the Forfeiture Act 1995, the forfeiture rule does not apply to him.

The Forfeiture Act 1995 (NSW)

42 The Forfeiture Act 1995 was introduced to ameliorate the strict effect of the forfeiture rule when that rule applies. The Act applies to “an unlawful killing” whether occurring within or outside the State: s 4(1). The Act does not apply, and hence the forfeiture rule cannot be ameliorated, where the unlawful killing constitutes murder: s 4(2).

43 The “forfeiture rule” is defined in the Act as “the unwritten rule of public policy that in certain circumstances precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing”: s 3. An “offender” is defined as “a person who had unlawfully killed another person”: s 3. Section 3 of the Act defines “unlawful killing” as meaning:

(a) any homicide committed in the State that is an offence, and
(b) any homicide that would be an offence if committed within the State,
and includes aiding, abetting, counselling or procuring such a homicide and unlawfully aiding, abetting, counselling or procuring a suicide.

44 It is submitted on behalf of the Public Trustee and on behalf of Ann Robb that, on the authority of Presland, George Fitter in the present case is an “offender” within the meaning of the Act, who has committed an “unlawful killing” within the meaning of the Act, and hence the forfeiture rule as defined in Act applies. I cannot agree with the submission. Presland may be an authority for the proposition that George Fitter is an “offender” having unlawfully killed another person as defined in the Act. But there has not been an “unlawful killing” as defined in the Act, because there has been no offence committed, as required by par (a) of the definition.

45 On 28 October 2005, however, the Act was amended by the addition of Part 3 (ss 10-14). Section 10 of the Act defines “offender” for the purposes of Part 3 as “a person who has killed another person and been found not guilty of murder by reason of mental illness”. Section 11(1) enables any interested person to make an application to the Supreme Court for an order that the forfeiture rule apply as if such an offender had been found guilty of murder. The Court may then make an order applying the forfeiture rule if it is satisfied that justice requires the rule to be applied: s 11(2). In determining whether justice requires the rule to be applied the Court is to have regard to the following matters: s 11(3):

(a) the conduct of the offender,
(b) the conduct of the deceased person,
(c) the effect of the application of the rule on the offender or any other person,
(d) such other matters as to the Court appear material.

46 Ann Robb makes such an application by her cross-claim; that is, for an order that the forfeiture rule apply: s 11(1). The time within which such an application must be made is within six months from the day on which the offender was found not guilty of murder, unless the Court gives leave for a later application to be made: s 12. In view of the fact that the amendment to the Act was only made on 28 October 2005, and in the absence of any prejudice caused by the late application, I indicated that leave would be granted to Ann Robb to make her application out of time.

47 It is submitted on behalf of both the Public Trustee and Ann Robb that Part 3 of the Act was intended to apply to persons such as George Fitter. Reliance was placed on the second reading speech in the Legislative Council (inter alia) on the Confiscation of Proceeds of Crime Amendment Bill, to which the amendment to the Forfeiture Act 1995 is a schedule. The reason for the amendments were relevantly described by the Minister as follows (inter alia):

These amendments will:
…

· Prevent mentally ill murderers from profiting from their crime by applying the forfeiture rule.

48 If one were to have regard to the second reading speech then it would seem that the amendments do not apply to someone such as George Fitter. Firstly, he is not a “murderer” and secondly, he has committed no “crime”. That is, the second reading speech would suggest that the amendments are not intended to apply to a person who has been found not guilty of murder on the ground of mental illness and who has thus committed no crime. The second reading speech does not confirm the meaning conveyed by the words of the Act.

49 Notwithstanding the words of the second reading speech, I am, however, bound by the clear and unambiguous words of the Act itself. That is, although the second reading speech does not confirm the meaning of the Act, and may even be contrary to that plain meaning, the definition of “offender” in s 10 and the power to make an application under s 11 if “the person has been found not guilty by reason of mental illness” show that the amendment applies to a person such as George Fitter in the present case.

Should the discretion of the Court under Part 3 of the Forfeiture Act 1995 be exercised?

50 I have set out above in par [45] the considerations to which the Court must have regard in deciding whether justice requires that the forfeiture rule be applied under s 11 of the Forfeiture Act. Those considerations include the effect of the application of the rule on the offender or any other person: s 11(3)(c). One such person is Ann Robb.

Gwendoline Ann Robb

51 Gwendoline Ann Robb is the fourth defendant and the older sister of the deceased. She furnished an affidavit and also gave oral evidence in support of her cross claim seeking an order under s 11 of the Forfeiture Act.

52 In her affidavit, Ann Robb gave the following evidence:

a. She and her father cared for the deceased until she was 6 years old whilst her mother was ill. She moved to live with her grandmother in Lidcombe when she was 16 years old, and shortly after the rest of the family moved to Westmead.

b. In 1975, she married and moved to Macquarie Fields where she lived until 1978 when she moved to Townsville. Whilst in Sydney, she had frequent contact with the deceased. In particular, the deceased came to her house in Macquarie Fields every weekend and all school holidays.

c. When the deceased was about 14 years old she came to live with her in Townsville for approximately 2 years and attended Heatley High School. The deceased began to present with some behaviour problems and in about August 1981 returned to live with her father in Sydney and soon after dropped out of school, left home and met George Fitter. In the 1990s the deceased qualified as a nurse.

d. From approximately early 1982, she spoke with the deceased on the phone and also in Sydney. On several occasions, the deceased complained of George Fitter’s violence and abuse, and drunkenness and drug use.

e. In 1991 she ended her marriage and in late 1992 she met Peter Robb and they married in 1994 and have lived on the Atherton Tablelands since then.

f. On 29 February 2000, their father died and she spoke to the deceased about his death. They spoke frequently and the deceased said that her home life in Glossodia was “very bad” and she was still being abused.

g. Later in 2000, George Fitter was removed from the family and an Apprehended Violence Order (AVO) was issued against him.

h. In November 2000, the deceased told her that that George Fitter had become much more violent and intoxicated and she had made him leave the house and commenced proceedings for a further AVO. The deceased said that George Fitter had received a worker’s compensation payout and he and Grant (the deceased’s son) had blown it on drugs and alcohol.

i. In 2001, the deceased told her that George Fitter was stalking her and Grant was seeing him in breach of the AVOs, and that he was breaking into the house and stealing things and she was frightened for her life. The deceased did not tell her anything worrying about Kylie (the deceased’s daughter). Kylie came to live with her in Far North Queensland for about a month in anticipation of the deceased also moving up. The deceased changed her mind without explanation and asked Fiona to be sent back to Glossodia. She was very distressed and upset about the deceased’s predicament and feared for her life and often asked her to move up to live with her.

j. On 16 October 2001, she received a phone call from the police informing her of the deceased’s murder and that three suspects were being questioned. She went to Sydney immediately to assist the police. She went to the deceased’s house and found it in a state of extreme disarray. She also went to the morgue to see the deceased and observed her body was badly damaged and severely bruised. She attended to the deceased’s funeral arrangements and has kept her ashes. From the time of the deceased’s murder until August 2003, she did a lot of work on her behalf, including cleaning the house so that the mortgagee could sell it in August 2002.

k. Since shortly after the deceased’s murder, she has been regularly involved in the Homicide Victims Support Group.

l. In February 2003, she filed proceedings to become the administrator of the deceased’s estate but in August 2003 the Court ordered that the Public Trustee be administrator and she was reimbursed for her costs, including those of the funeral, from the estate. At the time, she was advised that the forfeiture rule may not apply as the defendants all avoided convictions on the ground of insanity. She could not bear the thought of the deceased’s killers receiving the estate.

m. She made representations to Mr Paul Bodisco (an advisor of former Premier, Mr Bob Carr) and Alistair McConachie (advisor to the Attorney-General, Mr Bob Debus) as well as Mr Debus.

n. She is aware that during the criminal proceedings against the defendants, all of the defendants were represented by Legal Aid. In addition, the first and third defendant’s are being represented by Legal Aid to defend the current proceedings in relation to the forfeiture rule. She understands that the defendants are not liable to repay the costs of any of the Legal Aid.

o. She has been paid $50,000 Victims Injury Compensation. However, she is aware that the defendants do not have to pay Victims Compensation, as they were not convicted.

p. She is aware that there is no more than a few thousand dollars in the estate after costs and outlays, although the superannuation fund trustee may pay the estate the superannuation accrued by the deceased. She understands that the superannuation trustee does not have to do this but will probably do so if the Court considers that justice requires the forfeiture rule to apply.

q. She feels strongly that the forfeiture rule should apply as it would be wrong for the defendants to receive anything from the estate of person they killed, especially given the circumstances of the killing. She is not bringing proceedings for the application for the forfeiture rule to receive inheritance from the deceased, and if she receives money she will make a significant contribution to the Homicide Victim Support Groups in New South Wales and Queensland.

53 In cross-examination, Ann Robb said that she was one of the driving forces behind the introduction of, and assent to, the amendments to the Forfeiture Act. She denied, however, that she was financially motivated to bring the cross-claim under to the new amendments and confirmed that she could not bear the thought of her sister’s killers getting the money as well. She again stated that, if the claim was successful, she intended to give a substantial amount the inheritance to the Homicide Victim Support Groups in New South Wales and Queensland after paying her legal fees. She indicated that she had also commenced proceedings against “Pialla”, the mental institution from which George Fitter discharged himself prior to the killing of the deceased and those proceedings had not yet been finalised.

54 Ann Robb stated that although the first three defendants were found not guilty by way of mental illness, she believed that this did not constitute “a straight acquittal”.

Other considerations

55 In addition to the effect of the application of the rule on Ann Robb, ss 11(3)(a) and (b) of the Forfeiture Act require consideration of conduct of George Fitter and the conduct of the deceased person.

56 As to the conduct of George Fitter, I have found that although he knew he was killing he was, to use the words of Dr Westmore, “suffering from … disease of the mind which would have totally deprived him of the capacity to know that he ought not do the act”. It is, however, his voluntary conduct before the killing which is also relevant. I refer, in particular, to discharging himself from the psychiatric facility known as “Pialla”; going to the deceased’s home on the day of the killing notwithstanding that there was an AVO against him; his substance abuse (cannabis); the fact that he stopped taking his prescribed medication; and his absence of any expression of contrition or remorse knowing what he had done. As Dr Westmore explained, George Fitter’s cessation of taking his antipsychotic medication coupled with his use of cannabis both significantly contributed to the psychotic episode during which he killed his wife.

57 All of these factors – his discharge of himself from “Pialla”, his disobedience of the AVOs in going to the deceased home, his cessation of taking his medication and his cannabis use – amount to conduct of a voluntary nature which appear in turn to have either contributed to or exacerbated his psychosis. In saying this, I do not ignore the opinion of Dr Westmore that the main symptoms of the psychosis were a set of religious delusions and hallucinations. But these were the symptoms and not factors which were an element in the cause of the psychosis. I find, therefore, that George Fitter’s psychotic illness was at least contributed to or exacerbated by his own voluntary conduct. This conduct, to which I have referred above, suggests that justice requires the forfeiture rule to be applied.

58 Another factor to be considered is the conduct of the deceased person: s 11(3)(b). There is nothing before me to suggest that the deceased was anything but a victim. She must have had a sound reason to obtain an AVO against George Fitter, and the court which issued the AVO must have been satisfied that grounds existed for making such an order. The deceased did not go to George Fitter; but rather he went to the deceased’s home in breach of the AVO order. The overall impression I have is that the deceased may have been trying to defend herself. The absence of any blameworthy conduct on the part of the deceased also suggests that justice requires the forfeiture rule should be applied.

59 The Court may take into account such other matters as that appear material. George Fitter says that he intends to use the money from the estate, together with his current assets and savings from his pension to sustain himself in the future and to provide for his two children. There is nothing, however, to compel him to do so. His living expenses and his medical treatment costs are presently being met by the State, as are those of his children. If and when he is released into the community he will have at least some assets of his own, without recourse to the estate. Those assets will include his one-half interest in the net proceeds of sale of the former matrimonial home.

60 There is no evidence before me to show that the children, Grant Fitter and Kylie Fitter, were suffering from a mental illness at the time of the attack upon their mother. Accordingly, the forfeiture rule must apply automatically to them.

61 After taking into account the considerations canvassed above, I am satisfied that justice requires the forfeiture rule to be applied to George Fitter.

62 In addition to an order that the forfeiture rule apply, both the Public Trustee and Ann Robb seek a declaration that George Fitter hold a one-half interest in the net proceeds of sale of the former matrimonial home on trust for the Public Trustee as administrator of the estate of the deceased and a similar declaration is sought in relation to any benefits received by George Fitter under the deceased’s superannuation policy.

63 Support exists for such relief in Rasmanis v Jurewitsch (1970) 70 SR (NSW) 407. In that case land was held in fee simple as a joint tenancy and one of the joint tenants was convicted of the manslaughter of the other. Although the principle of survivorship resulted in the felon being entitled to be as registered as the sole proprietor, it was held that equity will intervene to require that the interest thus taken be held on a constructive trust to ensure that the interest be held as if there had, on the slaying, been no enlargement of the interest of the felon. That is, equity will intervene on the grounds of public policy in order to prevent the felon from reaping a benefit from his slaying. Jacob JA (Wallace P and Mason JA concurring) said (at 412):

I think that the primary rule to be enforced is that the felon must not be allowed to retain any benefit flowing to him from the slaying and that he is required to hold any such benefit which flows at law upon trust for someone other than himself. This someone may be either the estate of the victim or the third joint tenant. If one adopts the analogy of the two-man joint tenancy, then one would choose the estate of the victim as the beneficiary.
…
It is necessary to ensure that the benefit of this enlargement does not accrue to the felon in equity even though it has accrued at law. This may be done by enforcing a constructive trust.

64 In the present case it is similarly appropriate that equity intervene on the ground of public policy to hold that the enlargement of interest in the net proceeds of sale of the former matrimonial home on the death of Fiona Fitter should now result back to her estate; and there will be a declaration that George Fitter a surviving joint tenant of the legal estate holds a one- half interest on trust for the Public Trustee as administrator of the estate. There will be a similar result in relation to the whole of any benefits that either George Fitter or his children may received under the deceased’s superannuation policy.

65 The Public Trustee seeks its costs of the proceedings, to be assessed on an indemnity basis. As I have noted, it was appropriate for Public Trustee as administrator of the estate to obtain a ruling from the Court. The costs order it seeks will be made. In deciding in proceedings No. 102352 of 2003, Windeyer J held that Ann Robb was not the most appropriate person to administer the estate, but nevertheless ordered that her costs be paid out of the estate on an indemnity basis. It also appropriate that Ann Robb’s costs of these proceedings should be paid out of the estate on an indemnity basis.

Orders

66 The Court makes the following orders and declarations:

(1) The time by which the cross-claim by the Fourth Defendant is to be filed is extended to 9 November 2005.

(2) An Order that pursuant to s 11 of the Forfeiture Act 1995 the forfeiture rule shall apply with respect to the First, Second and Third Defendants as if the First, Second and Third Defendants had been found guilty of the murder of Fiona Ellen Fitter.

(3) An Order that the First Defendant hold a one-half interest in the net proceeds of sale of Folio Identifier 235/214758 and known as No. 48 Grand Parade, Glossodia on trust for the Plaintiff as administrator of the estate of the deceased.

(4) An Order that the First, Second and Third Defendants hold on trust for the Plaintiff as administrator of the estate of the deceased such benefits as they may receive under the deceased’s superannuation policy with ING Life Limited (Member No. 36010244).

(5) A Declaration that the Plaintiff will be justified in distributing the whole of the deceased’s estate and such moneys as are received pursuant to Orders 3 and 4 herein to the Fourth Defendant.

(6) An Order that there be paid out to the Plaintiff from the funds held by the Supreme Court of New South Wales the one-half share of the proceeds of sale of the realty (together with interest thereon) as declared in Order 3 herein.

(7) An Order that there be paid out to the First Defendant the other one-half of the proceeds of sale of the realty (together with interest thereon) as noted in proceedings No. 4935 of 2002.

(8) An Order that the Plaintiff’s costs on the indemnity basis of these proceedings and of obtaining letters of administration in respect of the estate of the deceased be paid out of the estate of the deceased and the moneys received by the Plaintiff pursuant to Orders 3 and 4 herein.

(9) An Order that the costs of the Fourth Defendant/Cross Claimant be paid on an indemnity basis out of the estate of the deceased and the moneys received pursuant to Orders 3 and 4 herein.

(10) Liberty to apply with regard to the collection and payment of the assets referred to in Orders 3 and 4 herein.

I hereby certify that the preceding 66 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 24 November 2005


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