Re Estate of TCW (a pseudonym)
[2024] VSC 569
•16 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2024 00799
IN THE MATTER of an application under Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015
-and-
IN THE MATTER of the Will and Estate of TCW (a pseudonym, deceased)
BETWEEN:
| TNC (a pseudonym) as Executor and Trustee of the Will and Estate of TCW (a pseudonym, deceased) | Plaintiff |
| v | |
| OMP (a pseudonym) by their Administrator STATE TRUSTEES LIMITED (ACN 064 593 148) | Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 September 2024 |
DATE OF JUDGMENT: | 16 September 2024 |
CASE MAY BE CITED AS: | Re Estate of TCW (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 569 |
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WILLS AND ESTATES – Application for judicial advice – Forfeiture rule – Whether rule applied to prevent the defendant taking benefit under will - Where defendant convicted of the offence of manslaughter of the deceased – Criminal culpability – Forfeiture rule applies - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Evidence Act 2008 ss 91, 92 - Supreme Court (General Civil Procedure) Rules 2015 r 54.02 - Hollington v F Hewthorn & Co Ltd [1943] KB 587 - Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 - Edwards v State Trustees (2016) 54 VR 1 - Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission (2022) 295 FCR 106 - Osborne v Butler [2024] VSCA 6.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Wells | Madgwicks Lawyers |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction
In this proceeding the plaintiff, who is the executor and trustee of the deceased estate of TCW, seeks judicial advice under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 as to whether the defendant has forfeited their rights under the will of the deceased to receive any distribution from the deceased’s estate. The application concerns the ‘forfeiture rule’; the principle that no person can obtain or enforce any rights resulting to them by their own crime. It arises for consideration in circumstances where the deceased, by their will dated 15 March 2012 (the Will),[1] bequeathed their residuary estate to the defendant and another person (‘EDL’) in equal shares, but where the defendant has been found to have committed the offence of manslaughter of the deceased.
[1]In relation to which probate was granted on 25 February 2020.
This finding was made by Coghlan JA on 18 January 2021 in a Special Hearing conducted under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act). His Honour’s reasons for decision are contained a judgment which is restricted from publication (the Special Hearing reasons).[2] There also remains in place in that proceeding a suppression order prohibiting the publication of any information that might enable the defendant to be identified. As a consequence, these reasons for judgment include a confidential annexure not for publication. The remaining (public) part of these reasons is therefore necessarily truncated.
[2]DPP v RT (Special Hearing) [2021] VSC 4.
For the reasons which follow, on 5 September 2024, I made orders answering the application for judicial advice as follows:
(a) Having regard to the circumstances giving rise to the death of the deceased:
(i) has the defendant forfeited their rights pursuant to the Will of the deceased, to receive any distribution from the estate of the deceased?
Yes.
(ii) To whom should the estate of the deceased be distributed?
EDL (a pseudonym).
Defendant’s circumstances
State Trustees Limited (State Trustees) was appointed administrator for the defendant on 15 December 2022.[3] The order made by the Victorian Civil and Administrative Tribunal (VCAT) gives State Trustees power to make decisions about all financial matters in relation to the defendant, and records that the defendant does not have capacity to make decisions about financial matters due to a disability.
[3]State Trustees continues to manage the defendant’s affairs following a reassessment by VCAT of the above order on 27 May 2024.
An affidavit was filed in this proceeding by Kate Merida, a senior consultant (legal support) employed by State Trustees, who deposed that she was authorised to make the affidavit on behalf of the defendant and State Trustees. Ms Merida referred to a number of matters pertaining to the defendant’s circumstances including that they have been diagnosed with a number of medical conditions including: a mild intellectual disability; autistic spectrum disorder or schizoid personality disorder; schizophrenia; and compulsive sexual behaviour disorder.
In correspondence to the Court dated 28 June 2024, the legal representative of State Trustees informed the Court that State Trustees did not intend to appear at the hearing of this application and that, having had the opportunity to properly review the matter and to seek counsel’s advice, it did not wish to file any submissions in response to the application.
The Special Hearing
Following the Special Hearing, on 16 March 2022 Coghlan JA made the following orders after a narration of other matters:
OTHER MATTERS:
1. On 5 November 2020, a fresh indictment … was filed with the Court containing three charges:
a) Charge 1 – Rape;
b) Charge 2 – Murder pursuant to s3A of the Crimes Act 1958 (Vic); and
c) Charge 3 - Manslaughter
2. On 23 November 2020, pursuant to s 94 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’), his Honour Justice Coghlan:
a) found that [the defendant] was not fit to stand trial, and, was unlikely to become fit within the next 12 months; and
b) ordered that the Special Hearing be determined by a judge alone pursuant to s 101 of the Act.
3. On 25 November 2020 a Special Hearing was commenced before his Honour Justice Coghlan and concluded on 7 December 2020.
4. On 18 January 2021 his Honour Justice Coghlan found [the defendant] not guilty of Charges 1 (rape) and 2 (murder) and found that [the defendant] had committed Charge 3 (manslaughter).
…
THE COURT ORDERS:
1. That pursuant to s 18(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”), [the defendant] is liable for Supervision under Part 5 of the Act.
2. That pursuant to s 26(2) of the Act, [the defendant] be subject to a Custodial Supervision Order.
3. …
4. Pursuant to s 28(1) of the Act, the nominal term of the custodial supervision order is 20 years.
5. Pursuant to s 28(4)-(5) the nominal term is taken to have commenced on 30 January 2018.
6. Pursuant to s 27(2) of the Act, this matter is to return to this Court for review within 12 months, by 16 March 2023.
…
The forfeiture rule
The principle which underpins the forfeiture rule is that, ‘by committing a crime no man could obtain a lawful benefit to himself’.[4] It follows from this principle that, if a right or entitlement accrues as a result of someone’s death, whether pursuant to a testamentary instrument or the laws of intestacy, and the death was caused by their own ‘felonious killing’ of the deceased, then the perpetrator forfeits any entitlements from the deceased’s estate that might otherwise have accrued to them.[5] However, if a person is either acquitted of the charge of murder on the grounds of ‘insanity’ or, where no trial is able to be conducted but the evidence establishes to the civil standard that the perpetrator was ‘insane’, then it is settled that the forfeiture rule does not apply.[6]
[4]Helton v Allen (1940) 63 CLR 691, 710.
[5]Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 147; Troja v Troja (1994) 33 NSWLR 269, 271.
[6]In Re Houghton [1915] 2 Ch 173; In Re Pitts; Cox v Kilsby [1931] 1 Ch 546; In re Plaister, Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547; Public Trustee (NSW) v Fitter [2005] NSWSC 1188.
In cases of manslaughter, there have been conflicting decisions in various jurisdictions about whether the forfeiture rule applies regardless of the particular circumstances giving rise to the offence,[7] or whether its application is not automatic and instead gives rise to a discretion as to whether or not it should apply in the facts of any particular case.[8] In Victoria, these controversies have been settled by the judgment of the Court of Appeal in Edwards v State Trustees Ltd[9] in which a wife pleaded guilty to and was convicted on one count of ‘defensive homicide’ of her husband, an offence analogous to manslaughter. The trial judge determined that there was no discretion in relation to determining whether the forfeiture rule applied and accordingly ordered that the wife forfeited any entitlements in her husband’s estate.[10] On appeal, the majority (Whelan JA, with whom Kyrou JA agreed) determined that, because the wife had not been found to have murdered her husband, there was a discretion as to whether or not the forfeiture rule should be applied. In the circumstances of the case, they determined that the rule should be applied with the result that the wife forfeited her entitlements in her husband’s estate. Santamaria JA held that there was no discretion and that the rule must be applied.
[7]In the Estate of Hall [1914] P 1; Re Dellows Will Trusts [1964] 1 All ER 771; Gray v Barr [1971] 2 Q.B. 554; Re Giles [1972] 1 Ch 544; In the Estate of Soukup (1997) A Crim R 103.
[8]In Re H (1990) 1 FLR 441; Re Keitley [1992] 1 VR 583.
[9](2016) 54 VR 1 (‘Edwards’) .
[10][2014] VSC 392.
After an extensive analysis of the authorities, Whelan JA concluded that it was the ‘nature of the particular crime’ which determines the application of the forfeiture rule.[11] He continued:[12]
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? …
[11]Edwards (n 9), [65].
[12]Ibid [66].
After reviewing the matters which he considered to be relevant to the assessment of criminal culpability in the circumstances of the case, Whelan JA summarised his conclusions as follows:[13]
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.
[13]Ibid [84].
Assessment of defendant’s criminal culpability
I was asked to assess the defendant’s criminal culpability by reference to the contents of the Special Hearing reasons. This raises a threshold question as to the extent to which I may have regard to those reasons.
The admissibility of the Special Hearing reasons is governed by ss 91 and 92 of the Evidence Act 2008 which provide as follows:
91 Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Note
Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.
92 Exceptions
(1)Section 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove—
(a) the death, or date of death, of a person; or
(b) the due execution of a testamentary document.
(2)In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction—
(a)in respect of which a review or appeal (however described) has been instituted but not finally determined; or
(b) that has been quashed or set aside; or
(c) in respect of which a pardon has been given.
(3)The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.
The Court of Appeal recently considered the operation of these provisions in Osborne v Butler.[14] The Court explained that s 91 restated the common law rule reflected in the English Court of Appeal decision in Hollington v F Hewthorn & Co Ltd,[15] that evidence of a prior conviction was admissible to prove the fact of that conviction, but not to prove the facts upon which the conviction was based.[16] Section 92(2) then provides an exception in the case of evidence of prior convictions in subsequent civil proceedings, with evidence of a prior conviction being admissible ‘to prove the existence of a fact that was in issue in the criminal proceeding’.[17] However, the Court noted that the exceptions in s 92(2) were subject to a limitation in that it does not extend to evidence of other decisions or findings in the criminal proceeding including the sentence, sentencing remarks or evidence given in the criminal proceeding.[18] Importantly for present purposes, the Court stated that under the exception in s 92(2):[19]
It is the conviction itself which may be admitted, and treated as evidence of the existence of facts in issue in the criminal proceeding, namely the elements of the offence charged.
[14][2024] VSCA 6 (‘Osborne v Butler’).
[15][1943] KB 587.
[16]Osborne v Butler (n 14), [24], [30].
[17]Ibid [31].
[18]Ibid [34].
[19]Ibid.
This observation has potentially significant implications for the evidentiary foundation of the plaintiff’s case: the nature of the assessment of the defendant’s criminal culpability required by Edwards is not limited to the elements of the offence of manslaughter, but instead calls for an examination of the broader circumstances attending the offending so as to permit an evaluation of the defendant’s criminal culpability. The plaintiff seeks to put those matters before the Court by relying upon the contents of the Special Hearing reasons. Such reliance is, however, beyond the exception in s 92(2), as reliance is sought to be placed on those reasons, not to establish the elements of the offence of manslaughter, but the circumstances and context of the offence.
However, the exclusionary rule in s 91 must be taken to operate only when objection is taken. This reflects the principle recognised by the Court of Appeal of New South Wales (with which the Full Court of the Federal Court has agreed)[20] that: [21]
… in the ordinary course, the words “not admissible” in the Evidence Act … means “not admissible over objection”, in accordance with the practice of the courts of which the parliament was aware when it passed the Evidence Act.
[20]Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission (2022) 295 FCR 106, [30], [31].
[21]Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [149].
Although this approach has been criticised[22] and the force of such criticism acknowledged by the Court of Appeal of Victoria,[23] the Court of Appeal expressly found it unnecessary to state a concluded view on the matter.[24] In those circumstances, given the High Court’s direction to trial judges not to depart from decisions of intermediate appellate courts in other jurisdictions on the interpretation of Commonwealth legislation or uniform national legislation unless convinced that the interpretation is plainly wrong,[25] it is incumbent upon me to follow the abovementioned appellate court decisions as I do not consider them to be plainly wrong.
[22]See Stephen Odgers SC, Uniform Evidence Law (Thomson Reuters, 19th ed, 2024).
[23]Velkoski v R (2014) 45 VR 680, [190]-[200].
[24]Ibid [200].
[25]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135].
The defendant did not appear in this proceeding without legal representation. Further, the legal representative of his administrator has elected not to appear or to make any submissions in the proceeding having noted, after the plaintiff’s affidavit material was filed, that they had properly reviewed the matter and sought counsel’s advice. Accordingly, I will proceed to assess the defendant’s criminal culpability by reference to matters including those referred to in the Special Hearing reasons.
For the reasons set out in the Confidential Annexure to these reasons, the criminal culpability of the defendant requires that they should not take a benefit from the deceased’s death which they caused. In the circumstances, the forfeiture rule applies with the consequence of preventing the defendant from inheriting any part of the deceased’s estate. Given the terms of clause 5 of the Will, it must follow that the whole of the deceased’s estate is to be distributed to EDL.
Confidential Annexure
[Redacted].
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