Re Kumar

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2013 12315

AMRIT LAL and ASHA KIRAN

Plaintiffs

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2016
DATE OF JUDGMENT:	3 March 2017
CASE MAY BE CITED AS:	Re Kumar
MEDIUM NEUTRAL CITATION:	[2017] VSC 81 First Revision 6 March 2017

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SUCCESSION LAW — Where the deceased died intestate leaving a wife but no children — Where the deceased’s wife survived the deceased but died on the same day as the deceased — Entitlement to deceased’s intestate estate

WILLS AND ESTATES — Where deceased’s wife allegedly killed the deceased —Where deceased’s wife was not tried for alleged crime — Whether deceased’s wife morally culpable for deceased’s death so as to invoke forfeiture rule — Edwards v State Trustees Limited [2016] VSCA 28

PRACTICE AND PROCEDURE — Where Court appointed amicus curiae to represent the interests of the deceased’s wife’s estate to assist in the determination of the issues — Civil Procedure Act 2010, s 7

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	Easton Legal
Amicus curiae	Mr J L Smith	Suzanne Lyttleton

HER HONOUR:

Introduction

Asim Kumar (‘the deceased’)[1] died on 11 June 2012. At the time of his death, the deceased was married to Nidhi Parashar (‘Ms Parashar’). They lived together in a property in Blackburn, Melbourne (‘the matrimonial home’).
[1]Mr Sharma was also known as ‘Asim Kumar Sharma’ and ‘Asim Sharma’.

On the morning of 11 June 2012, a neighbour observed a woman, later identified as Ms Parashar, hanging from the carport of the matrimonial home. Having been alerted by the neighbour, police attended the scene and forced entry into the house. In a bedroom at the rear of the property, the deceased was found lying on a bed, having died from a combination of multiple blunt force wounds to his head and nine stab wounds to his chest and abdomen. A cricket bat and kitchen knife, both blood-stained, were found in the bedroom.

Despite searches, no last will and testament of the deceased has been found. The deceased’s estate has a net value of approximately $290,447.

Plaintiffs’ application

By originating motion filed 2 August 2013, the deceased’s parents, Amrit Lal and Asha Kiran (‘the plaintiffs’), applied for a grant of administration for the estate of the deceased. In order to determine whether the plaintiffs are entitled to a grant of administration, it must be determined whether the estate of Ms Parashar has any interest in the deceased’s estate. This raises two key issues for determination:

(a) Who of the deceased and Ms Parashar died first?

(b) If Ms Parashar survived the deceased, does the forfeiture rule preclude her estate from taking an interest in the deceased’s estate?

Ms Parashar’s parents were given notice of the plaintiffs’ application but did not seek to be joined as parties to the proceeding. In these circumstances, the Court appointed an instructing solicitor, Ms Suzanne Lyttleton, and counsel, Mr Jeremy Smith, as amicus curiae to ensure that Ms Parashar’s interests were represented and that the resolution of the proceeding was just.[2] Both are to be commended for their assistance and detailed submissions in fulfilling their roles in this proceeding.
[2]Civil Procedure Act 2010, ss 7 and 9.

The evidence

The deaths of the deceased and Ms Parashar were the subject of a coronial investigation. Although the plaintiffs initially sought to rely upon the findings of the Coroner, counsel for the plaintiffs conceded that this was prevented by s 91 of the Evidence Act 2008.

Consequently, in addition to two of their own affidavits, an affidavit of searches and two affidavits relating to service, the plaintiffs adduced oral evidence from Sergeant Brendan Pollock, the investigating police officer regarding the deaths, and Ms Yeliena Baber, the investigating forensic pathologist. The reports prepared by Ms Baber in relation to the deaths of both the deceased and Ms Parashar were also adduced in evidence.

Mr Smith relied upon a number of documents that had been gathered by Sergeant Pollock during his investigations: a statement of the first plaintiff taken 26 June 2012; a statement of Ms Parashar’s father, Jyoti Parashar, dated 14 June 2012; a statement of Ms Parashar dated 21 November 2010; a statement of Ms Louis Francis dated 14 December 2010; charge sheets and summons dated 28 January 2011; a Family Violence Safety Notice dated 21 November 2010; and a ‘LEAP’ search statement dated 20 March 2013. The statements of the first plaintiff, Mr Parashar and Ms Parashar all came within relevant exceptions to the rule against hearsay evidence.[3]
[3]Evidence Act 2008, ss 64(1) and (2)(b) in relation to Mr Lal and Mr Parashar; Evidence Act 2008, s 63(1) and (2)(b) regarding Ms Parashar.

While there is much common ground in the evidence, it is apparent that the statements of the first plaintiff and Mr Parashar diverge in a number of respects.

At the time of his death, the deceased was aged 36 years and Ms Parashar was aged 30 years. Both were originally from India. In 1995, the deceased moved to Australia to study. In 2006, through a mutual connection, the plaintiffs and the parents of Ms Parashar arranged a meeting between the two families to explore the possibility of marriage for the deceased and Ms Parashar. The deceased travelled back to India in March of that year and met Ms Parashar for two to three hours. The couple then agreed to marry. As stated by the first plaintiff, the deceased ‘wanted a girl who would look after him and his house and his family. It was decided that [Ms Parashar] was the right type of person’. Although the deceased then returned to Australia, he and Ms Parashar spoke via telephone twice each month.

On 11 December 2006, the deceased and Ms Parashar were married in India. According to Mr Parashar, a dowry of 500,000 rupees worth of gold and ornaments was paid to the plaintiffs. The first plaintiff stated, however, that a dowry was not paid nor was it asked for.

After the marriage, the deceased returned to live in Australia. Ms Parashar stayed in India for the next four months while waiting for her Australian visa to be issued. During that time, she lived intermittently with the plaintiffs. The first plaintiff stated that Ms Parashar would stay with his wife and him for a few days at a time, before returning to her parents. According to Mr Parashar, initially after the wedding Ms Parashar lived with the plaintiffs for two months, during which time she was treated like a servant and verbally abused by them. After this, she lived with her parents for ‘a week’s time’ and told them that the plaintiffs abused her and mistreated her.

In March 2007, Ms Parashar joined the deceased in Melbourne, initially living in a share house. Mr Parashar stated that the couple lived with six to eight of the deceased’s friends and that his daughter was again treated like a servant. The first plaintiff, however, simply stated that the couple lived with a friend of the deceased. After twelve months, the deceased and Ms Parashar moved into the matrimonial home.

The deceased and Ms Parashar both maintained regular telephone contact with their parents. Differing accounts of their relationship have been provided by the first plaintiff and Mr Parashar. The first plaintiff recounted that Ms Parashar would yell at the deceased and abuse him: ‘he told us that Nidhi did not want him to speak with his friends or with us. She would yell at him for respecting us, and demanded that he respect her parents’.

Mr Parashar, however, stated that Ms Parashar was not happy upon moving into the matrimonial home. The deceased would go out with his friends and Ms Parashar’s income had to be paid into a joint account, which the deceased controlled. Ms Parashar would only be given money if she pleaded. During this time, Ms Parashar indicated to her parents that she wanted them to visit Australia before she made any ‘decision’ to leave the deceased. In March 2008, her parents visited Australia and decided that Ms Parashar would return to India. According to Mr Parashar, his daughter instead offered the deceased one more chance to improve after he pleaded with her parents that Ms Parashar ‘would not complain about him in future’.

Mr Parashar’s statement then refers to an occasion in approximately November 2010 when Ms Parashar told her parents by telephone that the deceased had struck her in the eye. The deceased had resigned from his job, returned to India and the couple were to live apart for six months. Mr Parashar stated that he contacted the first plaintiff around this time to tell him that he (Mr Parashar) was taking Ms Parashar back to India. According to Mr Parashar, the first plaintiff reported that everything was fine in Melbourne. The first plaintiff’s statement makes no reference to the deceased returning to India during this period. Notably, however, the incident as referred to by Mr Parashar corresponds with police records and a statement made by Ms Parashar at that time.

On 21 November 2010, Ms Parashar telephoned the police from a neighbouring property after an altercation with the deceased. The statement that she subsequently provided to the police began with the following:

I live at the address with my husband … We have lived at the address for three years. We have been married for four years.
For the last four years that we have been married he has been hitting me sometimes once a week, other times twice a week. We have been arguing and fighting as well, some of it over sending money to our parents. There was no set time. It only seemed to happen after he had spoken to his parents.
In the past I had told him that I didn’t want to live with him as we are not happy with each other. He always said no, it will be okay. So I have stayed with him as I love him.

The statement then continues to recount certain events over the previous two days. On 20 November 2010, Ms Parashar awoke and heard the deceased talking on the telephone to a person whom she inferred to be his mother, the second plaintiff. An argument took place as follows:

[The deceased] said, ‘Why you come here (in the kitchen)? ... You go away. It is my home, not your home. You go away.’
[Ms Parashar] said, ‘It is my home as well. I am your wife. The way you are treating me is really hard for me. I don’t know if I can live like this. Why are you so upset? Is that your mother, who told you something that you are upset with me again?’
[The deceased] became angry then, and said, ‘Don’t you dare say anything about my mother’.

The deceased then slapped Ms Parashar across the face at least three times, grabbed her hair and pulled it. Ms Parahsar reported that she was crying from the pain and:

… shouting at him for him to stop, for him to leave me alone. I tried to leave but he had one of my arms and pulled me to our bedroom where he told me to settle down. He apologised and told me that he would not do this again. I decided to stay. He has been like this for the last four years. I love him. I just don’t want to be treated like this by him.

On 21 November 2010, after returning from work Ms Parashar again heard the deceased talking on the phone to a person she assumed to be his mother. When the conversation finished, Ms Parashar asked who the deceased was speaking to. The following then occurred:

He told me to go away. He then slapped me across my face at least three times. I tried to stop him from hitting me. He also verbally abused me any [sic] my family, like saying my mother was a bitch.
I went to our bedroom to get my phone so that I could call for Police to come as I have had enough of being hit. When I got it I went to the front door with it. He saw the phone in my hand.
He tried to snatch it from my hand. I managed to keep it in my hand. I then swung my arms around trying to keep him away, and to keep my phone. He then started hitting me again. He punched me a number of times to my head. I was shouting for help. There was a lot of pain. I was crying. He grabbed a towel from somewhere and tried to hold it across my mouth to stop me shouting. He was also grabbing my arms and holding me. He managed to take my phone from me.
…
He the [sic] said okay and stopped hitting me. He then got all of the phones from the house and he went outside with them.

Ms Parashar then left the matrimonial home and went to a neighbouring property. The deceased went to the neighbour’s front door and after a short conversation with Ms Parashar, left her phone on the ground. Ms Parashar then telephoned the police.

According to the statement of the police officer who then attended the house, Ms Parashar was crying and quite distressed, and her left eye was swollen and quite red. The deceased was arrested for assault and issued with a Family Violence Safety Notice (‘the Notice’). The Notice required the deceased to attend the Ringwood Magistrates’ Court on 23 November 2010, where it appears that he was subsequently served with a Family Violence Intervention Order (‘IVO’). The IVO contained a number of conditions including that the deceased was not to commit family violence against Ms Parashar, contact her except through a lawyer, or go to or remain within 200 metres of the matrimonial home.

On 28 January 2011, the deceased was charged with intentionally causing injury, unlawful assault and assault with a weapon (a towel) in relation to the incidents of 21 November 2010. He was summonsed to appear at Ringwood Magistrates’ Court on 18 May 2011. There are some handwritten amendments on the charge sheets suggesting that not all of the charges were pursued. In the event, however, although the evidence suggests that the deceased may have initially claimed that his actions were in self-defence, he later entered a guilty plea to charges of assault and did not receive a conviction.

Mr Parashar stated that in the two to three months that the deceased was living in India, the deceased pleaded with Ms Parashar to withdraw the IVO. The deceased assured her that ‘they would start a new life forgetting the past’. On 27 May 2011, the IVO was revoked on the application of Ms Parashar. According to Mr Parashar, this occurred because the deceased was seeking employment and he ‘could not do this whilst he was going to court’. The deceased then moved back into the matrimonial home.

After this period, Ms Parashar reportedly started a new job and opened a bank account under her control. Mr Parashar indicated that this may have created some tension with the plaintiffs, which was again associated with telephone calls with the deceased:

His parents would get upset at him and say that Nidhi was not good enough for him, and she was trying to be independent and he should leave her. After these phone calls Asim would get angry at Nidhi and would abuse her. Nidhi told us that Asim would hit her and abuse her at occasions.

Significantly, Mr Parashar went on to note that there were then periods when the relationship between the deceased and Ms Parashar appeared a happier one. In June 2011, the couple returned to India for a week and seemed happy, and there was a six to eight month period in which Ms Parashar reported to her parents that ‘everything was good’. According to Mr Parashar, in March or April 2012 the couple also went on a holiday to Bali. The plaintiffs reportedly objected to this holiday as ‘wasting money and wasting time’.

On 5 May 2012, the plaintiffs visited Melbourne on what was planned to be an approximately eight week trip, having booked return flights for 29 June 2012. The plaintiffs were travelling with their friends, Dr Madan and his wife, and both couples initially stayed in the matrimonial home.

The first plaintiff stated that after three or four days, Ms Parashar was yelling at Dr Madan and at 11pm threw Dr Madan’s bags outside the matrimonial home, demanding that he and his wife find accommodation elsewhere. Although Ms Parashar subsequently apologised for her behaviour, Dr Madan and his wife stayed elsewhere. According to Mr Parashar, during this time the first plaintiff asked the deceased why Ms Parashar had her own bank account and where the money was, asserting that the bank balance should be transferred to the plaintiffs or the deceased should get a divorce.

The first plaintiff recounted that during his visit to Melbourne he observed Ms Parashar yelling at the deceased. He requested that the couple not argue in the plaintiffs’ presence, but otherwise the plaintiffs would not get involved. The first plaintiff noted that at some time during this period, Ms Parashar brought home divorce papers and demanded that the deceased sign them, saying that she wanted a divorce. According to the first plaintiff, although the deceased said that he would sign the papers, Ms Parashar realised that she did not have a copy of the marriage certificate and the couple later made up.

Again, Mr Parashar’s statement differed from that of the first plaintiff when recounting this period. He asserted that between 10 May 2012 and 30 May 2012:

… after coming home from work [Ms Parashar] was locked in a room and not allowed to leave. She told us that her face was covered and she could not scream. She told us that she called the Police who came to her house, but she was locked in the room and did not see the Police.
The Police asked why the phone call had happened. Asim and his parents went outside and said that the phone call happened by accident and there was no problem. After this Nidhi told him them that she was going to report to the Police the next day what happened.
Asim and his parents all begged Nidhi to not report it to Police. Nidhi agreed that she would not report what happened to Police.

According to Mr Parashar, his daughter again indicated that the plaintiffs were upset that her income was not being paid to them. The plaintiffs told the deceased that Ms Parashar’s money should be going to him, and that if it did not, they would ‘compel her to leave’ him. The deceased, however, was accepting of Ms Parashar not paying him money as ‘he was a rich man and could support her’. Mr Parashar stated that on 9 June 2012 the plaintiffs ‘asked for a copy of the marriage certificate’. It appears that the request was directed to both the deceased and Ms Parashar, neither of whom had a copy of the certificate. As such, the first plaintiff said that he would have one sent from India in order for the couple to be divorced.

As recounted by the first plaintiff, the plaintiffs brought their departure tickets forward 18 days to 11 June 2012. The reason for this change was said to be that the plaintiffs spent ‘their days at home bored, and at night would be scared because Nidhi would yell and scream at Asim and us’.

In the week leading up to 11 June 2012, the first plaintiff stated that Ms Parashar was sick and took six days off work. She was vomiting and his wife had to look after her at the house. After this, Ms Parashar was said to appear happy and took the plaintiffs to the market and shopping.

According to the first plaintiff, on 10 June 2012, the day of the plaintiffs’ departure, Ms Parashar was still sick and had a temperature. Although she wanted to come to the airport, it was cold and raining outside. He recounted:

I told Nidhi that we had been here for a month, a couple of hours at the airport would not make a difference, and she would get sicker, and we would be worried about her the whole way home. Nidhi was weeping and upset. Nidhi said to me, ‘Whatever I have done, please forgive me.’ I told her that parents always pardon their kids, as I treated Nidhi like she was my daughter.

The second plaintiff then gave Ms Parashar approximately $1,100 which was left over from their trip, telling Ms Parashar that she could buy whatever she liked as her birthday was coming up. The deceased and his friend, who later planned to have dinner together, then took the plaintiffs to the airport where they checked into their flight at about 11pm.

According to Mr Parashar, Ms Parashar repeatedly requested to go to the airport with the deceased and the plaintiffs. These requests were refused. The plaintiffs said ‘at any cost we will not take you to the airport’ and the deceased said ‘no, let me come back I will see you’. The last time Mr Parashar spoke with his daughter was at around 10.30pm. Recounting this final conversation he stated:

Nidhi was sad on the phone and was crying… Nidhi told us that she was in great fear, she said, ‘I do not know what is going to happen today’. I told Nidhi to remain calm. I told her that Asim would come back to her. I believed that Asim would be arrogant for a day or so and then would be a good boy.

The following day, 11 June 2012, police attended the matrimonial home after being alerted to Ms Parashar’s body having been found hanging from the carport at the matrimonial home. It was Mr Parashar’s belief that his daughter was beaten and verbally abused over the whole time of the marriage. Both the deceased and the plaintiffs were stated to be the source of the abuse, and over time, Ms Parashar was said to have become scared and fearful.

Police investigation

Sergeant Pollock gave evidence that upon attending the matrimonial home at 11am on 11 June 2012, he observed Ms Parashar hanging by a rope in the carport. He was then informed by other members of police that entry to the matrimonial home had been gained by forcing the lock of the front door. No damage to any windows or doors was identified.

Sergeant Pollock then observed the deceased lying on his back on a bed in the rear bedroom of the matrimonial home, with blunt force wounds to his head and multiple stab wounds. He then secured the premises and engaged the services of the Major Crime Scene Unit. The Homicide Squad also attended. Based upon evidence at the scene, Sergeant Pollock formed the opinion, with which the homicide squad concurred, that it was most likely a murder-suicide. During cross-examination, however, he agreed that an alternative hypothesis was that a third party could have been responsible for killing the deceased. The finding that the matrimonial home was secure did not necessarily suggest alone that Ms Parashar killed the deceased.

In order to identify the history of the deceased’s relationship with Ms Parashar and assist in determining the cause of death, Sergeant Pollock made a number of inquiries, including a canvass of the area, and speaking to friends and relatives of the couple. It was through these inquiries that the statements of the first plaintiff and Mr Parashar were obtained, as well as the police records regarding the family violence incidents of 20 and 21 November 2010. During the hearing, Sergeant Pollock stated that he had no knowledge of the police being called to the matrimonial home, other than on 21 November 2010.

Pathologist’s findings

Ms Baber visited the matrimonial home at 5pm on 11 June 2012. She observed the deceased in the main bedroom of the matrimonial home lying on a bloodstained bed. A bloodstained cricket bat and steak knife were on the mattress. The tee shirt that the deceased was wearing was heavily bloodstained and had nine defects in it consistent with stab wounds. There was also quite a lot of blood spatter, cast off and arterial, on the wall and ceiling of the bedroom. The deceased’s cheek appeared sunken and his face had bruising and multiple lacerations. In Ms Baber’s opinion, a cricket bat caused these facial injuries.

The deceased suffered significant injuries to his head, chest and abdomen. His heart had two stab wounds, one which penetrated four centimetres into the right ventricle. Blood was found in the sac around the heart and both cavities surrounding the lungs. In the cavity around the left lung, 550 millilitres of blood was present and in the area surrounding the right lung, 750 millilitres of blood was present. Ms Baber concluded that this blood had leached into the chest cavity from the injury to the heart and its surrounding sac. The right lung had two stab wounds, one which penetrated its entire thickness. The deceased also had stab wounds into his large bowel and liver, again, one of which penetrated the full thickness of the liver, and 200 millilitres of blood was found in the cavity surrounding his abdominal organs. In Ms Baber’s opinion, the stab wounds were consistent with the kitchen knife found in the bedroom.

The head injuries included a ten centimetre horizontal fracture of the deceased’s frontal bone and a fractured left check. He also sustained a small amount of bleeding between the brain tissue and one of its protective layers, consistent with being hit by a cricket bat in the head.

The deceased had defensive injuries in the form of bruising to the back of his hands and elbows. Ms Baber stated that such injuries were consistent with a person putting their arms up when they were being struck, suggesting that the deceased may have been conscious when he was attacked.

Ms Baber found that the cause of death of the deceased was multiple stab wounds to the chest and blunt force trauma to the head. It was not possible to say whether one particular injury caused his death. In her opinion, while either the head injury or the stab to the heart alone could have been fatal, it really was a combination of the two. Further, she was unable to state whether the deceased’s death was instantaneous, or took longer. In her words:

[W]ithout the stab wound to the heart with the head injury he could have been alive for some time. However, the wound to the heart and then the substantial amount of blood in the chest cavities suggesting that he’s bled out, this is very difficult, it could have been very quick, a matter of minutes. But I’ve seen people stabbed through the heart who’ve been alive and moving around for up to half an hour or so.

Turning to Ms Parashar, Ms Baber observed Ms Parashar’s body hanging from the carport with a chair to the side. Dried blood was noted on Ms Parashar’s hairline, both forearms and legs. No injuries were found on Ms Parashar to account for the blood. Her only injury was the ligature mark on her neck. Ms Baber did not find anything to suggest that someone else was involved in the hanging. The toxicology report showed therapeutic levels of an anti-nausea medication, and of final note, her autopsy showed features consistent with Hashimoto’s thyroiditis.

During cross-examination, Mr Smith raised the possibility that someone else may have placed Ms Parashar in the noose. Ms Baber stated that if someone else had strung Ms Parashar up while Ms Parashar was struggling, she would have expected to observe bruising. If Ms Parashar was incapacitated, however, then bruising would not necessarily be seen. As such, she agreed with Mr Smith that she was unable to exclude the possibility that Ms Parashar was placed in the noose by someone else.

Findings regarding the evidence

Ms Baber and Sergeant Pollock were both credible witnesses and there is no reason to doubt their evidence.

Although certain amendments had been made to the charge sheets, the evidence is clear that on 21 November 2010 a significant family violence incident occurred, resulting in the deceased pleading guilty to assault and being served with a 12 month IVO. There is no evidence before the Court that the deceased disputed the account of events provided by Ms Parashar in her statement dated 21 November 2010. Rather, the reason he gave to account for his actions appears to be ‘self-defence’, prior to pleading guilty. Accordingly, I accept as true the content of the statement provided by Ms Parashar.

Greater difficulty is encountered regarding the statements of the first plaintiff and Mr Parashar. The statements were taken shortly after the deaths of Ms Parashar and the deceased, after both of them travelled from India, in emotional and distressing circumstances.

The first plaintiff’s statement repeatedly refers to Ms Parashar yelling at and abusing the deceased after the couple moved into the matrimonial home. The basis of such conflict is said to be the respect that the deceased afforded to the plaintiffs and Ms Parashar’s parents, as well as Ms Parashar not wanting the deceased to spend time with his friends. Beyond this, it is not specified why the yelling and abuse that the first plaintiff referred to extended to the plaintiffs and Dr Madan. Further, explanations are not given as to why Ms Parashar lived intermittently between the plaintiffs’ home and her parents’ home in the period while she was awaiting her visa, nor what may have prompted Ms Parashar to bring divorce papers home and the deceased to agree to sign them in the days leading up to 11 June 2012. The statement also fails to refer to the events of November 2010 and the subsequent IVO. While it is possible that the deceased did not disclose this information to the plaintiffs, he was in regular contact with them and purportedly returned to India during the period that the IVO was in force.

Certain aspects of the first plaintiff’s statement are difficult to reconcile. I do not accept that after divorce papers were obtained and the deceased was ready to sign them, the only limitation being access to the marriage certificate, the couple simply ‘made up’. Similarly, the first plaintiff noted one of the reasons the plaintiffs’ cut their trip to Australia short was that they were scared of Ms Parashar during the evenings. Before they left, however, they gave Ms Parashar $1,100 as a birthday gift. While Ms Parashar’s period of illness—as is consistent with anti-nausea medication being identified upon autopsy—and request for forgiveness go some way to explaining this turnaround, I have reservations as to the level of fear that the plaintiffs held toward Ms Parashar or indeed the extent of reconciliation. Two further factors raise some doubt regarding how scared the plaintiffs were of Ms Parashar. First, the deceased had previously demonstrated that he objected to Ms Parashar questioning his parents and he was at home during the evenings. Secondly, the first plaintiff referred to ‘parents always pardon[ing] their kids’. Referring to pardoning a child is inconsistent with a level of fear of Ms Parashar that motivated a shortened trip.

The statement of Mr Parashar provides greater detail as to the history of the relationship of the deceased and Ms Parashar, albeit primarily from Ms Parashar’s perspective. There are consistencies between Mr Parashar’s statement and the statement of Ms Parashar. Both statements, for example, identify the deceased talking to his parents as correlating with conflict in the relationship. There are also similarities in the circumstances of abuse as stated by Ms Parashar, and as conveyed by Mr Parashar. In Ms Parashar’s statement, for example, reference was made to the deceased telling her to ‘go away’, covering her face and taking her to the bedroom. Similarly, as recounted after telephone conversations with Ms Parashar, Mr Parashar referred to his daughter being locked in a room, prevented from leaving and having her face covered in May 2012. However, although the police were said to have been called to the house, Sergeant Pollock was unaware of any police visits to the matrimonial home other than that recorded on 21 November 2010. Further, a degree of inconsistency is evident between Mr Parashar’s belief that his daughter was beaten and suffered abuse her entire marriage and his earlier account that she seemed happier in June 2011 and for a period of six to eight months thereafter.

Overall, where the statements of the first plaintiff and Mr Parashar directly conflict, I accept the truth of Mr Parashar’s statement. However, the points of direct conflict are limited to the evidence surrounding payment of the dowry, the number of people living in the share house and perhaps who was seeking a copy of the marriage certificate. Much of the context that Mr Parashar provided was not directly referred to by the first plaintiff and it is possible that the events recounted within the two statements co-existed, for example, the first plaintiff referred to treating Ms Parashar like a daughter, but this is not necessarily entirely inconsistent with evidence that the plaintiffs treated Ms Parashar like a servant.

Determining the order of death of the deceased and Ms Parashar

It is necessary to determine who of the deceased and Ms Parashar died first. If it is determined that Ms Parashar died first, her estate cannot have any interest in the estate of the deceased.[4]
[4]See, eg, G E Dal Pont and K F Mackie, Law of Succession (Lexis Nexis, 2013) 9.15.

Establishing the order of death requires consideration of how the couple died. The plaintiffs submit that the evidence shows on the balance of probabilities Ms Parashar inflicted the injuries to the deceased and that he died first. Although Mr Smith made no submissions as to the order of death, at the hearing he conceded that the preponderance of evidence supported the conclusion that Ms Parashar killed the deceased.

Where the matter to be proved in civil proceedings is a crime, although the civil standard of the balance of probabilities applies, it is necessary to keep in mind the gravity of the issues at hand.[5] Certainly, a finding that Ms Parashar inflicted the injuries that caused the deceased’s death is significant, prima facie satisfying one of the elements of homicide. That said, I accept that, on balance, the evidence establishes that Ms Parashar inflicted the injuries sustained by the deceased. Of particular significance is the fact that Ms Parashar had blood on her hairline and on the clothing of her forearms and legs. While she had no injuries to explain this pattern of blood, the injuries to the deceased caused significant blood loss and spatter. No defensive injuries were found on Ms Parashar and there is no evidence to indicate that she was incapacitated and placed in the noose by a third party.
[5]Helton v Allen (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ).

In relation to the order of the deaths, s 184 of the Property Law Act 1958 provides:

Presumption of survivorship in regard to claims to property
In all cases where, after the second day of December One thousand nine hundred and twenty-five, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

An analogous statutory provision, s 35 of the Conveyancing Act 1919 in New South Wales, was considered in Re Plaister, a case involving a man who killed his wife and daughter before committing suicide.[6] The issue was the order of death. Regarding the statutory provision, Harvey CJ stated:

In my opinion I ought not to hold that ‘uncertain’ means that it has not been demonstratively proved, not beyond scientific accuracy. I think that s. 35 of the Conveyancing Act really was meant to fill up a gap which existed previously in law, where the Court was unable by a balance of testimony satisfactory to itself to come to a conclusion as to the order of deaths.[7]

[6]Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547 (‘Re Plaister’).

[7]Ibid 551.

His Honour then went on to refer to circumstances, such as foreign massacres and shipwrecks, where there was no evidence before the court as to the order of deaths before determining that the statutory provision was ‘not to take away from the Court the power which it had previously of deciding that fact, if it could decide it, by evidence’.[8] This approach has been followed in Victoria,[9] where it is accepted that s 184 does not absolve the court of the task of weighing up the evidence.[10] As such, it is necessary to consider the evidence regarding the order of death.
[8]Ibid 552.
[9]Re Comfort [1947] VLR 237, 240 (Herring CJ).
[10]Ibid. See also Re Rowlings [2010] VSC 626 (23 December 2010) [10] (Macaulay J).

Ms Baber was unable to state whether the deceased’s death was instantaneous. Her evidence as to the deceased’s chest injuries causing him to ‘bleed out’ suggested that death could have occurred in a matter of minutes, although she did refer to cases in which people have been alive for an hour or so. A substantial amount of blood was found in the deceased’s lung cavities, on his clothing and spattered on the wall and ceiling of the bedroom. This was in addition to the blood found in his abdominal cavity. After inflicting the injuries which triggered such blood loss, at the very least, Ms Parashar had to move to the carport and position herself in the noose. On balance, I accept during that time the deceased lost such a substantial amount of blood that he died. In the event that I was uncertain on this point, I note that given the ages of the deceased and Ms Parashar at the time of their deaths, the application of s 184 of the Property Law Act 1958 provides that Ms Parashar shall be presumed to have survived the deceased.

Does the forfeiture rule prevent the estate of Ms Parashar from taking an interest in the deceased’s estate?

Having found that the deceased predeceased Ms Parashar, prima facie Ms Parashar’s estate is entitled to take the deceased’s estate in accordance with s 51(1) of the Administration and Probate Act 1958. The plaintiffs submit, however, that Ms Parashar’s estate should be precluded from taking any interest in the deceased’s estate by reason of the application of the forfeiture rule.

The forfeiture rule is based upon the general principle that ‘no person can obtain, or enforce, any rights resulting to them by their own crime’.[11] It applies in the context both of wills and intestacies.[12] Although the principle is clear, its application by courts in relation to unlawful killing has varied. Certainly, the rule has always applied in the context of murder.[13] Courts diverged, however, as to whether the rule should apply strictly in circumstances such as manslaughter, diminished responsibility, assisted suicide and family violence, or whether some flexibility could be afforded on a case by case basis. The position in Victoria was clarified recently by the Court of Appeal in Edwards v State Trustees Limited.[14]
[11]Edwards v State Trustees Ltd [2016] VSCA 28 (10 March 2016) (‘Edwards’) [2] (Whelan JA), citing Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 and In the Estate of Crippen [1911] P 108.
[12]Rivers v Rivers (2002) 84 SASR 426, 435–6 [42]–[43] (Duggan J). See also Re Sigsworth: Bedford v Bedford [1935] 1 Ch 89; Re Sangal [1921] VLR 355.
[13]Edwards [2016] VSCA 28 (10 March 2016) [3] (Whelan JA).
[14]Ibid.

Edwards involved circumstances of family violence. Mrs Edwards, who had a history of anxiety, depression and was diagnosed as bipolar, had been married for approximately 13 years. During almost all of this period, the relationship with her husband was marred by family violence.[15] Police were repeatedly called to the house to intervene and Mrs Edwards described a history of being strangled and kicked by her husband. At a time when an IVO was in place, after a number of threats and possibly a physical altercation, Mrs Edwards shot her husband in the back with a spear gun and inflicted 29 other injuries to his body.[16] The majority of these were to the upper body and head area, and included six stab wounds, one of which penetrated the heart.[17] Mrs Edwards pleaded guilty to defensive homicide as it then existed under the Crimes Act 1958 (‘the Act’), and was sentenced to seven years’ imprisonment.[18] At issue in the subsequent civil proceeding was whether Mrs Edwards, as the sole beneficiary under her husband’s will, was prevented from taking her interest in her husband’s estate by reason of the forfeiture rule.
[15]R v Edwards [2012] VSC 138 (24 April 2012) [11] (Weinberg JA).
[16]Ibid [25].
[17]Ibid [26].
[18]Crimes Act 1958, s 9AD. The offence of defensive homicide has since been repealed by s 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014.

After reviewing the relevant authorities, identifying inconsistencies in the formulation and application of the rule and noting the need for coherence with both the criminal law and other civil contexts, the majority of the Court of Appeal (Whelan JA, with whom Kyrou JA agreed) held that ‘the nature of the particular crime determines the application of the principle’.[19] Application of the forfeiture rule in cases of murder was considered ‘clear and uncontroversial’,[20] such that the offender would always be precluded from benefiting.[21] As to cases of manslaughter, which defensive homicide was viewed as being relevantly analogous to, consideration:

is required 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?[22]

[19]Edwards [2016] VSCA 28 (10 March 2016) [65].

[20]Ibid [3].

[21]Ibid [6].

[22]Ibid [66].

In effect, the Court of Appeal rejected the proposition that in cases of manslaughter the forfeiture rule must apply strictly. Rather, application of the rule in the context of manslaughter or analogous circumstances is discretionary, turning upon the criminal culpability of the person seeking to take a benefit. On the facts, Mrs Edwards’ criminal culpability was such that she was not entitled to ‘benefit from the death which she caused’ and the forfeiture rule applied.[23]
[23]Ibid [87].

In light of the approach of the Court of Appeal in Edwards, in order to determine whether the forfeiture rule precludes Ms Parashar’s estate from taking an interest in the deceased’s estate, the following two issues require resolution:

(a) Did Ms Parashar murder the deceased?

(b) If Ms Parashar did not murder the deceased, is her criminal culpability such that the forfeiture rule still applies?

Submissions of the parties

The plaintiffs submitted that Ms Parashar murdered the deceased and the forfeiture rule therefore applies. A finding of either self-defence or defensive homicide is not supported on the evidence. Alternatively, the plaintiffs submitted that if it is determined that the deceased was killed in an act of defensive homicide, then Ms Parashar’s criminal culpability is such that her estate should be precluded from taking the deceased’s estate.

In relation to murder, the plaintiffs submitted the deceased was deliberately and intentionally attacked. He had defensive wounds suggesting that he may have been conscious during the attack, and given that Ms Parashar had no injuries, this is not a case where ‘two people struggled’. Instead, as the nature of the attack would have caused grievous bodily harm, or was likely to, the legal tests of murder are satisfied. The conduct cannot be self-defence as there is no subjective or objective evidence that in the period leading up to the attack Ms Parashar was in imminent fear of harm. There is no evidence of threats, and the only evidence that the Court has is that which Ms Parashar made to her father saying that she did not know what would happen when the deceased returned from the airport. This is, however, against the evidence from the first plaintiff that there seemed to be nothing wrong at the time.

Counsel for the plaintiffs invited the court to accept that as there were six to eight months of happiness between the couple, that they had reconciled and Ms Parashar must have forgiven the deceased of his transgressions in the past. Although there appears to have been some difficulty during the visit of the plaintiffs to Australia, the evidence on this point is conflicting. There is no subjective or objective evidence that shows that there had been violence towards Ms Parashar in the period leading up to 11 June 2012, nor that she feared violence. Additionally, there is no real evidence of belief, either reasonable or unreasonable, that Ms Parashar was in imminent fear of harm.

Alternatively, if a finding of defensive homicide is made, the plaintiffs submitted that Ms Parashar’s criminal culpability is such that the forfeiture rule should apply. Counsel for the plaintiffs submitted there was extreme violence in circumstances where the deceased ‘could hardly defend himself and, one might say, a very cowardly attack to attack him when he’s lying in bed’. The element of violence exceeds that in Edwards, and the fact that Ms Parashar hanged herself after killing the deceased points to an element of guilt which ‘had she genuinely had a fear … is something she may not have done’.

Mr Smith conceded that if the Court found that Ms Parashar was responsible for the injuries inflicted to the deceased, then it must be that she intended to cause really serious injury or knew that the probable result would be very serious injury. Consequently, there would be a prima facie basis for a finding of murder. He then submitted, however, that the court was required to consider the application of ss 9AC and 9AD of the Act at the relevant time. As in force on 11 June 2012, those sections provided:

9AC Murder—"self-defence"
A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.
Notes
1 See section 4 for alternative verdict of defensive homicide where the accused had no reasonable grounds for the belief.
2 This section does not apply where the response is to lawful conduct—see section 9AF.
3 See section 9AH as to belief in circumstances where family violence is alleged.

9AD Defensive homicide
A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.
Note
See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged.

Mr Smith submitted that according to Babic v The Queen,[24] the Crown must prove the absence of the belief referred to in s 9AC. Similarly, in this case it rests on the plaintiffs to disprove or negative self-defence.
[24]Babic v The Queen (2010) 28 VR 297 (‘Babic’).

There is no strictly contemporaneous evidence that demonstrates Ms Parashar’s beliefs. In Mr Smith’s submissions, however, the Court can infer from all of the circumstances that Ms Parashar was afraid, that she had been subject to violence and that she believed she needed to kill the deceased to get away from it. Of particular relevance from the evidence is the following:

(a) the history of violence as disclosed by Ms Parashar’s statement of 21 November 2010, the deceased’s guilty plea and the IVO;

(b) the correlation as identified by Ms Parashar between the deceased having conversations with his parents and afterwards becoming violent;

(c) the statement of Mr Parashar, which discloses that:

(i) in the period prior to obtaining her visa, Ms Parashar said that she was abused by the plaintiffs and, upon moving into the shared house in Australia, she was treated like a servant. After Ms Parashar moved into the matrimonial home she said that she was unhappy and considered leaving;

(ii) control of Ms Parashar’s income was a source of conflict and that the violence continued after the IVO;

(iii) although there was perhaps a period of reconciliation, it appears that control of money continued to cause friction and the plaintiffs’ view was that Ms Parashar should not be managing her own money;

(iv)in the period leading up to 11 June 2012, Ms Parashar complained of being locked in her room and on 9 June 2012 the plaintiffs were speaking of divorce; and

(v) on the evening of 10 June 2012, Ms Parashar was not allowed to join the plaintiffs and the deceased travelling to the airport. She phoned her parents crying, said that she was ‘in great fear’ and stated ‘I do not know what is going to happen today’; and

(d) the statement of the first plaintiff, which discloses that:

(i) when Ms Parashar lived with the plaintiffs while awaiting her visa they treated her like their own daughter;

(ii) the deceased told the plaintiffs that Ms Parashar would yell abuse at him. This, it is submitted, is evidence for the relationship being fractious and difficult; and

(iii) Ms Parashar was sick on the night of the departure of the plaintiffs and was weeping and upset.

Mr Smith submitted that statements by both the first plaintiff and Mr Parashar that the couple made up are unconvincing. Rather, ‘tension permeated the relationship for its duration’. Ultimately, while the Court can infer that Ms Parashar held the belief that killing the deceased was necessary to get out of a violent marriage, that belief was not reasonable in the circumstances. As such, the evidence supports a finding of defensive homicide, not murder.

In relation to the criminal culpability of Ms Parashar, the Court must weigh the fact that the deceased was in his bed when he was killed, the use of two weapons and the extreme level of force with the evidence of family violence, her illness and distress at the time. There is strong evidence of physical abuse from 2009 to 2010, an assault conviction and inferences that the violence continued beyond this period as a consequence of the ‘volatile and fractious’ nature of the relationship and the statements that Ms Parashar made to her parents. Further, on the evening of 10 June 2012, Ms Parashar was sick, distressed, crying and in great fear. In Mr Smith’s submission, the Court should exercise its discretion not to impose the forfeiture rule.

Did Ms Parashar murder the deceased?

If Ms Parashar murdered the deceased, the court has no discretion in applying the forfeiture rule. It is therefore necessary to consider whether Ms Parashar’s conduct amounted to murder.

Applicable legal principles

It is open to the finder of fact in a civil proceeding to determine whether a person’s conduct amounts to a crime, even though the person may have been acquitted of that crime in a criminal trial,[25] or in fact such a trial has not taken place.[26] As already referred to, the requisite standard of proof remains the balance of probabilities, although the gravity of the issue at hand must be borne in mind.[27] Further, the distinction between the criminal and civil standard is maintained in relation to circumstantial evidence. As stated in Transport Industries v Longmuir:

In a civil case like this, where there is no direct evidence of a fact that a party bearing the onus of proof seeks to prove, ‘it is not possible to attain entire satisfaction as to the true state of affairs’… In such a case, however, the law does not require proof to the ‘entire satisfaction’ of the tribunal of fact… [Tadgell JA then quoted the following from Bradshaw v McEwans Pty Ltd]:
The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture… But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise.[28]

[25]Helton v Allen (1940) 63 CLR 691, 710 (Dixon, Evatt and McTiernan JJ); Rivers v Rivers (2002) 84 SASR 426.

[26]Gonzales v Claridades (2003) 58 NSWLR 188, 204 [62] (Campbell J). See also Re Plaister (1934) 34 SR (NSW) 547; Re Dellow’s Will Trusts [1964] 1 WLR 451; [1964] 1 All ER 771.

[27]Helton v Allen (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (2002) 110 ALR 449, 451 (Mason CJ, Brennan, Deane and Gaudron JJ).

[28]Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 141 (Tadgell JA), quoting Bradshaw v McEwansPty Ltd (1951) 217 ALR 1 (other citations omitted).

Turning to consideration of the legal principles in relation to murder, the classical definition of the offence at common law was set out by Sir Edward Coke:

Murder is committed when a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the King’s peace with malice aforethought either express or implied.[29]

[29]Sir Edward Coke, 3 Inst 47.

The following elements must be established:

(a) the death of “a reasonable creature in being under the King's peace”, that is, the death of a human being within Victoria or as a result of an act done within Victoria;
(b) the death was caused by the intended act or omission of the accused;
(c) malice aforethought preceded or co-existed with the act or omission. The mental state known as malice aforethought is satisfied by:
(i) an intention to cause the death of, or grievous bodily harm to, any person whether such person is killed or not;
(ii) knowledge that the act which caused death would probably cause the death of, or grievous bodily harm to, some person, whether such person is actually killed or not; and
(iii) intent to commit any crime the necessary elements of which include violence and which may on first conviction be punished by life imprisonment or imprisonment for a term of 120 months or more, where the death is unintentionally caused by an act of violence done in the course or furtherance of such a crime.[30]

[30]LexisNexis, Bourke’s Criminal Law Vic, Crimes Act 1958, [s 3.10].

Further, in criminal trials where any of the ‘defences’ are raised, including automatism or self-defence, the onus is on the Crown to establish that the facts do not give rise to the relevant defence.[31]
[31]Ibid.

Of significance, on 11 June 2012 the Act provided for both self-defence and defensive homicide in ss 9AC and 9AD respectively.[32] Additionally, at that time s 9AH of the Act specifically contemplated circumstances of family violence:
[32]See [72] above.

s 9AH Family Violence
(1) Without limiting section 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary—
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person—

even if—
(c) he or she is responding to a harm that is not immediate; or
(d) his or her response involves the use of force in excess of the force involved in the harm or threatened harm.

(2) Without limiting the evidence that may be adduced, in circumstances where family violence is alleged evidence of a kind referred to in subsection (3) may be relevant in determining whether—
(a) a person has carried out conduct while believing it to be necessary for a purpose referred to in subsection (1)(a) or (b); or
(b) a person had reasonable grounds for a belief held by him or her that conduct is necessary for a purpose referred to in subsection (1)(a) or (b); or
(c) a person has carried out conduct under duress.

(3) Evidence of—
(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;
(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;
(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;
(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.

(4) In this section—
….
family violence, in relation to a person, means violence against that person by a family member;
violence means—
(a) physical abuse;
(b) sexual abuse;
(c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to—
(i) intimidation;
(ii) harassment;
(iii) damage to property;
(iv) threats of physical abuse, sexual abuse or psychological abuse;
(v) in relation to a child—

….

(5) Without limiting the definition of violence in subsection (4)—
(a) a single act may amount to abuse for the purposes of that definition;
(b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.

The sections were introduced into the Act by the Crimes (Homicide) Act 2005. That Act implemented some, but not all of the recommendations of the Victorian Law Reform Commission’s 2004 report ‘Defences to Homicide’.[33] When introducing the law, the Attorney-General at the time explained some of the concerns raised in the VLRC Report as follows:

The commission was concerned that the law of self-defence evolved to deal with violent confrontations between two or more males of roughly equal strength. Many cases of family violence involve very different circumstances and different dynamics.
For instance, under the existing common law, self-defence will not ordinarily apply unless the accused person is responding to an immediate attack. However, this is not an absolute requirement. It is simply an aspect of the broader issue of whether the accused person believed on reasonable grounds that it was necessary to act as he or she did.
Under the existing law, if there was no immediate attack, ordinarily a person could not believe that it was necessary to kill rather than taking other steps such as seeking help from the police or taking appropriate protective or evasive action. For example, if a person involved in any criminal activity believed that it was inevitable that a rival would kill him unless he killed his rival first, he would not be able to rely on the principle of self-defence: it would simply be murder.
The bill does not alter the current legal position, which is that the immediacy of the threat and the proportionality of the response to it are not separate issues, but are simply aspects of the key issues of whether the accused person believed it was necessary to do what he or she did and whether there were reasonable grounds for that belief.
However, section 9AH, which is inserted by clause 6 of the bill, affirms the court decisions that have acknowledged that in some cases, particularly those involving family violence, a lack of immediacy will not necessarily mean that the accused did not believe that his or her actions were necessary and based on reasonable grounds.[34]

[33]Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) (‘VLRC Report’). See also Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (Rob Hulls, Attorney-General).

[34]Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (Rob Hulls, Attorney-General).

The Attorney-General continued to explain that the sections were intended to ‘separate out’ the two tests of common law self-defence—first, whether the accused person had the relevant belief and, secondly, whether the person had reasonable grounds for that belief.[35]
[35]Ibid 1350.

At times, application of the sections has proved challenging for both judges and juries.[36] In Babic it was determined that the correct approach is as follows:

(a) if a person believed that it was necessary to perform the acts that otherwise constituted murder; or alternatively, the prosecution did not disprove that the person held that belief, in order to protect him or herself or another person from death or really serious injury, then the person is acquitted of murder pursuant to s 9AC and consideration turns to s 9AD;

(b) if the prosecution proves that the person had no reasonable grounds for the belief that the person held or that the prosecution did not disprove (and it is then assumed that the person held the belief), then the conduct will amount to defensive homicide.[37]

[36]Moustafa v The Queen (2014) 43 VR 418, 429 [57] (Redlich, Weinberg and Priest JJA) (‘Moustafa’).

[37]Babic (2010) 28 VR 297, 317–8 (Neave and Harper JJA).

In effect, a person’s conduct will amount to defensive homicide if he or she carried out conduct causing death, with an intention to kill or cause really serious injury, believing the conduct to be necessary to defend him or herself or another from death or really serious injury, but where he or she did not have reasonable grounds for that belief.[38] The maximum criminal penalty imposed is 20 years’ imprisonment, which is analogous to manslaughter. Alternatively, if the belief that was held was reasonable, the person will be acquitted.
[38]Moustafa (2014) 43 VR 418, 428, 430 (Redlich, Weinberg and Priest JJA).

It is clear that in the criminal context, although not necessarily consistent with the language of the section, the onus lies on the prosecution to disprove the relevant belief.[39]

Application of legal principles

[39]Babic (2010) 28 VR 297, 316–7 (Neave and Harper JJA); Moustafa (2014) 43 VR 418, 430; Explanatory Memoranda, Crimes (Homicide) Bill 2005 3.

The preponderance of evidence supports the conclusion that Ms Parashar inflicted the deceased’s wounds.[40] The nature of the wounds—forceful blows to the head with a cricket bat and repeated stabs to the chest area, one of which went four centimetres into the heart, inescapably points to Ms Parashar having the requisite intention of killing the deceased. While the elements of murder are prima facie satisfied, consideration must turn to ss 9AC and 9AD.
[40]See [38]–[47] above.

There is no direct evidence that at the time that Ms Parashar killed the deceased that she held a belief that her actions were necessary in order to defend herself, or someone else, from death or really serious injury. Mr Smith invited the Court to accept that the onus of disproving such a belief fell on the plaintiffs, just as it falls on the prosecution in criminal trials. Although I am inclined to agree with this submission, and as much appears to have been assumed in Re Plaister[41] with reference to the accused’s onus in proving insanity, it is unnecessary for this Court to conclusively determine the point. Rather, in my view, the evidence supports an inference that, on balance, Ms Parashar held the requisite belief.
[41]Re Plaister (1934) 34 SR (NSW) 547, 553 (Harvey CJ).

The definition of family violence provided in the Act is necessarily broad. It encompasses both physical abuse and psychological abuse, and it explicitly recognises that a number of acts may form a pattern of behaviour that amounts to abuse, although each individual act may be considered minor or trivial in isolation. During her marriage, Ms Parashar was subject to both physical and psychological abuse and, in the period leading up to 11 June 2012, circumstances were such that she was distressed and in fear, allowing the inference to be drawn that she believed her actions were necessary in order to defend herself from death or really serious injury.

Ms Parashar was married for five and a half years and for at least the first four years she was hit by the deceased on a weekly or twice weekly basis. Such physical abuse also involved slapping, pulling Ms Parashar’s hair, punching her in the head and placing a towel across her face. On the basis of Mr Parahsar’s statement, I accept that this violence continued ‘on occasions’ after the IVO was revoked. While I also accept that there may have been a six to eight month period in which the couple seemed happier, during the time that the plaintiffs were visiting the matrimonial home in May and early June of 2012, on at least one occasion, Ms Parashar was locked in a room with her face covered.

In regard to psychological abuse, according to the plaintiffs, the deceased ‘wanted a girl who would look after him, his home and his family’. The evidence suggests that fulfilling this role involved a degree of subservience and diminished control. Ms Parashar was ‘treated like a servant’ both when she lived with the plaintiffs and in the share house that was her first Australian home. Although she had telephone contact with her parents, she moved to Australia in relative isolation. On 20 November 2010, after asking the deceased who he was speaking to on the telephone, Ms Parashar was told to ‘go away’, that ‘it was not [her] home’ and she was taken to a bedroom. Her family was a topic of verbal abuse. The following day, in another example of controlling behaviour, a towel was held over her face as part of the deceased’s physical attack. Again, sometime in May 2012 Ms Parashar’s face was covered while she was locked in a room. Her lack of control is also evident in relation to the couple’s finances. Ms Parashar initially had to pay her income into a joint account and beg the deceased for money. Although once the IVO was revoked the deceased afforded her greater financial independence, the plaintiffs, who appeared influential in relation to the deceased’s behaviour, continued to hold certain beliefs as to Ms Parashar’s separate bank account.

Against this background, in May and June of 2012, circumstances were such that tension in the relationship was heightened. Two interrelated sources of conflict were control of finances and exchanges that the deceased had with the plaintiffs. Both were present during this period. The plaintiffs visited one to two months after the couple had ‘wasted money’ on a trip to Bali. During the visit, they told Ms Parashar that she was to transfer the funds from her bank account and pay her income to the deceased, otherwise she would be compelled to leave the deceased. Divorce papers were going to be signed. On the evening of 10 June 2012, conflict had escalated to a point where in addition to being sick and having sought the forgiveness of the plaintiffs, Ms Parashar was upset, crying, in great fear and unsure of what was going to happen. The plaintiffs had just left the matrimonial home, and she had previously identified that the deceased became violent after interactions with his parents.

While I accept that it was Ms Parashar who applied to withdraw the IVO, and police records do not demonstrate attendance at the matrimonial home other than on 21 November 2010, Ms Parashar’s own account was that she loved her husband, and ‘family violence, by its very nature, often occurs behind closed doors’.[42] Further, while Ms Parashar herself may have been a source of physical or verbal abuse towards the deceased, this does not negate the abuse that she sustained.
[42]Director of Public Prosecutions v Williams [2014] VSC 304 (27 June 2014) [20] (Hollingworth J).

The deceased was on his bed when attacked, perhaps initially asleep. The attack involved two weapons and was violent. There is no evidence that the couple struggled and Ms Parashar did not sustain any injuries. While these findings lessen the likelihood that Ms Parashar believed her actions were necessary in order to defend herself from death or really serious injury, they must, as recognised by s 9AH(1)(c) and (d), be viewed in the context of the family violence identified in paragraphs [90]–[93] above. As stated in the VLRC Report which informed adoption of the section:

[S]elf-defence is most usually associated with a response to an immediate attack or threat of serious injury, involving two people of relatively equal strength who may or may not know one another. The difficulty for women in raising self-defence is that their actions are more likely to be in response to an ongoing threat of serious injury by someone with whom they have an abusive relationship, rather than an immediate response to a physical attack … Many homicides by women in circumstances involving prior violence take place in non-confrontational circumstances, such as when the deceased is asleep or has his guard down, and almost all involve the use of a weapon of some kind.[43]

[43]VLRC Report, 134 (citations omitted).

Similarly, Hollingworth J has previously given the following summary during sentencing remarks for a defensive homicide:

The final act or acts of the deceased may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased.
… [I]n this case, the court heard detailed (and largely unchallenged) evidence from Professor Patricia Esteal, an academic and author. Since the late 1980s, she has conducted research, taught and written extensively on family violence, partner rape, and women who kill their violent partners. She gave evidence about the complex and varied manifestations and dynamics of family violence, and the reasons why women often do not leave their violent partners.
Professor Esteal also spoke about the use of weapons by female victims of family violence against their male partners. Her research shows that women in such a situation traditionally do not use the same weapon as their male attacker. A man usually uses his hands or his body, his physical force, against his female partner; whereas a woman invariably uses a weapon (including guns, knives and axes), out of fear that she would be likely to be overpowered and hurt even more by him if she only used her hands or body. It is also not uncommon in those cases for the woman to inflict multiple strikes with a knife or sharp instrument—substantially more strikes than may, objectively, have been required to incapacitate the man.[44]

[44]Director of Public Prosecutions v Williams [2014] VSC 304 (27 June 2014) [32]–[34].

Reflecting such issues, s 9AH affords greater flexibility regarding the imminence of a threat or issues of proportionality in the context of family violence. In this case, the physical and psychological abuse that Ms Parashar suffered, combined with the presence of triggers in the weeks leading up to 10 June 2012 and her emotional state that evening, allow the inference to be drawn that she genuinely believed that she had to attack the deceased violently in order to defend herself from death or really serious injury. Accordingly, I am satisfied that her conduct did not amount to murder.

I reject the plaintiffs’ submission that Ms Parashar’s suicide somehow indicates an element of guilt that would not have existed if she were in genuine fear at the time of the attack. In my view, it is inconceivable that having killed her husband, she would be capable of weighing up her degree of fear in order to determine whether she should commit suicide. Rather, while I accept that Ms Parashar’s suicide indicates a level of guilt, it perhaps equally reflects her distress and emotional instability at the time.

Having determined that Ms Parashar held the requisite belief and did not murder the deceased, it is necessary to consider whether her belief was reasonable in all of the circumstances. In my view, as the evidence indicates that Ms Parashar attacked the deceased while he was lying on the bed, possibly asleep and unarmed, violently using two weapons, her belief that the actions were necessary in order to defend herself from death or really serious injury was not reasonable. The evidence of family violence, although significant, does not go so far as inferring that Ms Parashar’s belief was reasonable in the circumstances. I note, however, that were there additional evidence as to the history of family violence, the events leading up to Ms Parashar’s actions and her relative isolation, a different finding may have been open. As the evidence stands, I am satisfied that Ms Parashar’s conduct in killing the deceased was an act of defensive homicide.

Was Ms Parashar’s criminal culpability such that the forfeiture rule should apply?

In the context of defensive homicide, the test from Edwards to determine whether the forfeiture rule should apply is:

[D]oes the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death?[45]

[45]Edwards [2016] VSCA 28 (10 March 2016) [66] (Whelan JA).

The test has received limited judicial consideration.[46] Further, when formulating the approach, Whelan JA (with whom Kyrou JA agreed) did not expound any particular meaning for ‘criminal culpability’. I take the phrase to mean the degree to which an individual can be blamed for his or her criminal conduct.[47] While it is clear that each case will turn on its own facts, relevant considerations in determining criminal culpability in Edwards were:
[46]See generally Westpac Life Insurance Services Ltd v Mahony [2016] FCA 1071 (2 September 2016) [20] (Allsop CJ); Re Novosadek [2016] NSWSC 554 (5 May 2016) [20] (Young AJ).
[47]See also Dunbar v Plant [1998] Ch 412; [1997] 4 All ER 289, 312–3 (Phillips LJ).

(a) the circumstances of the death, including:

(iv)the violence, use of multiple weapons, injuries inflicted and the existence of defensive wounds;

(v) the intention to kill the deceased or cause him really serious injury. Although Mrs Edwards acted based upon a belief that her actions were necessary to defend herself, the belief was not reasonable in the circumstances. The thirty wounds inflicted were disproportionate to the threat that her husband posed;

(vi)the spontaneity of the actions in highly emotional circumstances;

(b) the twelve year history of family violence, including the deceased’s violence against other family members and that fact that an IVO was in place at the time of the death;

(c) the conduct of Mrs Edwards:

(i) after the death in giving false evidence and in giving an account of events the accuracy of which the sentencing judge had serious reservations about;

(ii) previously, in that she had a prior conviction of assault against the deceased; and

(d) Mrs Edwards’ significant psychiatric history. In the year prior to the death she had been admitted into psychiatric care twice, the first associated with an episode of mania and the second due to self-harm. In the week leading up to the death she was described as having a bad mental state, to be acting irrationally, not coping and having deteriorated mentally. After the death she was initially unfit to be interviewed.[48]

[48]Edwards [2016] VSCA 28 (10 March 2016) [80] (Whelan JA).

Further insight into relevant considerations can be gained from cases to which Whelan JA referred that had previously taken a discretionary approach to the forfeiture rule. Specifically, his Honour determined that the circumstances in Edwards were closer to Re Stone,[49] rather than Public Trustee v Evans[50] and Re Keitley.[51]
[49]Re Stone [1989] 1 Qd R 351.
[50]Public Trustee v Evans (1985) 2 NSWLR 188.
[51]Re Keitley [1992] 1 VR 583.

In Re Stone, the respondent strangled his wife to death. He was acquitted of murder and instead found guilty of manslaughter on the ground of diminished responsibility. He was sentenced to ten years’ imprisonment and released on parole after four years. In a subsequent civil proceeding, the executor of the wife’s estate claimed that as a consequence of the husband’s actions, his interest in the matrimonial property by way of survivorship was held on trust for the primary beneficiaries of the wife’s will, namely the couple’s two children. Although details of the circumstances of the killing were not before the court, McPherson J held that given the sentence of ten years’ imprisonment, they ‘cannot be regarded as involving criminality in only a “very minor degree”’.[52]
[52]Re Stone [1989] 1 Qd R 351, 354.

Public Trustee v Evans was a case in which the respondent shot and killed her husband in the context of family violence. The husband had assaulted the respondent’s six year old daughter, assaulted the respondent and dragged her outside to a shed. He then told the respondent that he was going to kill the children, before returning to the house and placing a loaded gun on the kitchen table. The respondent left the shed and was told to go back by her husband, who threw a bottle, knife and forks at her. She then entered the house, picked up the gun from the kitchen table and shot her husband as he was walking towards her. The respondent was charged with manslaughter, but the trial judge dismissed the jury prior to verdict as in all the circumstances, only a nominal punishment was considered sufficient. The husband had died intestate and the administrator of his estate subsequently sought advice from the court as to whether the respondent could take her interest in her husband’s estate. Young J determined that the respondent was not debarred from taking her interest in his estate.[53]
[53]Public Trustee v Evans (1985) 2 NSWLR 188, 193.

Circumstances of family violence were also evident in Re Keitley. There, the relationship between a husband and wife, who also had an infant child, was described as follows:

[P]eriods of mutual affection and dependence were all too frequently punctuated by violence or threats of violence directed by the [husband] to his wife. The cumulative effect of the [husband’s] behaviour was to engender in his wife a very real and understandable fear of him.[54]

[54]Re Keitley [1992] 1 VR 583, 584 (Coldrey J).

The wife had contemplated suicide but was encouraged by her psychologist to leave her husband instead. When she told her husband that she was leaving he threatened to kill her and she heard him ‘rattling a cutlery drawer in which he kept a boning knife with which he had previously menaced her’.[55] The wife had little recollection of the events that followed, in which she shot and killed her husband. She did recall, however, that her ‘mind was going absolutely crazy’ and she was thinking ‘how do I get out of here? How do I get my baby out safely?’.[56] After pleading guilty to manslaughter, the wife was sentenced to a three year community based order, the trial judge finding that her level of personal culpability was much less than ordinarily encountered. In the civil proceeding which followed Coldrey J agreed, finding that the wife was not precluded from inheriting in accordance with her husband’s will. Specifically, his Honour was satisfied that:

[T]he killing had its genesis in the ongoing domestic violence experienced by [the wife] at the hands of [her husband]. It 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.[57]

[55]Ibid.

[56]Ibid.

[57]Ibid 587.

Such cases reflect a relatively high threshold for preclusion of the forfeiture rule in the context of family violence. Certainly, the criminal conduct appears to be nearing that of self-defence. A similarly high threshold is reflected in the English case of Re K.[58] There, a woman had been isolated from her friends and subject to repeated, unpredictable and savage attacks by her husband. The attacks had left her ‘terrified of the possibility of a recurrence’.[59] Up until the point that she shot and killed her husband, her conduct was without reproach—she encouraged her husband to seek treatment for mental illness and stayed with him out of concern of what would happen to him if she left. At the time that she killed him, her husband was verbally abusing her and she was attempting to escape.[60] The Court of Appeal, in modifying the forfeiture rule pursuant to statute, determined that it would be unjust if the forfeiture rule precluded the woman from benefitting under her husband’s will.[61]
[58]Re K [1985] 2 WLR 262.
[59]Ibid 271.
[60]Ibid 268.
[61]Ibid 277.

Looking more generally at cases concerning the unlawful killing of a family member, modification of the forfeiture rule has tended to involve evidence of mental illness and diminished responsibility[62] or a degree of negligence.[63] As such, the cases are of limited assistance in the current circumstances.

Determining the criminal culpability of Ms Parashar

[62]See, eg, Leneghan-Britton v Taylor [1998] NSWSC 218 (28 May 1998); Re Novosadek [2016] NSWSC 554 (5 May 2016) [61] (Young AJ).

[63]See, eg, Re Land (deceased) [2007] 1 All ER 324; Miliankos v Miliankos (Unreported, Supreme Court of Victoria, Nathan J, 24 March 1994).

Determining where the line should be drawn as to the level of criminal culpability that precludes application of the forfeiture rule is a difficult task. It is clear that as in Edwards, the current circumstances are not readily analogous to Re Keitley and Public Trustee v Evans. In those cases, women were actively avoiding an immediate threat to both themselves and their children. In Edwards, reservations existed as to the account that Mrs Edwards gave regarding the circumstances of the death and, in particular, the immediate threat that her husband posed. Of further relevance were the violent and intentional circumstances of the death and Mrs Edwards’ previous conviction. Although she entered a guilty plea, had a diagnosed mental illness and suffered a significant history of family violence, these factors did not reduce Mrs Edwards’ culpability to such an extent that the forfeiture rule was precluded from applying. It is clear, however, that each case is to turn upon its own facts.

In the current circumstances, a number of factors point toward a high degree of criminal culpability. Ms Parashar intended to kill the deceased or cause grievous bodily harm. Although her conduct was based upon the belief that her actions were necessary in order to defend herself from death or really serious injury, her belief was unreasonable in the circumstances. She killed the deceased violently, hitting his head with a cricket bat with such force that his skull was broken in multiple places and stabbing him numerous times, including through the heart, lung and liver. In this regard, I accept that the degree of violence is comparable to that identified in Edwards. The deceased may have been asleep at the time of the attack, at the very least, he was lying on the bed. Defensive wounds to his arms suggest that at some point during the attack he was conscious.

I reject the plaintiffs’ submission, however, that in killing the deceased in such a manner Ms Parashar’s conduct was cowardly. In my view, such a submission is ignorant of the dynamics of family violence as found in the VLRC Report and does little to progress the appropriate consideration of such a complex issue.

As already stated in these reasons, the degree of violence observed in this case is not unusual in circumstances of family violence. Certainly, Edwards, Director of Public Prosecutions v Williams[64] and R v Creamer[65] all provide examples of violence that prima facie appeared disproportionate to any immediate threat posed. The latter, in which the accused caused numerous head injuries with a wooden club in addition to stabbing her husband, bears a particular resemblance to the present facts. The issue is how the violent and intentional death should be viewed in all of the circumstances.
[64]Director of Public Prosecutions v Williams [2014] VSC 304 (27 June 2014).
[65]R v Creamer [2011] VSC 196 (20 April 2011). An appeal against the sentence was dismissed in Creamer v The Queen (2012) 221 A Crim R 284; [2012] VSCA 182 (16 August 2012).

Ms Parashar travelled to Australia on account of her marriage. She was subject to both physical and psychological abuse. This is most apparent in the first four years of her marriage, in which the deceased physically abused her and at times treated her as a servant and limited her financial control. I have accepted that violence continued after 21 November 2010 ‘on occasions’, particularly as evidenced by at least one instance in May 2012 during which Ms Parashar was locked in a room with her head covered. Ongoing arguments, the presence of the plaintiffs in the matrimonial home and the existence of divorce papers indicate that the period leading up to the deceased’s death was particularly volatile. Additionally, Ms Parashar was sick and her requests to travel to the airport with her husband and the plaintiffs were denied. She sought forgiveness from the plaintiffs and was handed $1,100 as an early birthday gift, but remained crying and upset. She was distressed on the telephone to her parents and had previously identified that the deceased became more violent after interactions with his parents. Certainly, the circumstances suggest that Ms Parashar was gripped by a degree of ‘emotional turmoil’, as seen, for example, in Re Keitley.

As far as Ms Parashar’s conduct prior to killing the deceased is relevant, I accept that at times she may have been a source of abuse towards the deceased, the plaintiffs and, on one occasion, Dr Madan and his wife. Her action in opening up a separate bank account perhaps indicates a willingness to resist the expectations of the deceased and the plaintiffs, and it may be that this resistance extended to abuse. In my view, however, any abuse emanating from Ms Parashar weighs little into the consideration of how blameworthy her conduct was in killing the deceased. It has not been suggested, for example, that Ms Parashar was acting upon any hostility towards the deceased. Rather, the inference drawn is that she was acting in fear for her safety.

Similarly, although Ms Parashar’s conduct after killing the deceased is relevant, I afford it limited weight. On one view, committing suicide evinces a degree of culpability for her conduct, alternatively, however, it may also reflect the extreme distress and irrationality that Ms Parashar was experiencing at the time.

The factors pointing toward low moral culpability are the overlapping issues of family violence and Ms Parashar’s emotional state. Weighing these factors against the circumstances of the deceased’s death is particularly challenging. Certainly, I agree with the comments of Coghlan J in R v Creamer, that ‘[i]t is very difficult to determine a scale by which to measure family violence, in deciding where on such a scale any particular case should be placed’.[66] As already stated, the current circumstances are not analogous to Public Trustee v Evans and ReKeitley. The evidence does not support the finding that Ms Parashar was acting in response to an immediate threat to her safety. In my view, however, this is not determinative of her criminal culpability. Rather, the difficulty in this case is identifying the true extent of family violence in the last eighteen months of the marriage and Ms Parashar’s mental state at the time that she killed the deceased.
[66]R v Creamer [2011] VSC 196 (20 April 2011) [37].

Prior to November 2010 a history of both physical and psychological abuse is apparent, and I have inferred that violence continued on occasions in the period after the IVO was revoked and on at least one occasion in May 2012. Further, in the presence of established sources of conflict, the relationship appeared volatile in the weeks leading up to 11 June 2012 and Ms Parashar was in great fear. The circumstances of the case, however, are such that these are the only key facts before the Court as to the extent of violence in the last 18 months of the marriage. While the plaintiffs’ opinions as to finances and their presence in the matrimonial home contributed to the volatility of the relationship, it is not clear, for example, to what degree the deceased acted in response to this influence. Further, there is an absence of expert evidence regarding Ms Parashar’s mental stability at the time of the deaths and any impact that Hashimoto’s thyroiditis, as identified in her autopsy, may have had on her mental health.

The issue is finely balanced. Although I have inferred in all of the circumstances that Ms Parashar held the belief that her actions were necessary in order to protect herself from death or really serious injury, with some difficulty, I find that her criminal culpability is not so low as to preclude application of the forfeiture rule. On the evidence, the degree of family violence, particularly in the period immediately leading up to Ms Parashar’s criminal conduct, does not reduce her blame for the deceased’s death to the requisite level. However, I note that were Ms Parashar alive today to give evidence, the outcome of this application may have been different.

Conclusions

Ms Parashar killed the deceased in an act of unlawful homicide. Although she survived the deceased and would otherwise have had an interest in his estate in accordance with s 51(1) of the Administration and Probate Act 1958, her criminal culpability is such that the forfeiture rule precludes her from taking her interest.

Accordingly, I order that a grant of letters of administration be made in favour of the plaintiffs, subject to any requirements of the Registrar of Probates, and that the costs of the amicus curiae be paid out of the estate of the deceased on an indemnity basis.

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[2017] VSC 81

3 March 2017