Rivers v Rivers

RIVERS v RIVERS & ORS
[2002] SASC 437
Full Court: Duggan, Williams and Martin JJ

DUGGAN J. This is a case stated for the consideration of the Full Court pursuant to s 49 of the Supreme Court Act 1935.
The questions raised in the case stated require the court to consider whether the rule under the general law that the felonious killer of a person is precluded from inheriting property from that person applies in certain civil proceedings which have been commenced in the Supreme Court.
The litigation arose in the following way. Donald Graeme Rivers (the deceased) died from a bullet wound on 4 July 1997. It is not in dispute that the bullet was fired from a rifle held by the deceased’s wife, Mrs Ma Gina Orlane Rivers, who is the first defendant in the civil proceedings. The first defendant has admitted in the pleadings that she was holding the rifle at the time, but has asserted that she did not deliberately point it at the deceased. She has admitted applying pressure to the trigger, but she has denied that she had any intention to kill her husband or that she was acting recklessly at the time. She claims she thought the rifle was unloaded.
The first defendant was tried in the Supreme Court on an information alleging that she murdered the deceased. She was acquitted of murder and manslaughter.
The deceased died intestate with an estate exceeding $10,000. Section 72G of the Administration and Probate Act 1919 provides that if the value of an intestate estate exceeds $10,000, the deceased’s spouse is entitled to the sum of $10,000 and to one-half of the balance of the estate.
The plaintiff in the proceedings is the son of the deceased by an earlier marriage. In the statement of claim the plaintiff seeks the following declarations:
“8.1That the first defendant intentionally or recklessly caused the death of the deceased;
8.2In the alternative to 8.1, that the first defendant committed an unlawful and dangerous act which resulted in the death of the deceased;
8.3As a consequence of the matters pleaded herein the first defendant is not entitled to any benefit in the estate of the deceased and that any interest in that estate to which the defendant would otherwise be entitled at law or in equity be deemed to have been forfeited by her;
8.4That that proportion of the estate to which the first defendant would otherwise be entitled be distributed equally between the children of the deceased referred to in paragraph 2 hereof.”
The case stated reserves the following questions for the consideration of the court:
“1Is the Plaintiff estopped or otherwise precluded in point of law from obtaining the declarations sought in:
1.1   paragraph 8.1;
1.2   paragraph 8.2;
1.3   paragraph 8.3;
of the Second Amended Statement of Claim?
2      Would it:
2.1     constitute an abuse of process of the Court; or
2.2     be contrary to public policy;
to allow the Plaintiff’s action to proceed to trial?
3Is the Plaintiff precluded as a matter of law, by virtue of Part 3A of the Administration and Probate Act 1919 (SA) from obtaining;
3.1   the declaration sought in paragraph 8.3 of the Second Amended Statement of Claim; or
3.2   a declaration that the First Defendant holds any interest in the intestate estate of the deceased to which she might otherwise be beneficially entitled (at present or upon distribution of same) upon a constructive trust for the other parties to the action, or upon some other, and if so what, constructive trust?
4If the answer to the questions in paragraph 1, or alternatively paragraph 2, and/or in the further alternative paragraph 3 hereof is ‘yes’, is the First Defendant entitled to an order that the Plaintiff’s action against her be dismissed or permanently stayed?”
The questions thus posed give rise to a number of issues associated with the operation of the so-called forfeiture rule which has been variously attributed to the common law and equity. The rule found its way into the law after the passing of the Forfeiture Act 1870 which abolished the old rule providing for forfeiture in the event of conviction for treason or felony (Dugan v Mirror Newspapers Limited (1979) 142 CLR 583 at 602; Troja v Troja (1994) 33 NSWLR 269). The judge-made law which followed the passing of the Forfeiture Act was based on the precept that a person could not take advantage of his or her own wrong doing. This was expressed succinctly by Hamilton LJ in In the Estate of Hall (1914) P 1 when he said:
“A man shall not slay his benefactor and thereby take his bounty.”
In the joint judgment of Dixon, Evatt and McTiernan JJ in Helton v Allen (1940) 63 CLR 691 at 709, the forfeiture rule was described as “the rule excluding a homicide from any benefit under the will or intestacy of the person who died at his hands”. In the course of referring to the history of the rule their Honours said:
“Its first clear formulation was left to Cleaver’s Case (1892) 1 QB 147, which arose out of the conviction of Mrs Maybrick. It is placed upon a principle of public policy, and it was said that no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person (per Fry LJ (1892) 1 QB at p156. In In the Estate of Hall (1914) P 1 the doctrine was finally established and held to include not only murder but manslaughter. There Hamilton LJ said that the principles could only be expressed in the wide form: ‘It is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter’ (1914) P at p7. See, further, In re Sigsworth (1935) Ch 89 and Beresford v Royal Insurance Co Ltd (1938) AC 586.”
Helton’s case is of particular importance for present purposes because of the significance which the first defendant seeks to draw from the fact that she was acquitted of murder and manslaughter. Helton was charged with the murder of a testatrix who had bequeathed the greater part of her estate to him. He was acquitted. The testatrix’s mother then commenced proceedings in which she sought to prevent Helton from taking under the will. She alleged, inter alia, that Helton had unlawfully brought about the death of the testatrix and that he was therefore disentitled to any benefits under the will.
The jury in the civil proceedings found that Helton unlawfully killed the testatrix. The court then declared that he was not entitled to hold or enforce any right under the will.
The appeal to the High Court was allowed on grounds which related to the trial judge’s direction to the jury. However, the importance of the case for present purposes is that the joint judgment previously referred to dealt with the question as to whether the acquittal in the criminal trial affected the civil proceedings in any way. I will return to this question later in these reasons.
The principal contentions put forward in argument by Mr Wells QC, for the first defendant, were as follows:
1     Evidence of the first defendant’s acquittal is admissible in the civil action and precludes proof to the contrary. The civil action would have to be dismissed upon proof of the acquittal.
2     The forfeiture rule does not apply in any event to the civil proceedings in this case because it has been subsumed under the provisions of the Criminal Assets Confiscation Act 1996 (the Confiscation Act).
3     The forfeiture rule cannot apply to an intestacy because of the intestacy provisions in the Administration and Probate Act 1919.
4The common law principles with respect to abuse of process at their current stage of development would not permit the application of the forfeiture rule in a case where the claimant has been found not guilty in the criminal jurisdiction of the material crime.
5The remarks made in the joint judgment in Helton’s case concerning the forfeiture rule were not part of the ratio decidendi of the case and this court is not bound by them.
6Alternatively, the reasoning on this issue in the joint judgment in Helton’s case is wrong and should not be followed or applied in the present case.”
The Confiscation Act
Mr Wells placed particular emphasis on the argument that the operation of the forfeiture rule has been subsumed under the provisions of the Confiscation Act. According to the argument, the Confiscation Act operates to the exclusion of the general law forfeiture rule. Mr Wells contended that, whereas the forfeiture rule is not mentioned expressly in the Confiscation Act, the effect of the Act is to provide a statutory answer to circumstances which, formerly, would have given rise to the operation of the forfeiture rule. It was argued that the Act evinces a legislative intention to replace the forfeiture rule with the statutory scheme by addressing the public policy considerations underlying the forfeiture rule and creating a scheme which is inconsistent with any general rule dealing with aspects of the same public policy.
In order to evaluate these arguments it is necessary to have regard to the scheme of the Act. The predecessor of the Confiscation Act was the Crimes (Confiscation of Profits) Act, 1986. The long title of that Act described it as “An Act to provide for the confiscation of profits of crime; to make related amendments to the Controlled Substances Act 1984; and for other purposes”.
The impetus for this and similar legislation in other jurisdictions[1] arose out of concern with the escalation of illegal drug trading. However, the original legislation was extended to profits obtained from other areas of serious criminal conduct and the current Act adopts the same approach. The operation of the original Act was reviewed in 1994 and recommendations were made with a view to putting the Act on an improved commercial basis. The present Act came into operation on 7 July 1997.
[1] Proceeds of Crime Act 1987 (Cth); Confiscation of Proceeds of Crime Act 1989 (NSW); Crimes (Forfeiture of Proceeds) Act (NT); Crimes (Confiscation) Act 1989 (Qld); Crime (Confiscation of Profits) Act 1993 (Tas); Confiscation Act 1997 (Vic); Criminal Property Confiscation Act 2000 (WA).
Section 8 of the Confiscation Act empowers a court to order the forfeiture of tainted property on the application of the Director of Public Prosecutions.
Section 4 defines “tainted property”:
“4     (1)    Property is tainted property if the property –
(a)    is acquired for the purpose of committing a forfeiture offence; or
(b)    is used in, or in connection with, the commission of a forfeiture offence; or
(c)     is the proceeds of a forfeiture offence.
(1a) If tainted property is converted (by sale, exchange or in some other way) into other property, the other property is also tainted.
(2)    If a person acquires title to tainted property in good faith and for valuable consideration, the property ceases to be tainted property.
(3)    All property of a party to the commission of a serious drug offence is presumed to be tainted.
(4)    However –
(a)property is excluded from the ambit of the presumption if it is established, on the balance of probabilities, that it was acquired by the party more than 6 years before the commission of the offence on which the proceedings under this Act are based, and
(b)the presumption may be rebutted, insofar as it relates to a particular item of property, by establishing, on the balance of probabilities, that the property is not tainted.”
“Proceeds” of an offence means property derived directly or indirectly from the commission of an offence (s 3). The Act refers to “local forfeiture offences” and “interstate forfeiture offences”. A “local forfeiture offence” means an indictable offence under the law of the State, a serious drug offence against the law of the State and certain specified offences under various Acts. An “interstate forfeiture offence” means an offence that could, on conviction of the offender, give rise to an order for the forfeiture of property, or a pecuniary penalty order, under the law of the Commonwealth or a reciprocating State.
“Property” is defined as -
“Real or personal property (tangible or intangible) including –
(a) a chose in action; and
(b) an interest in property.”
Subject to an exception which is not relevant to the present case, a forfeiture order cannot be made unless a person has been convicted of a prescribed offence or the commission of a prescribed offence has been established beyond reasonable doubt in the proceedings under the Act (ss 12 and 13).
Subject to situations in which a person obtains a benefit in good faith and for valuable consideration, a forfeiture order may be made against a person who benefits from the commission of the offence (s 9). A court must make an appropriate forfeiture order if satisfied that forfeiture is necessary to prevent the defendant from retaining the profits of criminal activity (s 10).
In the event that a court orders the forfeiture of specified property, the title to the property vests in an administrator appointed by the Attorney-General (s 17). The administrator may sell forfeited property or convert it into money (s 18). Section 19(1) provides:
“19 (1) Subject to any direction of the court by which the forfeiture is imposed –
(a)money forfeited under this Act or obtained by realisation of other property forfeited under this Act; or
(b)money deriving from the enforcement in the State of an order under a corresponding law registered in the State,
must be applied towards the costs of administering this Act (including salary and other costs associated with the employment of the Administrator) and the balance must be paid into the Criminal Injuries Compensation Fund.”
In certain circumstances, property seized under the Act is to be returned to the person entitled to possession (s 29).
It is apparent, therefore, that the legislation enables orders to be made for the confiscation of property used in the commission of, or obtained from, certain unlawful acts and directs that the property be used for the purposes of the Criminal Injuries Compensation Fund and certain other programmes and administrative functions.
According to Mr Wells’ argument, the legislature, in passing the Confiscation Act, has reclaimed the operation of the public policy principle upon which the forfeiture rule was based and has incorporated it into legislation which extends powers of confiscation to other factual situations. Mr Wells traced the steps whereby, according to his argument, the forfeiture rule comes within the wording of the Act. He said that a person found guilty of murder or manslaughter has committed a “forfeiture offence” as defined in s 3 of the Act. Furthermore, any inheritance which might be due to the offender under the intestacy provisions would be “an interest in property”, a component in the definition of “property” in s 3. The inheritance would be “proceeds” of an offence because “proceeds” includes property derived directly or indirectly from the commission of the offence. The inheritance would be “tainted property” as it would be “proceeds of a forfeiture offence”.
However, Mr Wells argued that a confiscation order could not be made in the present case as there had been an acquittal and not a conviction as required by s 12.
In my view, the provisions of the Confiscation Act are far removed from the operation of the general law forfeiture rule. The policy of the Confiscation Act is to enable the government to gain access to property used in some way to commit crime or property obtained from crime; to obtain orders for confiscation of such property and to use the proceeds of offences for purposes associated with the consequences of crime, such as the compensation of victims.
It might be said that the principle that an offender should not benefit from his or her crime is part of the policy underlying the Act. However, the nature and purpose of the legislation is wider than this element of its policy. Any similarities in policy which might exist between the Act and the forfeiture rule do not advance the argument that the Act was intended to replace the forfeiture rule.
This is not a case in which an established general law rule is incorporated into a statute and accorded a broadly similar effect by force of the legislation. The forfeiture rule denies inheritance. If the Confiscation Act applies to the same situation, it would appear to permit property to pass to the offender, but then render it liable to be confiscated. Instead of a will or the intestacy provisions directing the manner in which a failed bequest is to be dealt with, the property is forfeited to the Crown. Caution is required against “too ready an acceptance that a reform plainly directed to a different issue may, almost by accident, have affected a settled rule” (Thompson v Australian Capital Television Pty Ltd& Ors (1994) 127 ALR 317 at 329).
It is of some relevance to have regard to relatively recent developments concerning the forfeiture rule in other jurisdictions. The forfeiture rule has been modified by statute in the United Kingdom (Forfeiture Act 1982 (UK)). Waddell CJ in Eq sitting at first instance in Troja v Troja (unreported 15 February 1993, BC 9302068 noted (1993) 67 ALJ 386) suggested that New South Wales should enact similar legislation. The New South Wales Parliament responded by passing the Forfeiture Act (NSW) 1995. Earlier, the Australian Capital Territory passed similar legislation (Forfeiture Act 1991 (ACT)). Both Acts empower the court to modify the effect of the forfeiture rule. It is significant that, at the time of the passing of the New South Wales and Australian Capital Territory Acts, there was legislation in each of these jurisdictions in terms similar to the Criminal Assets Confiscation Act 1996 (SA). In particular, all of the Acts defined “tainted property” in a similar manner. Furthermore, in the Court of Appeal judgments in Troja v Troja (supra) where the forfeiture rule was examined in detail there was no suggestion that it had ceased to exist as a separate rule following the passing of the Confiscation of Proceeds of Crime Act 1989 (NSW). It would appear that in these jurisdictions it has been accepted without question that the forfeiture rule remained despite the passing of far reaching legislation empowering the courts to make confiscation orders in relation to the proceeds of crime.
In summary, therefore, the Confiscation Act provides a comprehensive scheme for the confiscation of proceeds of crime and property used in the commission of crime. The forfeiture rule prevents a person from exercising a right to property which could have been exercised if it had not been for the fact that the death of the owner of the property had been the result of the unlawful act of the claimant. In my view, the different purposes served by the scheme of the Act on the one hand and the forfeiture rule on the other leave no room for the argument that the forfeiture rule has been subsumed under the Act. Regard must also be had to the fact that the forfeiture rule is a well established general law rule. A statute is to be construed in conformity with the common law unless the contrary intention is manifested (American Dairy Queen (Queensland) Pty Ltd (1981) 147 CLR 677 at 682).
The forfeiture rule and the intestacy provisions
The next argument advanced by the first defendant is that, in any event, the forfeiture rule does not apply to intestacies. According to the argument, the provisions in Part 3A of the Administration and Probate Act 1919 which regulate the distribution of assets in the event of an intestacy are mandatory to the extent that they cannot be overridden by the forfeiture rule.
This submission is contrary to a long line of judicial authority. A convenient starting point is the case of In Re Sigsworth: Bedford v Bedford [1935] 1 Ch 89. Clauson J was required to answer a question on the assumed premise that a woman had been murdered by her son and had died intestate. The question for decision was whether the forfeiture rule prevented the son from benefiting under the intestacy provisions of the Administration of Estates Act, 1925 (UK). Clauson J held that the forfeiture rule applied. He said (92):
“The question, however, which I have to decide is whether the principle grounded on public policy which prevents a sane murderer from benefiting under the will of his victim applies with equal force to the case of the victim dying intestate so as to preclude the murderer (or his personal representative) from claiming, under the provisions of s 46 of the Act, the property in respect of which his victim died intestate.
In my judgment the principle of public policy which precludes a murderer from claiming a benefit conferred on him by his victim’s will precludes him from claiming a benefit conferred on him, in a case of his victim’s intestacy, by statute. The principle (to quote the language of Fry LJ) must be so far regarded in the construction of Acts of Parliament that general words which might include cases obnoxious to the principle must be read and construed as subject to it. This view of the law is adopted by Fry LJ in Cleaver’s case [1892] 1 QB 147, 156 and by Farwell J in In re Pitts [1931] 1 Ch 546, 550, and must in my judgment prevail over the view taken by Joyce J in In re Houghton [1915] 2 Ch 173, 177; and whether or not the opinions so expressed are binding on me, I agree with them and adopt them as my own.”

In the case of Houghton, referred to by Clauson J, a man was tried and convicted for the murder of his brother, but found to be insane when he committed the act. A further charge of murdering his father was not proceeded with in the light of the verdict at the trial. The father died intestate. Joyce J decided that the forfeiture rule would not have applied on the basis that the man would have been found insane at the time of the killing of his father if he had been tried for the offence. He added (178):
“There is still less reason, if possible, why he should not take his proper share under the intestacy of his father, the distribution of whose property is regulated by the positive provisions of the statute law.”
Earlier in his judgment, Joyce J noted that there were conflicting decisions in the United States of America on the question of whether a murderer can take a distributive share under the intestacy of his victim. He decided to accept the reasoning of one of the American cases, Carpenter’s Estate 59 Am. St. Rep. 765, in which the judge said:
“The intestate law casts the estate upon certain designated persons, and this is absolute and peremptory, and the estate cannot be diverted from those persons and given to other persons without violating the statute. There can be no public policy which contravenes the positive language of a statute.”
As appears from the passage quoted above, Clauson J rejected this approach.
In the case of In Re Pitts [1931] Ch D 546 Farwell J also expressed doubt about the view taken by Joyce J in Houghton. He said:
“In In re Houghton [1915] 2 Ch 173 Joyce J thought that the rule did not apply to an intestacy, as the intestate succession was settled by statute. His observations on the point were only obiter, as the murderer was insane, but that may be the law, though it is difficult to see why. If public policy prevents a murderer from taking under his victim’s will, why should it not prevent him from taking under his victim’s intestacy? If it had been necessary to decide the point I should have thought that the views of Fry LJ in Cleaver’s case [1892] 1 QB 147, 157, 158 would prevail and the provisions of the Administration of Estates Act, 1925, s 46 however peremptory, would be read and construed subject to the public policy rule. But it is unnecessary and I do not decide it.”
(See also Re Dellow’s Will Trusts [1964] 1 All ER 771 in which Ungoed-Thomas J held that the forfeiture rule prevented a woman who murdered her husband from taking any entitlement from his estate under the intestacy provisions).
In the United Kingdom the issue is now addressed by The Forfeiture Act 1982 s 2(4)(a)(i) which recognises the applicability of the forfeiture rule to interests under an intestacy. The view expressed in the authorities that the forfeiture rule applies in cases of intestacy prevailed up to the time of the passing of the Act. (See Pennycuick V-C in In Re Giles Deceased [1972] 1 Ch 544 at 552.)
Australian courts have followed the English authorities since Sigsworth. In stating the rule in Helton’s case, Dixon J, Evatt and McTiernan JJ referred to it as applying to a will or intestacy (63 CLR at 709). The forfeiture rule was applied to intestacies in Re Tucker (1921) 21 NSWSR 175, Re Sangal [1921] VR 355, and In The Matter of the Estate of Soukop (1997) 97 A Crim R 103. New Zealand authority is to the same effect: InRe Cash (1911) 30 NZLR 577.
In my view this court should follow the authorities which have rejected In Re Houghton and the American authorities relied upon by Joyce J in that case. Joyce J accepted that the statutory provisions were absolute and that a principle of public policy could not be permitted to contravene the language of the statute. This stark approach must be viewed in the light of the guide to statutory interpretation previously referred to, namely, that a statute is to be construed in conformity with the common law unless the contrary intention is manifested (American Dairy Queen (Queensland) Pty Ltd (1981) 147 CLR 677 at 682). The forfeiture rule arose from a well-accepted principle based on public policy. It affects rights to property. The intestacy provisions are couched in general terms. There is no suggestion in the wording of the Administration and Probate Act 1919 that the forfeiture rule no longer applies.
In my view the forfeiture rule applies in the case of both wills and intestacies.
Abuse of process
The final argument put forward by the first defendant was that the civil proceedings constitute an abuse of the process of the court which would justify a permanent stay of these proceedings. According to the argument, to permit the plaintiff to attempt to prove the commission of either murder or manslaughter in civil proceedings would be to undermine the “fundamental constitutional operation” of the jury’s verdict of acquittal.
In the alternative, it was argued that the civil proceedings place the first defendant in jeopardy of a penalty for the second time in relation to the same accusations and that, accordingly, they are vexatious and oppressive. Further, it was claimed that the continuance of the civil proceedings would erode public confidence and give rise to the spectre of “the scandal of conflicting decisions”.
In support of the argument that the conduct of the civil proceedings amounts to an abuse of the process of the court, Mr Wells drew attention to some of the more recent High Court decisions dealing with abuse of process. He suggested that Helton’s case would now be decided differently in the light of these decisions.
Mr Wells placed particular reliance on Walton v Gardiner (1993) 177 CLR 378. In that case three medical practitioners were charged before the New South Wales Medical Tribunal on complaints alleging misconduct in the treatment of patients at a private hospital between 1973 and 1977.
The original complaints were lodged in 1986. An application was then made to stay the proceedings because of the delay which had occurred since the alleged incidents. The New South Wales Court of Appeal granted a stay of proceedings before the Tribunal (Herron v McGregor (1986) 6 NSWLR 246).
Following a royal commission into the administration of the hospital, which delivered its report in December 1990, further complaints were lodged before the tribunal against each of the doctors. The complaints were lodged in March 1991. They were not the same complaints as had been made previously, but they arose out of the same pattern of alleged professional conduct which had formed the basis of the earlier complaints and they raised issues which substantially overlapped issues which would have arisen at a hearing into the earlier complaints. The New South Wales Court of Appeal, by a majority decision, stayed the new complaints on the ground that they amounted to an abuse of process. This decision was upheld by a majority of the High Court.
The majority in the High Court found it unnecessary to embark on the weighing process required to determine whether the circumstances constituted an abuse of process, thus justifying a permanent stay of proceedings. However, their Honours were of the opinion that the conclusion reached by the Court of Appeal was “clearly open in all the circumstances of this quite exceptional case”.
The majority of the Court of Appeal took the view that it would be unfairly and unjustifiably offensive to require the medical practitioners to face fresh proceedings five years after the original proceedings had been stayed. The majority referred to the added delay and the close similarity between the new proceedings and the previous proceedings which had been stayed.
The principal considerations which led to the staying of the second set of proceedings have no application to the present case. However, Mr Wells drew attention to the remarks made in the majority judgment in the High Court in response to an argument that the Court of Appeal had incorrectly treated the principle against double jeopardy as relevant to the circumstances. It was acknowledged by all members of the Court of Appeal that the case did not give rise to the strict rule of double jeopardy. The principle of autrefois acquit did not apply. However, the analogy of the double jeopardy rule was thought to be of some relevance.
The members of the majority in the High Court, Mason CJ, Deane and Dawson JJ, agreed (177 CLR at 398):
“Once it is recognized that the question whether the current proceedings should be permanently stayed falls to be resolved by reference to a weighing process in which account has to be taken of considerations of fairness to the respondents, it is apparent that the members of the Court of Appeal were fully justified in paying regard to the notions of fairness to an accused person which underlie the common law principle against double jeopardy. Notwithstanding the Department’s argument to the contrary, the substance of the complaints against the respondents in the current proceedings corresponded, to a very large extent, with the substance of the complaints against them in the proceedings which had been permanently stayed by, or as a consequence of, the orders made in Herron v McGregor in 1986. The earlier jeopardy of loss of the right to practise and of pecuniary penalty to which the respondents had been subjected in the proceedings based on particular allegations involving the use of deep sleep therapy and associated electro-convulsive therapy on particular patients at Chelmsford prior to 1979, were renewed in the proceedings based on more generalized and wider, but essentially similar, complaints. It is true that the absence of an earlier hearing on the merits and the variations between personal complainants and the details of the complaints mean that, even if a strict rule against jeopardy is applicable to proceedings in the Tribunal, the current proceedings would not fall within it. The sense of injustice which inspires the doctrine against double jeopardy was, however, plainly present in large measure. It was, as Mahoney JA pointed out (1991) 25 NSWLR at p 217 ‘an important factor to be weighed in the balance’.”
In seeking to apply this reasoning to the present case, Mr Wells argued that the civil proceedings aimed at depriving the first defendant of any entitlement under the intestacy provisions were oppressive and unfair. It was argued that there was an element of double jeopardy in relation to both proceedings and penalty. Furthermore, to invite a civil court to reach a finding inconsistent with the acquittal in the criminal court would be to shake public confidence in the administration of justice and give rise to the possibility of the scandal of conflicting decisions.
In my view, these arguments must be rejected. The analogy of the double jeopardy principle was but one of the matters taken into account in Herron’s case in reaching the conclusion that there was an abuse of process. More importantly, the parties in the civil proceedings presently before the court are not the same as the parties in the criminal proceedings. The purpose of the criminal proceedings was to determine whether the prosecution could prove beyond reasonable doubt that the first defendant committed the offence of either murder or manslaughter. Those alleged offences can no longer be established as crimes rendering the first defendant liable to punishment. However, it remains open in civil proceedings for the court to determine whether there is proof in accordance with the standard applied in Briginshaw v Briginshaw (1938) 60 CLR 336, that the first defendant unlawfully killed the deceased, thus disentitling her to any benefit from his estate.
It is important to bear in mind that the civil proceedings are not punitive in nature. In Rasmanis v Jurewitsch and Anor (1968) 88 W.N. (PT. 1) (NSW) 59 at 63 Street J referred to the nature of the consequences of applying the forfeiture rule. He said:
“Public policy requires deprivation of the felon; it does not require compensation to the victim, nor does it require punishment of the felon. I reject entirely from consideration any question of the present problems being resolved by suggestions that the estate of the victim should be compensated in some way. In some of the American decisions and American academic writing (for example, an article in (1957) 17 Maryland Law Review 45) the denial to the felon of the enjoyment of any enhanced property rights is coloured by the introduction of a punitive element. There is no room for introducing any such element into the solution of the problem. Forfeiture as a result of felony has been expressly abolished by statute (Crimes Act, 1900 s 465(1)), and the principle of public policy operates only to deny to the felon the enjoyment of any benefit which might otherwise flow from his felonious act; it does not cross the line and take from him rights or interests which are not consequential upon his felonious act.”
(See also In the Matter of the Estate of Soukup (1997) 97 A Crim R 103 at 108; Sherrin and Bonehill, The Law and Practice of Intestate Succession 324.)
In order for the forfeiture rule to operate, a felonious killing must be established, but it is the fact of an unlawful killing established in proceedings outside the context of crime and punishment which gives rise to the public policy considerations which form the basis of the forfeiture rule. Nor is there cause for concern about public perception by reason of “the scandal of conflicting decisions”. Counsel for the first defendant drew attention to this phrase, which is taken from Spencer Bower and Turner, “The Doctrine of Res Judicata” 2nd ed (1969) p 411 and quoted in the joint judgment of Deane and Gaudron JJ in Rogers v The Queen (1994) 181 CLR 251 at 280. In that case the High Court held by a majority that it would be an abuse of process for the prosecution to lead evidence of admissions at the trial of the defendant for armed robbery when the admissions had been excluded in a previous trial against the defendant on the ground that they were not made voluntarily. The offences charged in the first trial were not the same as the offences charged in the second trial, but the previously excluded material was of potential relevance to the counts to be tried at the second trial.
Deane and Gaudron JJ held that the course proposed by the prosecution amounted to an abuse of process. They said (280):
“In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites ‘the scandal of conflicting decisions’ Spencer Bower and Turner, The Doctrine of Res Judicata 2nd ed (1969) p 411. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of ‘fresh evidence’ or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.”
As I have attempted to point out, the present case stands on a quite different footing. The parties are not the same, the nature of the jurisdiction is not the same and the standard of proof is different. There is no risk of embarrassment arising from differing findings.
The significance of such matters, particularly the different standard of proof, is illustrated by Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. A medical practitioner who was charged with disciplinary offences arising out of alleged sexual misconduct with patients was acquitted in the criminal court of a sexual offence on one of the patients. It was asserted on his behalf that the facts alleged in the criminal proceedings were the same as those on which one of the complaints before the disciplinary tribunal was based.
In their joint judgment in the New South Wales Court of Appeal, Gleeson CJ, Meagher JA and Handley JA held that the principle of double jeopardy did not apply to the circumstances. Their Honours said (635):
“It is strongly arguable that there is no identity of parties in this case. The criminal proceedings were conducted by the Director of Public Prosecutions on behalf of the Crown: see Director of Public Prosecutions Act 1986 s 7. These proceedings have been conducted by the Commission, which is a statutory body representing the Crown: Health Care Complaints Act 1993, s 75(2). The Director and the Commission are both servants or agents of the Crown (Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376), but it does not follow that there is identity of parties. The Crown Proceedings Act 1988, s 5(1), which prevents proceedings being brought against the Crown for a claim against a statutory corporation representing the Crown, may make them separate parties for present purposes: compare Haines v Tempesta (1995) 37 NSWLR 24, George Spencer Bower, The Doctrine of Res Judicata, 3rd ed (1996) at 116-117 and Re A Medical Practitioner [1959] NZLR 784.
Even if, in this case, the parties in both proceedings are the same there is still no res judicata estoppel. These are civil proceedings in which the civil onus applies as explained in Briginshaw v Briginshaw (1938) 60 CLR 336: see Bannister v Walton. Even if the factual questions were identical, the difference in the onus of proof prevents the issues being the same. Whether particular conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Thus an acquittal does not bar civil proceedings against the accused arising out of the same facts: see generally, Helton v Allen (1940) 63 CLR 691; Rejfek v McElroy (1965) 112 CLR 517.
In any event the factual questions before the jury were not necessarily the same as those before the Tribunal. The issues in the criminal proceedings may have included the existence of an honest belief by the doctor that he had the consent of the patient, whether he was reckless in believing that she consented, and whether she did in fact consent, perhaps because she thought that the doctor had medical reasons for doing what he did: compare Papadimitropoulos v The Queen (1957) 98 CLR 249 where the appellant was not guilty of rape although he had induced the victim to consent to intercourse by fraudulently representing that they were married.
For these reasons the issues in the two proceedings relating to LW were not the same. It follows that the issues in Re Mulligan were not the same either, if only because of the difference in the onus of proof. The relevant observations of Burt CJ were not necessary for the decision in that case, but in any event we would, with respect, decline to follow them: see also Maxwell v Commissioner of Inland Revenue [1962] NZLR 683.
Disciplinary proceedings consequent upon a conviction in criminal proceedings are not barred by autrefois convict or any wider principle of double jeopardy: see Re Weare [1893] 2 QB 439 and Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 27, per Sheller JA. The converse is also true and adverse disciplinary action does not bar later criminal proceedings arising out of the same facts: see Lewis v Mogan [1943] KB 376; R v Hogan [1960] 2 QB 513 and Wigglesworth v The Queen (1987) 45 DLR (4th) 235 at 256, a decision of the Supreme Court of Canada.
The proposition that an acquittal does not inhibit disciplinary proceedings arising out of the same facts is well established in other common law jurisdictions: see Stinson v College of Physicians & Surgeons (1911) 22 OLR 627, Re A Medical Practitioner, Bodna v Deller [1981] VR 183 at 196-198, Basser v Medical Board (Vic) [1981] VR 953 at 971-972 and Saeed v Inner London Education Authority [1985] ICR 637. It is also sound in principle because both the onus of proof and the purpose and focus of the proceedings are different.”

It is my view that, in the present case, the argument linked to the principle of double jeopardy has even less merit. As I have said, only the criminal proceedings can be described as punitive in nature.
I return then to Helton’s case which is directly in point. It appears from the report of the case that Helton relied upon the acquittal in the criminal court as an answer to the application of the forfeiture rule. The issue was specifically adverted to by the court. After referring to some of the cases in which the forfeiture rule had been applied, the majority said (63 CLR at 709):
“In none of these cases has the question arisen whether the acquittal in criminal proceedings of the person alleged to have committed the homicide excludes him from the operation of the rule. They do, however, make it clear that his conviction is not an essential condition, for they include instances where the homicide himself brought about his own death and where he was a fugitive from justice. It happens in the present case that Helton’s acquittal was not proved or even tendered in evidence and the point was not taken. But it is an undisputed fact which we think we should not ignore. His acquittal cannot operate as an estoppel. The plaintiff in the present proceedings is not bound by it as decisive of his innocence. Nor indeed do we think that it would be admissible against her as an evidentiary fact. In Helsham v Blackwood (1851) 11 CB 111 at pp 121-124 an argument of counsel will be found which collects the authorities in support of the proposition that in civil proceedings one party is not estopped by a judgment of acquittal of the other from showing that he was guilty of the crime of which he was arraigned. The distinction between the effect of an acquittal and a conviction is there shown. It is a distinction which makes irrelevant the decision of Sir Samuel Evans P. in In the Estate of Crippen (1911) P 108 admitting a conviction of murder in evidence.
The only ground upon which the acquittal of Helton could exclude the operation of the rule is that, the rule being one of public justice, it ought not on grounds of public justice to be extended to a case where the claimant has been absolved in the criminal jurisdiction from the material crime. In other words, it may be said that to retry as a civil issue the guilt of a man who has been acquitted on a criminal inquest is so against policy that a rule drawn from public policy ought not to authorize it. There is, however, no trace of any such conception in the history of the principle that by committing a crime no man could obtain a lawful benefit to himself. To qualify the rule in the manner suggested would, we think, amount to judicial legislation. It is much more than the application of settled principle to an instance hitherto unforeseen or not adverted to in the general formulation of the rule. We are, therefore, of opinion that the appellant Helton is not entitled as a matter of law to a verdict and judgment in his favour.”
Rich J did not refer to this issue, although he agreed that the appeal should be allowed and a retrial ordered. Starke J agreed that the appeal should be allowed. He commented on the acquittal as follows (703):
“It may be that an acquittal ascertains no fact, as does a conviction, but, if a conviction cannot be ‘blowed off by a side wind’ (Vanderbergh v Blake (1661) Hardres 194 [145 ER 447]; Bynoe v Bank of England (1902) 1 KB 467 at p 470, it may perhaps be considered high public policy that the constitutional verdict ‘not guilty’ should also ‘not be blowed off by a side wind’. However, as I have said, I express no concluded opinion upon the subject.”
The majority of the court delivered a considered opinion on the acquittal issue. It was a matter of considerable importance to the retrial which the court ordered. In my view subsequent developments in the law relating to abuse of process applications do not require a different result. The court specifically directed its attention to the aspect of double jeopardy. I do not think that this court should depart from the decision of the High Court.
I would answer the questions asked in the case stated as follows:
1.1    No.
1.2    No.
1.3    No.
2.1    No.
2.2    No.
3.1    No.
3.2The plaintiff is not precluded as a matter of law, by virtue of Part 3A of the Administration and Probate Act 1919 (SA), from obtaining a declaration that the First Defendant holds any interest in the intestate estate of the deceased to which she might otherwise be beneficially entitled (at present or upon distribution of same) upon a constructive trust for the other parties to the action.
4      Unnecessary to answer
WILLIAMS J. I agree with the reasons given by Duggan J. I would answer the questions in the manner which he proposes.
MARTIN J. I agree with the answers proposed by Duggan J for the reasons he has given.

[2002] SASC 437

20 December 2002