Rivers v Rivers

RIVERS v RIVERS
[2002] SASC 197
CIVIL

BLEBY J The plaintiff is the adult son of the late Donald Graeme Rivers deceased. The first defendant is the deceased’s widow. The second defendant is a daughter of the deceased and sister of the plaintiff. She is also administrator of the deceased’s estate. The first defendant is the step-mother of both the plaintiff and the second defendant. The third defendant is an infant daughter of the deceased and of the first defendant, who was born six months after the death of the deceased.
The deceased was shot and killed on 4 July 1997. He died intestate. Ordinarily, his estate would be divided in accordance with the provisions of s 72G of the Administration and Probate Act 1919. Pursuant to those provisions, the first defendant would receive $10,000 and one half of the residue of the estate, and the three children of the deceased would be entitled equally to the other half of the residue. The estate is valued at approximately $1,000,000.
The first defendant was charged with the murder of the deceased. On 14 August 1998 she was acquitted by a jury of murder and of any alternative charges. Nevertheless, the plaintiff asserts that the first defendant wrongfully caused the death of her husband or recklessly caused or committed an unlawful and dangerous act which resulted in his death. He claims that under the common law rule of forfeiture, the first defendant is disentitled from participation in any benefit of the estate of the deceased.
In her defence the first defendant admits picking up a rifle, but denies pointing it at the deceased. She admits placing pressure on the trigger, but denies that she intended to do so and denies any recklessness or intention to kill or to commit an unlawful and dangerous act. She claims that she thought at all material times that the rifle was unloaded. She pleads her charge of murder and acquittal by jury verdict and raises a number of defences in law based on that acquittal. In the alternative, she pleads lack of or diminished moral blameworthiness which excuses her from the forfeiture rule. She is a Filippina, who was thirty years younger than the deceased, and claims that she married him in 1996 under pressure from her family in the Philippines. She pleads that she suffered domestic violence at the hands of the deceased, felt intensely isolated from her culture, was pregnant at the time, did not intend to kill the deceased and did not intend to benefit financially from any actions taken by her.
The first defendant made application to a Master for the determination of some preliminary issues pursuant to r 75.02 of the Supreme Court Rules. The Master refused to give such a direction, and the first defendant now appeals against that refusal.
Before identifying the points which the first defendant seeks to have determined as preliminary issues, it is clear that the plaintiff relies on the principle, at least recognised by three of the judges (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 that the defendant’s acquittal does not prevent the application of the rule of public policy excluding, from taking benefits under a will, a person who unlawfully killed the testator. Indeed, it was considered by those three judges that evidence of the acquittal was not even admissible at the trial.
In Helton v Allen, the defendant was acquitted of the murder of the testator, and that was followed by a civil trial before a jury as to the defendant’s entitlement under the testator’s will. The trial Judge effectively directed the jury to find homicide proved if they considered that there was any greater probability favouring that conclusion. There was an appeal by the defendant against the finding of unlawful killing based on that direction. The appeal was allowed on the footing that a higher standard of proof was required, but that it was not necessary to direct the application of the criminal standard of proof beyond reasonable doubt.
Mr Wells QC, for the present appellant, identified that as the true ratio of the case, the expressions of opinion as to the application of the rule of public policy, in the circumstances, being merely obiter, and based on reasoning that will not withstand present day scrutiny. Whether he is right need not be decided now. What he does seek to do is to attack the application of the rule of public policy in circumstances of an acquittal such as those which occurred here. He seeks to lead evidence of the acquittal in order to prove the fact of the acquittal, and not as evidence of the facts which brought that acquittal about.
By her application before the Master the first defendant sought an order that pursuant to r 75.02 of the Supreme Court Rules there be a preliminary determination, ahead of all other issues in the action, of the following questions of law:
1.Whether the plaintiff is estopped from asserting in the Statement of Claim that the First Defendant …… unlawfully and/or wrongfully killed the deceased in the statement of claim (sic);
2.Whether, further and alternatively, it would be an abuse of process and/or contrary to public policy for the trial in the within action to proceed further or at all, and the within action should be dismissed;
3.Whether in point of law s 72G of the Administration and Probate Act 1919 (SA) excludes the operation of any rule or principle of forfeiture in the event (sic) alleged;
4.Whether in point of law s 72G of the Administration and Probate Act 1919 (SA) excludes the imposition of a constructive trust in the events alleged.
It may be necessary to reframe some of these questions if the matter proceeds further, but for present purposes their thrust is clear enough. In support of the first two questions the first defendant wishes to argue that the forfeiture principle referred to in Helton v Allen has been effectively replaced by the statutory policy which finds expression in the provisions of the Criminal Assets Confiscation Act 1996 and which specifically provides (s 12) that there can be no forfeiture of the proceeds or benefits of a supposed crime if there has been an acquittal. She further argues that she is entitled to the estoppel claimed by application of the principles of abuse of process, in that the present action places her in jeopardy of penalty for a second time for precisely the same accusation. The first defendant will rely on principles expressed in such cases (which have been decided since Helton v Allen) as Walton v Gardiner (1993) 177 CLR 378, Rogers v The Queen (1994) 181 CLR 251 and Pearce v The Queen (1998) 194 CLR 610. In that regard the first defendant points particularly to the fact that there is no presumption that the verdict of acquittal was based on the existence of a reasonable doubt rather than on the jury’s satisfaction that the first defendant was innocent. She claims she is entitled to act on the public declaration of innocence by her acquittal.
So far as the points sought to be agitated in questions 3 and 4 are concerned, the first defendant wishes to argue that s 72G of the Administration and Probate Act 1919, which provides that a spouse is “entitled” to a stated share of the deceased’s intestate estate, means that she is beneficially entitled, and that those words must be given their full effect, thus qualifying the forfeiture rule, in so far as it has ever had any application to distribution on intestacy. In the alternative, if and to the extent that the first defendant holds her entitlement upon a constructive trust for the other parties, that would only arise if it were unconscionable for her to take the beneficial title under s 72G, and that equity should recognise the verdict of acquittal and the policy of s 12 of the Criminal Assets Confiscation Act 1996.
In rejecting the first defendant’s application, the Master appears to have acted on an assumption that a number of factual issues necessary for the determination would be hotly contested by the plaintiff, and that it would not therefore be possible to present an agreed statement of facts against which the legal issues could be considered. The unlawful killing of the deceased by the first defendant is hotly contested on the facts. Her being charged with and acquitted of his murder, whilst not admitted on the pleadings, is acknowledged by the plaintiff. Mr Lane, counsel for the plaintiff, properly conceded that the determination of questions of law was not impeded by any outstanding factual disputes. The Master was therefore wrong in deciding that resolution of the points of law was prevented by the factual dispute. There is no doubt that there is grave contention between the plaintiff and the first defendant as to whether the first defendant unlawfully killed the deceased, such as to disentitle her from any interest which she might otherwise have in the deceased’s estate. However, those contentious facts do not need to be aired for the purpose of determining the issues which the plaintiff now wishes to raise. Apart from admissions on the pleadings, the only fact requiring proof (and this is not seriously in contention) relates to the acquittal of the first defendant on the charge of murder, and possibly alternative charges. It is therefore necessary to review other material that was placed before the Master and before me in support of and against having these points determined as preliminary questions.
Rule 75.02 of the Supreme Court Rules provides:
“Subject to the preceding subrules, the Court may at any time or from time to time in any proceeding, order:
(a)   that different questions of fact arising therein be tried by different      modes of trial;
(b)   that one or more questions of fact be tried before the others;
(c)   that any point or points of law arising on the pleadings be disposed of        before proceeding to trial of the facts;
and may appoint the place or places of such trials.”
Cases will be relatively rare in which advantage can properly be taken of the procedure referred to in that rule. In a judgment which repays careful reading, Walters J in Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 595 reviewed many relevant cases and discussed the various pitfalls in directing that questions of law be determined in advance of a trial on the evidence. The following points are made in the judgment:
1.An order that a point of law be set down for hearing and disposal before trial ought only to be made when the objection in point of law raises a question which, if decided in favour of the party objecting, would dispense with further trial of some substantial issue in the action. His Honour did not go as far as to say, as some judges have, that the point must be conclusive of the whole matter, whichever way the point is decided.
2.Such a reference ought only to be made where there is no dispute on the relevant facts giving rise to it.
3.It will seldom be an appropriate procedure where facts have to be decided by the trial Judge in order to determine the preliminary point.
4.The procedure should not be adopted when assumptions must be made as to the correctness of allegations of fact made in the statement of claim or defence.
5.If the procedure is adopted, there should be a clear definition of the point of law raised for determination.
6.It is not the function of the Court to advise parties as to what would be their rights under a hypothetical state of facts. “The function of the Court is not to decide abstract questions of law, but to decide questions of law when arising between the parties as the result of a certain state of facts”. (Stephenson Blake & Co v Grant, Legros & Co (1917) 86 LJ Ch 439 per Warrington LJ at 440).
The latter warning has recently been repeated by the High Court in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 357 [49]:
“As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state – let alone answer – preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.”
Nevertheless, the Court went on to say at (51):
“It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue. However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process.”
As von Doussa J acknowledged in Craig & Craig v Jetmaster Fireplaces Pty Ltd (1988) 142 LSJS 258 at 263, “the categories of situation in which an order ought to be made pursuant to r 75.02(c) are not in any sense closed, and that whilst an order ought not to be made likely [sic], what is necessarily involved in each instance is an act of judgment arrived at as a product of the consideration of balance of convenience”. Likewise, the Chief Justice in IOOF Australia Trustees Ltd v Seas SAPFOR Forests Pty Ltd (2000) 78 SASR 151 at 161 [48] acknowledged that reasons of convenience and economy might well justify the procedure where the question is not hypothetical.
Finally, the Court of Appeal in Queensland has recently reiterated that it is not necessary that a point of law so determined should resolve the whole action. In Re Multiplex Constructions Pty Ltd (1999) 1 Qd R 287 at 288 Davies JA and Lee J said:
“It is true that deciding the question of construction here would not “settle the litigation between the parties”, to adopt a phrase from the decision of Warrington J in Lewis v Green [1905] 2 Ch 340 at 344 relied on below by the present appellant. But, whatever the position may have been in England in 1905, that is certainly not the correct approach now either under O 64 r 1A or under O 39r 12. In both cases judges have a wide discretion permitted by those rules to decide questions. There are often questions in a dispute the decision of which, whilst it may not necessarily resolve the whole dispute, may nevertheless lead to its resolution, in a way which results in considerable savings in time and cost, often for reasons which are neither strictly legal nor logical. It is therefore desirable that, whenever possible, judges should decide summarily questions which can be conveniently so decided.”
See also Re Cotton Crops Pty Ltd (1985) 2 Qd R 448 at 450, 451.
Bearing in mind the caveats set forth above, whether such a question should be reserved will depend on matters of practicality and convenience affecting the litigation and the interest of the parties.
I turn to the facts relevant to such a determination in this case.
Answering the questions in one way may put an end to the case. An opposite answer will not necessarily do away with a trial on the facts. Nevertheless, as the authorities show, that is not fatal.
The case is ready for trial. There have been many interlocutory procedures to obtain access to police records and declarations of witnesses obtained in connection with the criminal proceedings. Resolution of preliminary issues will inevitably delay the trial, if it takes place at all, with consequent difficulties of recollection of events by material witnesses – events which are already almost five years old. On the other hand, there exists substantial written records of what material witnesses have said, and when put to witnesses this may well assist their recollection.
Possible delay in the trial could be exacerbated by the need to resolve the present effect of Helton v Allen (supra) in the High Court itself, although depending on what is perceived to be the true ratio decidendi of the case, that may not be necessary.
The arguments proposed are novel and, to the best of my and counsel’s researches, there is no Australian judicial authority which has considered and determined the arguments. The propositions are therefore devoid of clear legal authority. However, they are not points lacking in substance, and any uncertainty in the law is not a reason in itself for not adopting the procedure. After all, recognition that there is a point of law to be determined is in itself an acknowledgement that there may be no certainty as to the answer to the question.
The plaintiff is entitled to have his claim heard and determined in as timely a fashion as possible. He has an understandable interest in resolving, for the purposes of this litigation, the disputed facts in question. On the other hand, if the trial proceeds, it is likely to exceed three weeks; it will be hard fought; and it will raise matters of considerable distress to all concerned. Resolution of the preliminary issues does have the capacity, but not the certainty, of avoiding that.
It must also be borne in mind that the first defendant does have the ability to apply either to strike out the statement of claim pursuant to r 46.18 of the Supreme Court Rules or to apply for summary judgment under r 25.04 by raising the very questions now sought to be decided. Such applications would at least have to be heard, and that too must have some bearing on the discretion to direct the preliminary determination of questions of law.
It is also very relevant that there is no dispute as to the facts which underlie the various preliminary questions. Resolution of those questions is not dependent upon resolution of the disputed facts as to whether or not the first defendant unlawfully killed the deceased.
If the matter does proceed to a full trial, there must always be the prospect of a verdict different from that reached in the criminal trial simply because of the differing standards of proof. Such inconsistent verdicts, although there might be a technical rationalisation for them, tend to bring the law into disrepute, and if there is some means of avoiding the possibility, that too is relevant to the exercise of the discretion.
Also relevant is the cost of a full trial. The first defendant has very few resources of her own with which to run a three week trial. The plaintiff presently has no income of his own, and whilst he has some present entitlement to a share in the deceased’s estate, if costs were ordered to be paid out of the estate, that would have an obviously adverse effect on the interest which any of the parties would ultimately receive.
Finally, on the evidence available to me for the purposes of this application, the first defendant’s present state of psychiatric health is extremely frail. She is likely to suffer significant trauma and mental instability in reliving the death of her husband. If there is a reasonable possibility of a trial on the facts being averted, there are strong humanitarian considerations why that course should be followed.

Bearing in mind all these considerations, I consider that it is appropriate that the Court’s discretion should be exercised in favour of having the preliminary points of law determined, provided that a statement of relevant facts can be agreed for that purpose by the parties. Because of their novelty, and in order to avoid at least one possible appeal, I consider that it is appropriate that the questions be reserved on a case stated to the Full Court pursuant to s 49 of the Supreme Court Act 1935 and r 72.04.
Accordingly, the appeal is allowed. The order of the Master dismissing the first defendant’s application is set aside. I direct the first defendant to prepare a draft case stated for the Full Court. I will hear the parties as to the cost of the proceedings before the Master and on the appeal.

[2002] SASC 197

19 June 2002