3 Scope of the forfeiture rule

Introduction

  1. 3.1 As discussed in Chapter 2, the scope of the forfeiture rule in Victoria is uncertain and can lead to harsh outcomes that are at odds with community views and standards. The uncertainty also makes it difficult for executors and administrators to discharge their functions and for legal professionals to advise their clients.
  2. 3.2 The Commission’s proposed Forfeiture Act would make the boundaries of the rule clear and reflect a distinction between unlawful killings that, by their nature, should attract the application of the rule and those that should not. These boundaries would not align with the scope of the rule that appears to have evolved at common law, though they would reflect community views and standards. They would be drawn by establishing a nexus between the application of the rule and identified homicide offences. All but four indictable offences under the Crimes Act 1958 (Vic) would be included within the scope of the rule. All non-indictable offences that involve a death would be excluded.
  3. 3.3 Although the forfeiture rule may preclude a person who has not been convicted for the unlawful killing from obtaining a consequential benefit, the nexus between the rule and criminal offences would be relevant. A court determining in civil proceedings whether the rule applies would normally decide whether the person was responsible, on the balance of probabilities, for committing the relevant criminal offence.
  4. 3.4 This chapter discusses the Commission’s reasoning in drawing the boundaries of the forfeiture rule and its recommendations for drafting the relevant legislative provisions.

Defining the scope of the rule

The Commission’s approach

  1. 3.5 A homicide is the most serious of crimes with consequences that are final and irreversible. The community views the deliberate and intentional taking of life most severely; however, the community also recognises that there are circumstances in which the nature of the offence and the level of culpability of the offender require leniency. These community standards should be reflected in the scope of the rule at law.1
  2. 3.6 In determining what the scope of the forfeiture rule should be, the question is whether
    a particular class of killing is sufficiently abhorrent that the interests of justice require that an offender2 should be precluded from taking a benefit as a result of the death.3 Whether one class of killing is more abhorrent than another depends, at least in part,
    on the degree of moral culpability attributed to any person who commits the offence.

Inadvertent, involuntary or negligent offences

  1. 3.7 The forfeiture rule applies in Victoria to offenders responsible for murder and other intentional and reckless homicides.4 That it should continue to do so is uncontroversial. However, whether an inadvertent or involuntary act of manslaughter should be within the scope of the rule is not settled. In England, for example, the forfeiture rule does not apply in cases of manslaughter on the road by gross negligence,5 but this is not necessarily the law in Victoria.
  2. 3.8 In New Zealand, the Succession (Homicide) Act 2007 (NZ) (‘the NZ Act’) excludes unlawful killings resulting from negligent acts or omissions from the application of the codified forfeiture rule.6 The New Zealand Law Commission recommended this exclusion on the grounds that, because of the unintended nature of the crime, allowing an offender to inherit is not likely to serve as an incentive for future such acts or omissions.7
  3. 3.9 The Commission received a range of submissions that suggested that the forfeiture rule should not apply to accidental, unintended or negligent unlawful killings.8 However, judges of the Supreme Court of New South Wales with whom the Commission met said that the rule is not intended to be punitive or serve as a deterrent but rather to convey the community’s sense of abhorrence. Further, they stated that a death resulting from an inadvertent, involuntary or negligent act can be just as abhorrent as an intended one.9
  4. 3.10 The Commission’s view is that an offence should not be excluded from the scope of the rule simply because the act or omission was inadvertent, involuntary or negligent. While many non-indictable offences fall within this category and should be excluded from the rule, lack of intention is not a robust basis on which to draw the boundaries.
  5. 3.11 Inadvertent, involuntary and negligent acts or omissions might result in charges for indictable offences such as manslaughter; culpable driving causing death;10 dangerous driving causing death;11 or failure to control a dangerous, menacing or restricted breed dog that kills a person.12 Generally, deaths resulting from these offences are unintended, although foreseeable, consequences of the offender’s conduct.
  6. 3.12 Excluding negligent acts or omissions as a class from the application of the forfeiture rule would allow offenders who are responsible for very serious forms of criminal negligence to inherit from the deceased person. They would include offenders responsible for neglecting vulnerable relatives such as children, persons with disabilities and the elderly.

Intentional violence

  1. 3.13 In Estate of Soukup, Justice Gillard indicated that the rule should not apply if the offender was not guilty of deliberate intentional and unlawful violence or threats of violence resulting in death.13 On this view, the key issue in determining whether the rule applies is not whether the killing was intentional, but whether there was intentional violence.
  2. 3.14 The Commission agrees that the intentional use of violence is a strong indicator of an offender’s moral culpability, though it is not the only factor to consider and nor can it alone provide a sufficient basis on which to decide whether an offence should attract the operation of the rule. An unlawful killing of a vulnerable person by neglect may not be characterised as violent but is nevertheless a serious crime that should attract the operation of the rule.

Moral culpability

  1. 3.15 In determining whether or not an unlawful killing should be included in the class of killings to which the rule should apply, the Commission considered the degree of moral culpability that the community would attribute to any person committing an offence of that type. Where the degree is minimal, it is likely that applying the rule is against the interests of justice.
  2. 3.16 The Commission considers that murder and all other indictable homicide offences should be included within the scope of the rule unless there are cogent reasons to exclude them. Most, if not all, such offences are already within scope at common law. They are classified as crimes and offenders may be punished by a term of imprisonment. Even where the unlawful killing was unintended, the nature of the indictable offence usually conveys a high risk that another person could be killed as a result of the offender’s conduct.
  3. 3.17 Offences that should be excluded have been identified in consultations and submissions and are discussed at [3.34]–[3.73]. Their exclusion would not detract from—and may in fact strengthen—the achievement of the public policy objectives of the rule. They share one or more of the following features that suggest that the moral culpability of anyone who committed the offence would be low:

the act or omission is not directed towards the deceased person

the motive for the offence is not personal gain

the deceased person would be unlikely to object to the offender obtaining a benefit from their estate

the sentence for the offence is at the lower end of the scale

the offence is one of diminished responsibility because the offender has a form of mental impairment

the unlawful killing is committed at the instigation or with the agreement of the deceased person (for example, through a suicide pact)

a court would be unlikely to find that the forfeiture rule applied or otherwise would be likely to exercise a statutory discretion to modify the effect of the rule in all cases.

  1. 3.18 If an offence is one to which the rule should normally apply but in some cases it would not be in the interests of justice to apply it, the Commission proposes that an application could be made to the court to modify the effect of the rule. As discussed in Chapter 4, the proposed Forfeiture Act would provide the court with the discretion to modify the effect of the rule in the case of any unlawful killing within the scope of the rule, other than murder.

Offences to which the forfeiture rule should apply

Murder

  1. 3.19 In the Commission’s view, the forfeiture rule should always apply in response to murder. The ‘appropriateness of applying the forfeiture rule to murderers has never been questioned’.14
  2. 3.20 A murderer has intentionally or recklessly and without lawful justification killed someone or has inflicted serious injury and the victim has died as a result. The community’s abhorrence of this offence is clear, with the maximum penalty for murder in Victoria being life imprisonment.15

Manslaughter

  1. 3.21 An unlawful killing is manslaughter if, in the circumstances, the offender’s culpability is less than that required to constitute murder. The offender’s degree of moral culpability, as well as the acts and circumstances of manslaughter offences, vary infinitely in seriousness and ‘could come very near to murder or amount to little more than inadvertence’.16 The differing degrees of moral culpability for manslaughter are reflected in the variety and range of penalties: from 20 years imprisonment to a fine.17
  2. 3.22 Manslaughter is not confined to unlawful killings resulting from deliberate acts. A person may be found guilty of manslaughter if they are responsible for the death of another due to a failure to exercise a duty of care or because of their reckless or dangerous acts or omissions that a reasonable person would have foreseen might cause harm to another.
  3. 3.23 Offenders in Victoria have been convicted of manslaughter by negligence for a wide range of acts such as:

the accidental discharge of a firearm due to inattentive handling18

the negligent use of a firearm by failing to properly identify their target while hunting19

burning the deceased person alive without forming any reasonable belief as to whether they were dead or alive20

neglect of children by leaving them unattended in a motor vehicle.21

  1. 3.24 While in some circumstances it would be open to conclude that an individual offender should not be precluded from deriving a benefit from the death of the deceased person, the Commission considers that individual offenders responsible for these offences may have been so egregiously reckless or negligent in their actions that they ought not to benefit. Offences where the moral culpability of the offender can vary significantly are therefore more appropriately considered by the court on a case-by-case basis.

Culpable driving causing death

  1. 3.25 Culpable driving causing death is also a serious offence with a maximum sentence of 20 years imprisonment.22 Similar to manslaughter by negligence, the offender must have been criminally negligent but the degree of that negligence can vary. A person can be convicted of culpable driving causing death for driving a motor vehicle recklessly, negligently or while incapable of properly controlling the motor vehicle due to the influence of a drug or alcohol.23 The minimum degree of negligence that needs to be proven is the same degree as that required to support a charge of manslaughter.24
  2. 3.26 Victoria Police and the Elder and Succession Committee of the New South Wales Law Society observed that the circumstances in which motor manslaughter and culpable driving offences occur vary significantly.25

 

  1. 3.27 In Victoria, there have been convictions for culpable driving causing death where:

a person who was found to have levels of cannabis in their blood that would impair driving skills drove through a ‘give way’ sign into the path of a truck, killing both passengers26

a drunk driver was driving while disqualified and at high speeds27

a 19-year-old driver failed to allow enough time to stop at a ‘give way’ sign and sped through an intersection.28

  1. 3.28 Culpable driving causing death is excluded from the application of the forfeiture rule under the common law in the United Kingdom.29 However, the Commission considers the high degree of negligence in many of these cases to be sufficient to make the application of the forfeiture rule appropriate.

Failure to control a dangerous, menacing or restricted breed dog that kills a person

  1. 3.29 It is also an offence to fail to control a dangerous, menacing or restricted breed dog that kills a person.30 The maximum penalty is 10 years imprisonment.
  2. 3.30 A person is guilty of the offence when a reasonable person would have realised that failing to keep the dog under control would expose others to an appreciable risk of death.31 This is a similar standard of negligence to that which applies to the offence of dangerous driving causing death, which is discussed at [3.42]–[3.49].
  3. 3.31 Whereas the Commission considers that the forfeiture rule should not apply to dangerous driving causing death, the offence of failing to control a dangerous dog that kills a person should be within the scope of the rule. There is a possibility that an offender in these circumstances may have created or encouraged the circumstances that caused the dog to be violent and thus bear responsibility for the existence of the danger in a way that a person in control of a motor vehicle does not.

Aiding and abetting

  1. 3.32 A person who aids, abets, counsels or procures another to commit an unlawful killing may be tried or indicted as a principal offender.32 They will also be subject to the forfeiture rule, although this may be unclear to administrators and executors of estates. The Forfeiture Act 1982 (UK) (‘the UK Act’), the Forfeiture Act 1991 (ACT) (‘the ACT Act’) and the Forfeiture Act 1995 (NSW) (‘the NSW Act’) define an unlawful killing as including aiding, abetting, counselling or procuring an unlawful killing.33
  2. 3.33 The Commission considers that the rule should apply to anyone who aids and abets the commission of an offence that is within the scope of the rule. The Crimes Act does not distinguish between the principal offender and a person who aids, abets, counsels or procures them to commit the offence, and nor should the forfeiture rule. The inclusion of aiding, abetting, counselling and procuring an offence within the definition of unlawful killing in the proposed Forfeiture Act would reinforce this position.34

Offences that should be excluded from the rule

  1. 3.34 Certain offences, by their nature, ought not to attract the application of the forfeiture rule as a matter of public policy. These are offences for which any person committing the offence would have a low level of moral culpability and responsibility.
  2. 3.35 The exclusion of some offences from the forfeiture rule was favoured by a wide range of submissions and parties consulted during the course of the reference, including judges of the Supreme Court of Victoria, participants in the Commission’s roundtables, and submissions from State Trustees, Professor Prue Vines and Janine Truter.35
  3. 3.36 The Crime Victims Support Association considered that the forfeiture rule should apply to all instances of an unlawful killing without exception, as long as the act that causes the death is a crime in Victoria.36 The Commission does not agree, in view of the unfair consequences that applying the rule without exception can cause.

Offences outside the Crimes Act

  1. 3.37 A death may result from actions that are an offence but the offence involves such a low degree of culpability on the part of the person responsible that their actions would not be an indictable offence under the Crimes Act.
  2. 3.38 The potential for the forfeiture rule to apply to offences outside the Crimes Act was raised by participants at the Commission’s first roundtable.37 The example given was of an accident that kills a family member working on a family farm—and for which the owner of the farm may be responsible under the Occupational Health and Safety Act 2004 (Vic)38—but which would not amount to the level of negligence required to sustain charges for an indictable offence related to the death itself. The absolute and inflexible application of the forfeiture rule in these circumstances would be unduly harsh and only add to the family tragedy. In view of the lower level of culpability attached to such offences, there would also be little community objection to allowing the offender to inherit.
  3. 3.39 While the court is unlikely to apply the forfeiture rule in these circumstances, the Commission is also aware that forfeiture rule cases do not often appear before the court. Approximately half of all estates are administered informally by non-professional executors who would be responsible for applying the forfeiture rule in the first instance.39 The majority of forfeiture rule cases also settle before litigation.40 In the interests of clarity and certainty for non-professional executors, the Commission recommends that the proposed Forfeiture Act specify that the forfeiture rule apply only where the killing is or would be murder or another indictable offence under the Crimes Act, unless specifically excluded by the Forfeiture Act.

Indictable offences

  1. 3.40 In the Commission’s view, the forfeiture rule should apply as a general principle to all instances of murder and other indictable homicide offences under the Crimes Act,
    except for the following offences:

dangerous driving causing death

manslaughter in pursuance of a suicide pact or aiding or abetting a suicide in pursuance of such a pact

infanticide.

  1. 3.41 These offences are characterised by:

the offender’s low degree of moral culpability

less stringent penalties

lack of conflict between the offender and deceased person as a contributing factor to the death

the possibility that the deceased person would not object to the offender obtaining a benefit from their estate

the likelihood that a court would not apply the rule if it had a discretion not to.

Dangerous driving causing death
  1. 3.42 Dangerous driving causing death was created as an offence in response to a community perception that there was a gap in seriousness between culpable driving causing death, which involves the same degree of negligence as manslaughter, and dangerous driving.41
  2. 3.43 While still a serious offence, dangerous driving causing death involves conduct that is less blameworthy than culpable driving causing death because an offender need not have operated the vehicle in either a reckless or criminally negligent manner.42 Rather, the offender will have driven at a speed or in a manner dangerous to the public, and by doing so, caused the death of another person.43 The two offences attract significantly different penalties—the maximum penalty for culpable driving causing death is 20 years imprisonment, while the maximum penalty for dangerous driving causing death is
    10 years imprisonment.44
  3. 3.44 Dangerous driving causing death convictions in Victoria have included cases where:

a driver killed his 97-year-old mother-in-law by colliding with another vehicle when driving while fatigued45

a motor vehicle crossed to the other side of the road without explanation but, although the vehicle was travelling within the legal speed limit, it was travelling over the advisory speed limit at that particular point in the road46

an 18-year-old driver who had held his licence for 12 days drove a high-powered vehicle in the rain and attempted to overtake another driver, crossed double lines and lost control of the vehicle and killed one of his passengers.47

 

  1. 3.45 Driving is a routine activity that can have deadly consequences when performed in a manner dangerous to the public. It is important that this activity be performed in accordance with the law and in a manner that minimises the danger to others.
  2. 3.46 However, there are times when even a person who is normally a careful and considerate driver can have a momentary lapse and make a fatal mistake. Participants at the Commission’s roundtables noted that the application of the forfeiture rule can be particularly harsh in relation to driving offences that result in death.48 The offence
    does not attract the application of the forfeiture rule in either New Zealand or the
    United Kingdom.
    49
  3. 3.47 It is also important to remember that, where the forfeiture rule may apply, the offender and the deceased person were in a close, personal and often familial relationship. In
    cases involving a motor-vehicle collision they will have generally been travelling together in the same vehicle. Given the lack of intention and the lower level of culpability, it is far more likely that the deceased person would want the offender to be able to inherit in these circumstances than if the offender and the deceased person were unknown to
    one another.
  4. 3.48 It is likely that a court would exercise a judicial discretion to modify the effect of the rule in the vast majority of these cases. Because of this, Professor Prue Vines suggested that deaths resulting from negligence in a car accident are particularly appropriate offences to exclude from the application of the rule, as it would save on costs to the estate.50 The New South Wales Supreme Court has modified the effect of the rule in relation to dangerous driving causing death in Straede v Eastwood.51 This case has been characterised as one involving ‘hostile relatives seeking to take pecuniary advantage of a tragic accident’ by opposing the application to modify the effect of the rule in a ‘speculative action devoid of merit’, thereby resulting in costs to the estate.52 Cases like this should not need to go to court and would not if dangerous driving causing death were excluded from the rule.53
  5. 3.49 Therefore, given the lower level of culpability of the offender, and in the interests of certainty and reducing costs, the Commission considers that it is appropriate that the offence of dangerous driving causing death be excluded from the application of the forfeiture rule.

Deaths pursuant to a suicide pact

  1. 3.50 Participants in a suicide pact can be held responsible for either manslaughter by suicide pact or aiding or abetting a suicide. The survivor of a suicide pact who is responsible for the fatal act will be guilty of manslaughter,54 and the forfeiture rule will preclude them from inheriting from the deceased person.
  2. 3.51 Suicide is no longer a criminal offence,55 but it is an offence in Victoria to aid or abet another to commit suicide.56 A person who aids or abets another to commit suicide in a suicide pact is also precluded by the forfeiture rule from inheriting or otherwise taking a benefit from another member of that pact.57 The moral culpability of the offenders in these offences is similar.

 

  1. 3.52 A death in pursuance of a suicide pact may result from the fatal actions of one or all parties to the pact. What distinguishes these offences from other types of unlawful killings is that the decision to commit the offence is entered into by agreement with the intention that none of the parties to the pact will survive. Parliament has also recognised in the Crimes Act that manslaughter by suicide pact differs from other types of manslaughter, as the maximum sentence is reduced to 10 years imprisonment as opposed to 20 years.58 The maximum sentence for a person guilty of aiding or abetting a suicide is five years imprisonment.59
  2. 3.53 The NZ Act excludes unlawful killings pursuant to a suicide pact from the scope of the forfeiture rule.60 State Trustees, The Institute of Legal Executives (Victoria) and Janine Truter all suggested that deaths in pursuance of a suicide pact should not result in the application of the forfeiture rule. Michael Tinsley commented that such offences are appropriate for the exercise of a judicial discretion to modify the effect of the rule.61 Janine Truter put the view that it is preferable to have laws that are clear, simple and unambiguous on the issue of aiding or abetting a suicide and suicide pacts so that the trauma of losing a loved one is not compounded by legal uncertainty, the cost of funding court action or the potentially random nature of judicial discretion.62
  3. 3.54 Given the low moral culpability of the offender and the tragic circumstances in which a suicide pact generally occurs, the court would be likely to exercise any judicial discretion in favour of the offender in these cases. This occurred in Dunbar v Plant,63 where Lord Justice Phillips indicated that the normal approach of the courts would be to provide total relief against forfeiture.64 He further suggested that:

The aiding or abetting of the suicide of another in pursuance of a suicide pact is an offence that is likely ‘to fall into the category of those [offences] in respect of which the public interest does not require a penal sanction’.65

Where ‘people are driven to attempt, together, to take their lives and one survives, the survivor will normally attract sympathy rather than prosecution’.66

  1. 3.55 Both Ms Plant and the deceased person (Mr Dunbar) were in their early twenties. Ms Plant was under suspicion of false accounting and theft from her employer. In fear of the potential consequences and the prospect of imprisonment, she decided to take her own life. Mr Dunbar did not want to live without her so decided to commit suicide alongside her. There were two failed attempts at suicide after which they attempted to hang themselves with bed sheets. The noose around Ms Plant’s neck became untied and she survived, but Mr Dunbar died. She then tried to cut her throat and wrists and jumped out of a window.

 

  1. 3.56 The tragic circumstances in which suicide pacts occur and the low moral culpability of the offender in these types of cases are further illustrated by two Victorian cases: DPP v Rolfe67 and The Queen v Marden.68 In DPP v Rolfe, an 81-year-old man was convicted of manslaughter by suicide pact following an attempted joint suicide with his wife. His wife was going to be placed in an aged care home and the couple did not want be separated. The couple was found unconscious after attempting to gas themselves but only Mr Rolfe could be saved. The offender was found to have been suffering severe psychiatric distress and depression at the time of the offence.69 In sentencing Mr Rolfe to a two-year suspended sentence, Justice Cummins accepted that the proper function of sentencing was to deter people from the unlawful taking of life; however, the principle of general deterrence was modified by Mr Rolfe’s psychiatric condition of major depression.70
  2. 3.57 In The Queen v Marden the offender also pleaded guilty to manslaughter by suicide pact. In that case, the offender and his wife suffered from a history of poor health. Mrs Marden suffered from severe rheumatoid arthritis that left her in chronic pain and unable to perform everyday tasks. Mr Marden was classified as an ‘Extremely Disabled Veteran’. He suffered cardiac problems, was wrongly diagnosed with lung cancer and had fractured a vertebra at the base of his spine, which required hospitalisation and ongoing physiotherapy and pain management. Mr Marden felt that he could no longer look after his wife and home and decided he had reached the end of his useful life. Justice Vincent accepted that neither Mr Marden nor his wife could see any prospect of an enjoyable life ahead of them, regarded the future with anxiety and both wished to end their lives. The offender attempted to electrocute his wife. Upon the failure of this attempt, he then smothered her and tried to end his own life by overdosing on pills, but was kept alive by his pacemaker.
  3. 3.58 Justice Vincent pointed out that ‘the entry into such an agreement reflects the extreme level of despair which it is reasonable to assume was experienced by the participants’.71 Justice Vincent also pointed out the limited role of specific or general deterrence in cases of this type when sentencing the offender to a two-year suspended sentence.72
  4. 3.59 In Dunbar v Plant, Lord Justice Phillips stated that:

A suicide pact may be rational, as where an elderly couple who are both suffering from incurable diseases decide to end their lives together, or it may be the product of irrational depression or desperation.In neither case does it seem to me that the public interest will normally call for either prosecution or forfeiture should one party to the
pact survive.73

  1. 3.60 Regardless of the reasoning for the decision to enter a suicide pact, it is clear that the circumstances that result in a suicide pact are tragic and that the offender does not intend to benefit from the death. Instead, the application of the forfeiture rule would have adverse consequences for the offender and compound the issues that led to them attempting suicide. Among the consequences of the forfeiture rule for the survivor of a suicide pact is the possible loss of a home they jointly owned with the deceased person, or their entitlement to other assets to which they may have contributed and which the deceased person would be likely to want them to have.

 

  1. 3.61 The Commission sees little benefit in applying the forfeiture rule to the survivor and requiring them to litigate to have the effect of the rule modified, which would place a further financial and emotional burden on the offender, the estate, and the family members of the deceased person.
  2. 3.62 Although the Commission recognises the importance of protecting human life, it also recognises the unique and tragic circumstances faced by those who have entered a suicide pact and their families. Given the low level of moral culpability of the offender and the circumstances in which these offences occur, there is unlikely to be any significant level of public opposition to the survivor of a suicide pact inheriting from the deceased person.
  3. 3.63 The Commission therefore recommends that deaths in pursuance of a suicide pact, for both the offences of aiding or abetting a suicide pursuant to a suicide pact and for manslaughter by suicide pact, should not result in the application of the forfeiture rule.74

Infanticide

  1. 3.64 Infanticide is an alternative verdict for murder in Victoria and occurs when a woman causes the death of her child within two years of giving birth in circumstances that would otherwise constitute murder.75 It is an offence of diminished responsibility.76 In order to be guilty of the offence of infanticide the offender must be disturbed because of a failure to recover from the effect of giving birth or must suffer a disorder consequent to giving birth.77 The forfeiture rule would currently preclude them from inheriting any property held on trust for the deceased infant.
  2. 3.65 Women who are responsible for infanticide generally suffer from severe psychiatric difficulties that cause an altered state of mind at the time of the offence. In The Queen
    v Azzopard
    i78 the offender was found to have suffered from post-partum depression when she put her five-week-old daughter in the bath face first, causing her to drown.
    The offender had sought the assistance of a government helpline and medical professionals had noted her depressed state prior to the offence. Expert evidence provided to the court put forward the opinion that this was:

a tragic case where a mentally disordered woman with a vulnerable personality killed her child in the context of a situation which was beyond her limited capacities to manage.79

  1. 3.66 The case of DPP v QPX80 also demonstrates the altered state of mind experienced by offenders in infanticide cases. In that case a mother caused serious injuries to infant twins, one of whom subsequently died, and was unable to articulate how the injuries had been sustained, although she admitted to having slapped one of the twins, to be unable to cope with her inability to settle the twins and to going ‘into a daze’. Justice Bongiorno found that the picture that emerged from her police interview was of a ‘distraught, frightened, and possibly mentally ill woman’81 and that her moral culpability was ‘either non-existent or of such a low degree as to be negligible’.82
  2. 3.67 Neither of these offenders had any history of criminality or mental illness prior to the birth of their children. Nor did they present an ongoing risk to the community or receive a custodial sentence. Both were also likely to need ongoing treatment and would continue to suffer considerably mentally and in other ways as a result of their crime.

 

  1. 3.68 State Trustees recommended that the forfeiture rule should not apply to offenders who have committed infanticide.83 Infanticide is excluded from the rule in New Zealand.84 In recommending the exclusion of infanticide, the New Zealand Law Commission regarded infanticide as sufficiently analogous to an acquittal on the grounds of mental impairment to justify its exception from the rule.85 The Victorian Law Reform Commission agrees with this opinion.
  2. 3.69 The blameworthiness and responsibility of the offender in infanticide cases are significantly reduced compared to other offenders under criminal law. The offence attracts, at the maximum, five years imprisonment,86 as opposed to potential sentences of life imprisonment or 20 years imprisonment on conviction for murder or manslaughter.87 In both The Queen v Azzopardi and DPP v QPX a non-custodial sentence was given.
  3. 3.70 In The Queen v Azzopardi, Justice Kellam emphasised the role of the offender’s illness in the offence stating that:

A person suffering from an illness such as that you suffered and which affected your responsibility for your action is not an appropriate person either to deter from acting in this fashion by the punitive sanctions of the law, or to be made an example of to others in order to deter them from acting in this way. There is no suggestion in this case of any lapse of behaviour of any culpable kind that arose otherwise than by reason of the illness from which you suffered at the time.88

  1. 3.71 Further, the Commission notes that infanticide is a very rare crime that, like verdicts of not guilty by mental impairment, affects only a limited and specific category of offenders. Its intersection with the forfeiture rule is also likely to be a very rare occurrence given the age of the victim. Consequently, the application of the forfeiture rule to such offences would be unlikely to have any deterrent effect. This was observed by Justice Bongiorno in DPP v QPX:

Apart from her lack of blameworthiness, no court could ever inflict a punishment on QPX more severe than that which this tragedy has itself imposed upon her and will continue to impose for many years, perhaps forever. She needs no deterrent from reoffending; nor is there much scope for the application of principles of general deterrence; that is to say, the deterrent effect of punishment on the general population. Infanticides and assaults by mothers on their babies are, fortunately, rare crimes in this community.89

  1. 3.72 In addition, infanticide offenders often suffer continuing mental health issues and vulnerabilities after the offence. According to expert testimony at trial, QPX continued to suffer after the infanticide from ‘an acute grief reaction with strong features of depression.90 It was considered that without significant support she would remain at risk of worsening depression and of suicide. The application of the forfeiture rule would only add to the distress experienced by offenders in these circumstances.
  2. 3.73 Given these factors, it is the view of the Commission that offenders responsible for infanticide should not be precluded, as a matter of public policy, from inheriting from their child. Infanticide should therefore be exempted from the common law rule of forfeiture.

 

Recommendations

3 The Forfeiture Act should specify that, subject to the exceptions in Recommendation 4, the forfeiture rule applies only where the killing, whether done in Victoria or elsewhere, would be murder or another indictable offence under the Crimes Act 1958 (Vic).

4 The Forfeiture Act should specify that the forfeiture rule does not apply where the killing, whether done in Victoria or elsewhere, would be an offence under the Crimes Act 1958 (Vic) of:

(a) dangerous driving causing death

(b) manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact, or

(c) infanticide.

 

Persons found not guilty by reason of mental impairment

  1. 3.74 The forfeiture rule does not apply at common law to persons found not guilty of an unlawful killing by reason of mental impairment.91 The Commission recommends that this exception be retained in the public interest and in the interests of justice.
  2. 3.75 In order to be found not guilty by reason of mental impairment an offender must prove that, at the time of committing the causative act, they were labouring under such a defect of reason from disease of the mind as to not know the nature and quality of the act they were doing, or if they did know, then they must not have known that the act was wrong.92 They will therefore not have formed the mental intent that needs to be proved to be held criminally responsible for the offence and are not morally culpable for their actions.93
  3. 3.76 An offender who was conscious that the act was one that they should not be doing will be held criminally responsible and will be subject to the application of the forfeiture rule despite any mental condition they might be suffering. For example, in Clift v Clift94an intellectually disabled woman suffering from a depressive illness and delusions murdered her aunt and then killed herself. Medical evidence showed that she knew what she was doing, and knew that it was wrong, even though her mental condition meant she was unable to refrain from killing her aunt. The forfeiture rule was therefore applied.
  4. 3.77 This exception only applies to a very specific class of offenders and does not provide an incentive for people to claim to have a mental impairment in order to inherit. While it is open to the court to infer that a perpetrator must have been mentally ill at the time of the offence,95 it is difficult in practice to prove that a person has a mental impairment.96 In addition, a finding of not guilty by reason of mental impairment has serious consequences and is not treated lightly by the courts.

 

  1. 3.78 Victoria Legal Aid noted the significant consequences to the offender of a finding of not guilty by reason of mental impairment or unfit to be tried.97 Under the Crimes (Mental Impairment and Unfitness to the Tried) Act 1997 (Vic) (CMIA), these consequences include a requirement that the offender undertake a supervision process that can be onerous and last for a significant period.98 The length of a supervision order is always indefinite and can last the rest of a person’s life.99 The process involves continual assessment and review of the person’s progress under the order. The length of time that people are ultimately detained can vary, and research has shown that detention under the CMIA in Victoria has ranged from three months to 36 years.100
  2. 3.79 Retaining the exception from the rule for persons found not guilty due to their mental impairment is also in the public interest as it may ease the burden of care for individuals on the state. A 2010 study on persons found not guilty by reason of mental impairment
    in Victoria suggests that the typical person who meets the requirements of this verdict
    is unemployed, unskilled and has not completed secondary schooling.101 Many people with a mental impairment will be likely to have ongoing care needs. If the forfeiture rule were to be applied to them, they may be more likely to require state support to meet these needs.

Options

  1. 3.80 The Commission’s terms of reference require it to consider this exception to the forfeiture rule. In doing so, the Commission has identified three options:

no change to the law

apply the rule at the court’s discretion

apply the rule without exception.

No change to the law

  1. 3.81 Not applying the forfeiture rule to persons found not guilty of an unlawful killing by reason of their mental impairment ensures that they are not held accountable for actions for which they have been proven not to be responsible.102
  2. 3.82 This absolute exception exists in most common law jurisdictions, including every Australian state and territory other than New South Wales.103 In New South Wales, the court has a discretion, on application, to apply the forfeiture rule to a person who is not guilty by reason of mental illness.104
  3. 3.83 The majority of submissions received by the Commission and the majority of views expressed during consultations support the retention of the existing exception. These include comments made by judges of the Supreme Court of Victoria and most of the participants at the Commission’s roundtables and submissions by the Property and Probate Section of the Commercial Bar Association, the Law Institute of Victoria, Victoria Legal Aid, the Victorian Institute of Forensic Mental Health (Forensicare) and Professor Prue Vines.105

 

  1. 3.84 Forensicare’s submission stated that:

The exception is generally accepted and flows from the long established criminal law principle that a person should not be held criminally responsible for an offence if, at the time the offence occurred, they did not have the capacity to form a guilty mind in committing the offence because of a mental impairment…

Retaining the exception is important to ensure that the rights of persons found not guilty by reason of mental impairment are safeguarded and that they are not held accountable for actions for which they are not morally or criminally responsible.106

  1. 3.85 Forensicare also expressed concern that the exercise of any discretion to apply the forfeiture rule to a person found not guilty by reason of mental impairment ‘implies a degree of scepticism about a finding that a person is not guilty of an offence by reason
    of mental impairment’.107

Apply the rule at the court’s discretion

  1. 3.86 New South Wales,108 Ohio109 and Indiana110 have legislation that allows the rule to be applied to persons found not guilty due to their mental impairment. The Commission is unaware of any other jurisdictions in which the rule can be applied to persons found not guilty by reason of mental impairment.
  2. 3.87 Under the NSW Act, an interested person can apply to the court for an order that the forfeiture rule apply to someone who has been found not guilty by reason of mental illness as if they were found guilty of murder.111
  3. 3.88 Likewise, in Indiana, if the killer has been found ‘not responsible because of insanity at the time of the crime’, another person can launch a civil action to have them declared a constructive trustee of the property for the benefit of third parties who would have otherwise been entitled if the person responsible had predeceased the deceased person.112 In Ohio, there is a reversal of this onus. Legislation in that state prohibits a person who has been found not guilty by reason of insanity from benefiting from the deceased person’s estate,113 but they can file a complaint in probate court to declare their right to benefit from the death.114
  4. 3.89 The Institute of Legal Executives (Victoria) supported the introduction of legislation in Victoria along the lines of the NSW Act. They argued that the court should have the discretion to apply the rule to a person found not guilty by reason of mental impairment.115
  5. 3.90 The discretion to apply the rule under the NSW Act was introduced to ‘prevent mentally ill murderers from profiting from their crime by applying the forfeiture rule’.116 These reforms were contentious and were opposed strongly within Parliament and by organisations such as the Council for Civil Liberties and the International Commission of Jurists.117 The Legislation Review Committee formed the view that ‘treating a person who has been found not guilty of a crime as if they had been convicted of that crime is a trespass on their fundamental rights’.118

 

  1. 3.91 The forfeiture rule has been applied against a person who had been found not guilty by mental illness on three occasions in New South Wales.119 Consultations undertaken with judges of the New South Wales Supreme Court, the Elder Law and Succession Committee of the New South Wales Law Society and other New South Wales-based legal professionals suggest that there have been no major issues resulting from the change in the law and that the application of the forfeiture rule in these cases was appropriate.120
  2. 3.92 However, the rationale for applying the rule to a person who is not morally culpable for the offence was not well articulated in Parliament and has not been made clear in the cases. Factors that have been considered relevant in determining whether to apply the forfeiture rule to a person found not guilty by reason of mental illness in New South Wales have included the offender’s prior history of violent behaviour and lack of remorse.121 Such behaviour could be a manifestation of the mental impairment itself.122 Any outcome in which the forfeiture rule would be applied to a person who has been found not guilty because of a mental impairment on the basis of the symptoms of that mental impairment would be inappropriate.
  3. 3.93 The impact of the death of the deceased person on third parties has also been taken into account. In Hill v Hill,123 where a man was found not guilty of the killing of his de facto spouse because of mental illness, the court considered the effect that the application of the forfeiture rule would have on their children. The Commission considers this to be an extension of the rule beyond its purpose in Victoria, which is to prevent an offender from benefiting from their crime rather than to distribute assets to the most deserving beneficiary. Family provision legislation is available to innocent beneficiaries who wish to increase their share of the deceased estate.124

Apply the rule without exception

  1. 3.94 The Crime Victims Support Association supported the automatic application of the rule to persons found not guilty by reason of mental impairment without exception because:

the killer might still have understood that they could benefit financially by their actions even if they didn’t understand that the act itself was wrong

where the killer is likely to spend the bulk of their life institutionalised, the victim may have wanted their wealth directed to another beneficiary who might use that wealth more productively

there is nothing fundamentally wrong with denying an innocent person an inheritance.125

  1. 3.95 However, Professor Prue Vines expressed concern that removal of the exception would suggest that the verdict is meaningless, is wrong or that the mental illness is fraudulent or not real.126 The Commission holds similar concerns to Professor Vines.
  2. 3.96 The forfeiture rule is a rule of public policy that prevents an offender from benefiting from their crime. It should not be be used in opposition to legal standards that determine an offender’s moral culpability or responsibility for an offence.

The Commission’s View

  1. 3.97 The Commission recommends that the existing exception to the forfeiture rule for persons found not guilty by reason of their mental impairment be retained. This exception is a generally accepted principle of long standing that safeguards the rights of persons with a mental impairment.127
  2. 3.98 Few jurisdictions apply the forfeiture rule to persons found not guilty by reason of mental impairment. Those that do have departed from well-settled principles of law that a person who is not guilty by reason of mental impairment is not, and cannot, be held morally culpable for their actions.
  3. 3.99 While the Commission recognises the views and concerns of victims, the purpose of the forfeiture rule is not to provide a de facto form of compensation to victims of crime or another avenue to punish an offender when they have been found not to be responsible for an act. The Commission agrees with the views of Victoria Legal Aid that the competing interests of other parties in claiming a benefit from an estate should not form ‘a basis for removing existing protections from a special category of persons that the civil and criminal law treat differently in other ways in recognition of their vulnerability’.128
  4. 3.100 It would also ensure that there is a consistent approach to the issue of mental impairment in Victorian legislation. Under the Confiscation Act 1997 (Vic), a forfeiture order to relinquish tainted property cannot be sought against someone found not guilty by reason of mental impairment.129
  5. 3.101 The Commission shares the view of the Law Institute of Victoria, that retaining the exception also supports the underlying public policy rationale of the CMIA that seeks to achieve a therapeutic aim by promoting an increased understanding and tolerance of mental illness that can give rise to a mental impairment.130 Exempting persons found not guilty of an unlawful killing by reason of their mental impairment from the forfeiture rule is consistent with this policy aim.
  6. 3.102 Given these reasons, the Commission sees little benefit in extending the application of the forfeiture rule to persons found not guilty by reason of mental impairment. The existing exception should therefore continue to apply.

Recommendation

5 The existing exception to the common law rule of forfeiture for persons found not guilty by reason of mental impairment should be retained.

 

 

 

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