4 Judicial discretion to modify the effect of the rule

Introduction

  1. 4.1 As discussed in Chapter 3, the proposed Forfeiture Act would set out the unlawful
    killings to which the forfeiture rule applies. Although promoting certainty, this reform would not address concern about the unfair consequences that can arise from applying the rule inflexibly. For this reason, the Commission proposes that the Forfeiture Act also provide the court with the discretion to modify the effect of the rule where the justice
    of the case requires.
  2. 4.2 The consequences of the forfeiture rule are significant—and are intended to be­—because the rule conveys the community’s condemnation of anyone who unlawfully takes the life of another. However, the rule can operate unfairly in some cases. The introduction of a judicial discretion will provide an appropriate balance between preventing offenders from benefiting from their crime and allowing those who are less morally culpable or responsible in the circumstances to maintain their right to certain benefits and entitlements.
  3. 4.3 This chapter explores the details of how the discretion would be exercised. Relevant legislative provisions are identified and most are drawn from 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’).

The Commission’s approach

  1. 4.4 The United Kingdom, the Australian Capital Territory and New South Wales provided the court with the discretion to modify the effect of the forfeiture rule so that it could ameliorate the consequences for an offender with a low degree of moral culpability. At the time, the court was expected to exercise its discretion in circumstances such as when the unlawful killing occurred in response to ongoing family violence1 or pursuant to a suicide pact2 or was an assisted suicide3 or was caused by culpable driving.4 In practice, courts in these jurisdictions have rarely been called on to exercise this discretion. The Commission expects that the exercise of the discretion would similarly be confined to exceptional cases in Victoria.

 

  1. 4.5 The proposed Forfeiture Act would provide the court with the discretion in respect of all offences to which the forfeiture rule applies except murder. An offender or other interested person would be able to make an application for a forfeiture modification order. The court would make the order if satisfied that it would be in the interests of justice to modify the effect of the rule.
  2. 4.6 In determining whether justice requires the effect of the rule to be modified, the court would have regard to the offender’s moral culpability and responsibility for the unlawful killing and other matters that it considers relevant. The court would also have a broad discretion to modify the effect of the rule as appropriate in the circumstances.
  3. 4.7 A forfeiture rule modification order would be able to be made in respect of any or all of the property, entitlements or other benefits that the forfeiture rule prevents the offender from obtaining.

Scope of the discretion

Unlawful killings to which it would apply

  1. 4.8 On application, the court would have the discretion to modify the effect of the forfeiture rule whenever it applies, except when the offender has committed murder. The UK Act, the ACT Act and the NSW Act also exclude murder from the scope of the discretion.5
  2. 4.9 The court would not have the discretion to apply the rule where it would not otherwise apply. In this respect, the scope of the discretion would align with that provided by the UK and ACT Acts. The NSW Act uniquely provides for the court to apply the rule to persons who have been found not guilty because of mental illness.6

Exclusion of murder

  1. 4.10 The consultation paper stated that the Commission did not propose to open debate about whether the rule as it applied to convicted murderers should be modified in any way.7 A murderer has intentionally or recklessly and without lawful justification killed their victim or has inflicted serious injury that caused their victim’s death. It is the most serious of homicides and attracts the strongest penalty.
  2. 4.11 Some submissions made in response to the consultation paper suggested that the Commission’s position should be revisited. It was argued that the effect of the rule should be modifiable for an offender with a low degree of moral culpability, particularly when the murder was a response to ongoing and long-term family violence.8
  3. 4.12 Most organisations and individuals consulted during the course of the reference supported the general proposition that the forfeiture rule should always apply to murder9 and the Commission’s view remains unchanged. Murder is the most serious of homicides and it would be contrary to the interests of public policy to allow the way in which the forfeiture rule applies to this offence to be modified in any way. In Victoria, a murderer is always morally culpable for their actions and, regardless of whether a difficult history might explain their actions, there can be no excuse for their crime or any justification for allowing them to benefit from that crime.

 

  1. 4.13 Loddon Campaspe Community Legal Centre proposed that any person convicted of murder before the offence of defensive homicide was introduced, in circumstances where the charge of defensive homicide was later available, should be able to apply to the court to have the effect of the rule modified.10 The Government subsequently introduced into Parliament a Bill to abolish the offence of defensive homicide.11
  2. 4.14 Even if the offence were retained, the Commission does not consider it in the public interest to re-open historic cases so that an alleged or convicted offender can be retried in a civil court for an offence that did not exist at the time. The retrospective application of the forfeiture rule in this way could also put into question the distribution of estates that have long since been resolved.
  3. 4.15 Concern was expressed about the effect that the abolition of the offence of defensive homicide would have on the ability of offenders who kill in response to ongoing family violence to apply for relief from the effect of the rule.12 If an offender in these circumstances is charged with murder instead, they would be unable to apply for a forfeiture modification order. The Commission shares this concern. Victoria’s Forfeiture Act should accommodate any realignment of homicide offences upon the abolition of defensive homicide so that victims of domestic violence are able to apply for relief from the operation of the rule.

Determining what the ‘justice of the case’ requires

  1. 4.16 The introduction of a judicial discretion allows the law to be adaptable to the particular circumstances of the case. It follows that the court should be given broad discretion in order to respond to the unusual circumstances that would require a departure from the normal application of the rule.
  2. 4.17 At the same time, the legislation should direct the court’s attention to the purposes of the discretion, which is to consider the circumstances of the case. The UK and NSW Acts have been criticised for giving the court insufficient guidance in exercising the discretion and because no clear principle dictates when the bar on profiting should apply.13 The Commission is concerned to ensure that forfeiture rule modification orders are made in view of the offender’s moral culpability and responsibility for the unlawful killing.
  3. 4.18 The UK and ACT Acts state that the court may make an order that modifies the effect of the forfeiture rule if ‘the justice of the case requires’ the effect of the rule to be modified.14 The criterion in the NSW Act is that ‘justice requires the effect of the rule to be modified’.15 Although the wording is similar, the Commission prefers the text of the UK and ACT Acts because it draws attention to the circumstances of the particular case.
  4. 4.19 The NSW Act allows the court to take a broader view of the circumstances of the offender and other beneficiaries and aim to achieve equitable outcomes between these beneficiaries. The Commission disagrees with this approach being taken in Victoria. Forfeiture rule modification orders should not be sought or made for the purpose of redistributing property to the person the court considers the most deserving. Part IV of the Administration and Probate Act 1958 (Vic) already provides an avenue for beneficiaries to apply for a deceased person’s estate to be redistributed in their favour.

 

  1. 4.20 Three factors to which the court should have regard in determining whether the effect of the rule should be modified appear in similar form in each of the UK, ACT and NSW Acts: the conduct of the offender, the conduct of the deceased, and any other circumstances that the court considers material.16
  2. 4.21 The NSW Act adds a fourth factor: ‘the effect of the application of the rule on the offender or any other person’.17 As this factor draws the court into reviewing how the deceased person’s estate is distributed among the beneficiaries, the Commission does not recommend that it appear in the Victorian Forfeiture Act.
  3. 4.22 The Commission therefore considers that Victoria’s Forfeiture Act should expressly direct the court’s attention to the offender’s moral culpability and responsibility for the unlawful killing. The court would still consider the three factors that are common to the UK, ACT and NSW Acts but it would be in the context of assessing culpability and responsibility.
  4. 4.23 For these reasons, the Commission recommends below that the court should be empowered to make a forfeiture rule modification order if satisfied, having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters as appear material, that the justice of the case requires the effect of the rule to be modified.

Moral culpability

  1. 4.24 In its consultation paper, the Commission sought submissions on the guidance that the court should be given in exercising its discretion.18 Victoria Police suggested that the following factors could be considered relevant in determining moral culpability:

the degree of the offence

the relationship between the offender and the deceased person prior to the offence

the public interest

any interactions with the Prisoner Compensation Quarantine Fund.19

  1. 4.25 Victoria Police added that the court could consider victim impact statements or input from other family members and interested parties when making a decision on whether to make a forfeiture rule modification order.20
  2. 4.26 The Crime Victims Support Association proposed that the views of the deceased person should be a relevant consideration where it can be demonstrated that they forgave the offender.21
  3. 4.27 The Property and Probate Section of the Commercial Bar Association suggested that the sentencing judge should exercise the discretion in the first instance because they would have synthesised all the relevant matters. The judge would have regard to:

the sentence

any appellate decision

victim impact statements

aggravating factors involved with the offence

the offender’s conduct after the commission of the offence

the responsibility of the deceased person to provide for the offender

the likelihood of the offender’s release from prison.22

  1. 4.28 The idea that the sentencing judge could exercise the discretion generated interest at the Commission’s second roundtable,23 but there are significant practical barriers to intervening in the administration of the court list in order to have the sentencing judge decide on a forfeiture rule modification order. The parties to the criminal proceedings are not necessarily the same as those who would have an interest in an application for a forfeiture rule modification order. In addition, the sentencing judge may not be in a position to assess the responsibility of an offender to a civil standard. The evidentiary standards of a criminal trial are higher than in a civil trial and some evidence that is relevant at this standard may have been excluded from the criminal trial.
  2. 4.29 Nevertheless, it is important that the views of the sentencing judge are taken into account in assessing the offender’s moral culpability. A simpler solution would be to require the court, in considering an application for a forfeiture rule modification order, to have regard to the findings of fact by the sentencing judge. Similarly, the findings of the coroner would also have relevance, particularly where there has not been a criminal trial or conviction.
  3. 4.30 The court should also have regard to the offender’s state of mind at the time of the offence. The forfeiture rule is invoked to prevent an offender from taking a benefit arising from the death of the deceased person because of the conduct that caused the death. Any conduct or characteristics of the offender that are unrelated to the offence would be irrelevant to this assessment. For example, in Straede v Eastwood,24 relatives of the deceased person asked the court to consider the offender’s conduct in being involved in a ménage à trois with the deceased person and a third party over a 20-year period. The court declined to have regard to this conduct in making its decision as to whether to modify the effect of the rule.
  4. 4.31 The impact of the offence on victims is also a relevant consideration in this process. The Commission agrees with the views of Victoria Police and the Property and Probate Section of the Commercial Bar Association that the court should have regard to victim impact statements in assessing whether the effect of the forfeiture rule should be modified.
  5. 4.32 Victim impact statements will inform the court about cases where the deceased person forgave the offender, which the Crime Victims Support Association considers a relevant consideration. They could also provide information about the views of families that
    may have come to some agreement or reconciliation, such as in
    R v R,25 where the offender’s application to have the effect of the rule modified was supported by surviving family members.
  6. 4.33 However, given the varying circumstances in which unlawful killings occur, it would not be prudent to provide an exhaustive list of factors for the court to take into account.

Recommendations

6 The Supreme Court should be empowered to make a forfeiture rule modification order if satisfied that, having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters
as appear to the Court to be material, the justice of the case requires the
effect of the rule to be modified.

7 In determining the moral culpability of the offender, the Supreme Court should have regard to:

(a) findings of fact by the sentencing judge

(b) findings by the Coroner

(c) victim impact statements presented at criminal proceedings for
the offence

(d) submissions on interests of victims

(e) the mental state of the offender at the time of the offence, and

(f) such other matters that in the Court’s opinion appear to be material
to the offender’s moral culpability.

 

Cases and examples

  1. 4.34 Courts in the United Kingdom and New South Wales have modified the forfeiture rule in a range of circumstances where the offender had a low level of moral culpability. These and other circumstances were identified in submissions in support of providing relief against the effect of the rule in Victoria. They include circumstances where:

the unlawful killing was unintentional and non-violent

the offender was the victim of ongoing family violence

the offender was motivated by compassion

the offender had reduced responsibility

the offender was a minor.

  1. 4.35 They are summarised below and illustrate the need for the court to have a broad discretion in determining what the justice of the case requires and how to modify the effect of the rule.
When the unlawful killing was unintentional and non-violent
  1. 4.36 Submissions from Professor Prue Vines, State Trustees, the Property and Probate Section of the Commercial Bar Association and The Institute of Legal Executives (Victoria) suggested that the application of the forfeiture rule to unintentional killings may be unjust.26 In addition, some participants at the Commission’s roundtables said that the application of the forfeiture rule can be particularly unfair in negligent homicide or culpable driving cases.27

 

  1. 4.37 The forfeiture rule has been modified in one such case in New South Wales. In Straede v Eastwood, Mr Straede applied to have the effect of the rule modified after pleading guilty to dangerous driving and being sentenced to two years imprisonment.28His wife had been killed in a car accident when he was at the wheel. Justice Palmer agreed to modify the effect of the rule, noting that there had been no suggestion that Mrs Straede’s death was premeditated or that Mr Straede sought to profit from it.29
When the offender was the victim of ongoing family violence
  1. 4.38 In the United Kingdom, courts have exercised the discretion to modify the effect of the rule in some cases involving family violence.30 In the English case of Re K Deceased31 a woman unintentionally shot and killed her husband who, in a rage, had followed her into a room. She had picked up a loaded shotgun and taken off the safety catch with the intention of threatening him.
  2. 4.39 Victoria Police, the Property and Probate Section of the Commercial Bar Association
    and Professor Prue Vines made submissions proposing that a judicial discretion be available to modify the effect of the rule in situations where a victim of family violence kills their abuser.32
  3. 4.40 Family violence is a serious problem in Victoria and the community is generally sympathetic to victims. The law in Victoria recognises that unlawful killings that take place in the context of family violence may differ from other types of homicide. This indicates that in individual cases the offender’s culpability may be such that it would be unduly harsh to prevent them from taking a benefit from the deceased person.
  4. 4.41 In Victoria, women have been found guilty of the manslaughter of an abusive partner in cases where:

a woman stabbed her partner in the course of a violent dispute, and received a wholly suspended sentence33

a woman disarmed her partner and then shot him as he moved toward her during a violent dispute, and received a five-year custodial sentence34

a woman who experienced 50 years of domestic violence from her alcoholic partner killed him in fear that he was about to attack her with an axe, and received a
non-custodial sentence.35

  1. 4.42 The forfeiture rule, as it currently stands, would prevent these offenders from inheriting from their deceased partner. They could lose their home, if they owned it jointly with the deceased person, as well as other assets to which they may have been entitled.
When the offender was motivated by compassion
  1. 4.43 There are circumstances in which an offender is responsible for an unlawful killing and yet their motivation was not to profit or to cause harm to the deceased person, but to relieve them of their suffering from a medical condition. The application of the forfeiture rule in some of these cases can produce harsh results.

 

  1. 4.44 The aiding or abetting of a suicide is one such offence. While suicide is no longer a criminal offence,36 it is an offence in Victoria to aid or abet another in the commission of a suicide.37 Aiding or abetting a suicide is distinguished from other unlawful killings in that the offence is committed at the choice of the deceased person. However, the forfeiture rule will still preclude an offender who is responsible for this offence from inheriting from the deceased person.38
  2. 4.45 Aiding or abetting a suicide was identified in consultations as an offence of potentially lower moral culpability that may appropriately be excluded from the application of the forfeiture rule, either fully or at the discretion of the court in individual cases.39 Janine Truter preferred to have laws that are clear, simple and unambiguous 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.40
  3. 4.46 Parliament has recognised that, as an offence, aiding or abetting a suicide has characteristics that distinguish it from the more abhorrent acts of unlawful killing that warrant a bar on inheritance. The maximum penalty for aiding or abetting a suicide in Victoria is five years imprisonment.41 However, in recognition of the usually tragic circumstances in which these crimes take place, the sentences imposed are often more lenient. In both R v Hood42 and R v Maxwell43 the court imposed wholly suspended sentences on the offenders.
  4. 4.47 Generally, these cases involve a great deal of personal tragedy for all involved and are motivated by compassion and a desire to end the suffering of the deceased person. For example, in R v Maxwell, Mr Maxwell had assisted his wife to commit suicide to relieve her suffering from terminal cancer.44 Mr Maxwell had attempted on numerous occasions to dissuade his wife from committing suicide and had sought herbal remedies to cure her. Mrs Maxwell had decided that she wished to die using a method she read about and required her husband’s assistance to procure the materials and assist in performing the fatal acts.
  5. 4.48 Those who aid or abet a suicide are often close to the deceased, as in R v Maxwell, and it is likely that, rather than wishing to disinherit a beneficiary who helped them to commit suicide, a deceased person may appreciate their assistance and perhaps even want to reward them.45 It may therefore be appropriate in some circumstances for the court to modify the effect of the forfeiture rule.
  6. 4.49 Another offence that might be motivated by compassion is a ‘mercy killing’ where the offender kills the victim in order to end the deceased person’s suffering as a result of a medical condition. Criminal prosecutions of mercy killings are rare, although they have occurred in Victoria. In R v Klinkermann,46 an elderly man was convicted of attempting to murder his wife, who had a significant disability and was dying, but was unable to communicate that she wanted to end her life.

 

  1. 4.50 In Re Dellow’s Will Trusts,47the offender suffered from depression as a result of her husband’s helplessness following a number of strokes.She had turned on the gas taps on the kitchen stove and remained in the kitchen with her husband until they both died.
    The court found she had unlawfully killed her husband and was not entitled to his estate, but said:

It is in these circumstances that I find it somewhat repellent to have to hold that the wife was guilty of a crime which ranks amongst the most serious that can possibly be committed. The law in its concern for the protection of human life must be strong and, indeed, severe, but I cannot refrain from saying that, in its bearing on such a case as this, it is clumsy, crude and indeed, nowadays, if the case is regarded sympathetically, somewhat uncivilised… This is clearly a case for compassion rather than condemnation.48

  1. 4.51 However, unlike the situation where someone has committed manslaughter in pursuance of a suicide pact, or has aided or abetted a suicide in pursuance of such a pact, an offender who aids or abets a suicide or claims to have committed a mercy killing may be primarily motivated to benefit in some way from the deceased person. The motivation of an offender is open to interpretation and it is important that vulnerable persons are protected from those who would prey upon their vulnerabilities for financial gain. For this reason, the Commission has not recommended that these offences be excluded from the operation of the forfeiture rule. Under the proposed Forfeiture Act, the court may agree to an application to modify the effect of the rule in view of the circumstances of an individual case.
When the offender had reduced responsibility
  1. 4.52 The strict application of the forfeiture rule can likewise produce unjust outcomes when the offender has some form of mental impairment. While the forfeiture rule does not apply to an offender who is found not guilty by reason of mental impairment, an offender who is found guilty of the offence may have a mental impairment that reduces the level of their moral culpability and responsibility for the crime. This impairment might be taken into account in sentencing,49 but the forfeiture rule would still preclude the offender from taking a benefit from the deceased person’s estate.
  2. 4.53 Courts in New South Wales and the United Kingdom have modified the effect of the forfeiture rule because of the reduced responsibility of the offender.50 For example, in R v R,51 the forfeiture rule applied to a 13-year-old boy who had killed his mother and sister and was found by the court to have diminished responsibility as a result of physical, sexual and emotional abuse by his father. He successfully applied to the court to have the effect of the rule modified in New South Wales and was supported in his application by his grandmother and older brother.
When the offender was a minor
  1. 4.54 The forfeiture rule will prevent offenders who were minors at the time of their offence from inheriting.52 However, minors are not regarded as having the same level of criminal responsibility or culpability as adult offenders in the criminal justice system, particularly if they are within the younger age range of offenders, and are subject to the special protections of the Children, Youth and Families Act 2005 (Vic).

 

  1. 4.55 Minors are nevertheless held responsible for their crimes and many who commit unlawful killings are aware that what they are doing is wrong. However, their reduced responsibility and moral culpability could be relevant to an assessment by the court as to whether the effect of the forfeiture rule should be modified in the interests of justice in a particular case.

Extent to which the rule can be modified

  1. 4.56 The court would be able to modify any of the benefits that the forfeiture rule prevents the offender from obtaining. For example, the rule could preclude an offender who was responsible for the death of their spouse from taking the jointly owned matrimonial home by survivorship as well as a number of gifts made by her will. In the circumstances, the court may decide that losing the interest in the home is unjust but the loss of other benefits is not.
  2. 4.57 The UK, ACT and NSW Acts contain similar provisions that enable the court to modify some or all of the property interests affected by the forfeiture rule.53 For example, section 3(3) of the ACT Act provides that:

(3) An order … may be made in respect of any interest in property that the offender would have acquired but for the operation of the forfeiture rule and may modify the effect of the rule in either or both of the following ways:

(a) in respect of any 1 interest in property affected by the rule—by excluding the application of the rule in respect of all of the property or any part of it;

(b) where more than 1 interest in property is affected by the rule—by excluding the application of the rule in respect of all of the interests or any of them.

  1. 4.58 However, the equivalent provision in the NSW Act is presented only as an example of how the effect of the rule can be modified. In a separate provision that does not appear in the other Acts, the court’s discretion is more broadly expressed:

6 Forfeiture modification orders may be moulded to suit circumstances

(1) The Supreme Court may make a forfeiture modification order in such terms and subject to such conditions as the Court thinks fit.

  1. 4.59 The Commission considers that the court should have this breadth of discretion in Victoria. Like the NSW Act, the proposed Forfeiture Act would not confine the subject of the forfeiture rule modification to interests in property. The modifications—and combinations of modifications—that the court may order could be greater than those encompassed by the ACT and UK Acts.
  2. 4.60 As discussed in Chapter 5, the Commission recommends that existing relevant legislation be amended to set out the effect of the rule on property and other benefits, including the offender’s eligibility to apply for family provision. The court’s discretion should extend to modifying the effect of the rule as set out in the amended legislation. It follows that the Forfeiture Act should provide a broadly expressed power.

Recommendation

8 The Forfeiture Act should empower the Supreme Court to make a forfeiture rule modification order that modifies the effect of the rule in such terms and subject to such conditions as the Court thinks fit.

 

Forfeiture rule modification orders

  1. 4.61 A range of procedural issues related to the making of forfeiture rule modification orders needs to be addressed in the legislation.
  2. 4.62 The Commission is required by the terms of reference to propose specific legislative mechanisms for giving effect to the legislative reform that it recommends. In providing the following details of the proposed Forfeiture Act, it has drawn from the equivalent provisions in the ACT and NSW Acts in the interests of providing consistency where practicable.

Who may apply

  1. 4.63 The proposed Forfeiture Act should define who has standing to apply for a forfeiture rule modification order. In New South Wales an ‘interested person’ may apply to the court for a forfeiture modification order.54 An ‘interested person’ is defined as:

(a) an offender

(b) the executor or administrator of the estate of a deceased person

(c) a beneficiary under the will of a deceased person or a person who is entitled to any estate or interest on the intestacy of a deceased person

(d) a person claiming through an offender

(e) any other person who has a special interest in the outcome of an application for a forfeiture modification order.55

  1. 4.64 In its examination of the forfeiture rule, the Tasmania Law Reform Institute endorsed this approach and observed that, if the offender cannot or does not wish to apply for an order, an application can be made by someone who could inherit through the offender, or by the offender’s creditors.56
  2. 4.65 The Law Institute of Victoria supports the adoption of this definition of ‘interested person’ in any equivalent Victorian legislation.57 The Institute considers it to be suitably wide and
    to confer on the court the appropriate discretion ‘to consider a broad range of circumstances in which a person may have a special interest in making an application
    for an order to modify the ordinary operation of the rule’.
    58 The Institute also notes that a child of the offender who is also the grandchild of the deceased person could then apply for a forfeiture rule modification order in order to be able to inherit from their grandparent’s estate.
  3. 4.66 However, there would be no need for the Victorian Forfeiture Act to provide express rights for innocent beneficiaries and persons claiming through the offender to apply for a forfeiture rule modification order. The Commission makes several recommendations addressing the effect of the forfeiture rule on innocent third parties in Chapter 5. These reforms would allow persons claiming through the offender and the beneficiaries of a gift over in a will to inherit where, in effect, the rule may currently prevent them from doing so. It is therefore not necessary to define them as an ‘interested person’ in order to ensure their interests can be advanced. An innocent third party who can otherwise demonstrate to the court that they have an interest would still be able to apply for a forfeiture rule modification order on that basis.

 

  1. 4.67 Applications for a forfeiture rule modification order should not be viewed as an alternative avenue for making a claim for family provision or recovering a debt owed by the disentitled beneficiary by drawing on the deceased person’s estate. The purpose of forfeiture rule modification orders should be confined to addressing injustice caused to individual offenders by the application of the forfeiture rule.

Recommendations

9 Where a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, and the unlawful killing does not constitute murder, that person, or another ‘interested person’, should be able to apply for a forfeiture rule modification order.

10 An ‘interested person’ should mean:

(a) the ‘offender’ (a person who has unlawfully killed another person) or a person applying on the offender’s behalf

(b) the executor or administrator of a deceased person’s estate, or

(c) any other person who in the opinion of the Court has an interest in
the matter.

 

Effect of forfeiture rule modification orders

  1. 4.68 The proposed Forfeiture Act should clarify the benefits that will be affected by a forfeiture rule modification order.
  2. 4.69 The ACT Act enables the court to modify the effect of the rule in respect of ‘any interest in property that the offender would have acquired but for the operation of the forfeiture rule’.59 ‘Property’ includes ‘any thing in action or incorporeal moveable property’.60
  3. 4.70 However, in New South Wales, an order modifying the effect of the rule may apply to anything that comes within the broader category of a ‘benefit’, which includes any interest in property and any entitlement under Chapter 3 of the Succession Act 2006 (NSW) (which concerns applications for family provision).61
  4. 4.71 At common law, the forfeiture rule affects all rights of the offender to property, entitlements and other benefits that may flow to the offender as a result of the death of the deceased person. As discussed in Chapter 5, this should include the right to make a claim for family provision under Part IV of the Administration and Probate Act 1958 (Vic).
  5. 4.72 Any forfeiture rule modification order needs to be able to be applied to all property, entitlements and other benefits to which the forfeiture rule applies and over which the court has jurisdiction, as in the NSW Act. Neither an offender’s appointment as executor of the deceased person’s estate, nor their eligibility to be appointed administrator, is a benefit. This issue is discussed in Chapter 5.

 

Recommendations

11 The property, entitlements and other benefits that may be affected by a forfeiture rule modification order should be specified in the Forfeiture Act
and include:

(a) gifts to the offender made by the will of the deceased person

(b) entitlements on intestacy

(c) eligibility to make an application for family provision under Part IV
of the Administration and Probate Act 1958 (Vic)

(d) any other benefit or interest in property that vests in the offender
as a result of the death of the deceased person.

12 On the making of a forfeiture rule modification order, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order.

 

Revocation and variation of forfeiture rule modification orders

  1. 4.73 There may be circumstances where the court will need to revoke or vary a forfeiture rule modification order. Section 8 of the NSW Act sets out the circumstances in which an order can be revoked or varied.62 These circumstances include when an offender is pardoned, when their conviction is quashed or set aside and there are no further avenues of appeal, or in all other circumstances in the interests of justice.
  2. 4.74 The Commission considers such a provision essential to allow for the court to consider new evidence that may exonerate an offender. A forfeiture rule modification order previously made by the court may enable the applicant to obtain only some, but not all, of their entitlements. Such an order would therefore need to be revoked to enable an exonerated person to make a claim on the rest of the property to which they may be entitled.

Recommendations

13 On application by an interested person, the Supreme Court should be empowered to revoke or vary a forfeiture rule modification order if the justice of the case requires it.

14 An interested person (as defined in Recommendation 10) should be able to apply for revocation or variation of a forfeiture rule modification order if:

(a) the offender is pardoned

(b) the offender’s conviction is quashed or set aside and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or

(c) in all other cases—if the Court considers it just in all the circumstances
to give leave for such an application to be made.

 

 

Recommendation

15 If a forfeiture rule modification order is revoked or varied, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was revoked or varied):

(a) in the case of a revocation—subject to the terms on which the Court revokes the order, and

(b) in the case of a variation—subject to modifications made by the
varied order.

 

 

Time limits for application

  1. 4.75 The proposed Forfeiture Act should specify a time limit within which an application for a forfeiture rule modification order can be made. This will provide certainty to the offender, the executor or administrator of the estate and other beneficiaries.
  2. 4.76 In the United Kingdom and the Australian Capital Territory, proceedings to modify the effect of the rule for a person convicted of an unlawful killing (or of aiding, abetting, counselling or procuring the death of the victim) must be brought within three months
    of the conviction.63 In New South Wales, the application must be made within 12 months of the date on which the forfeiture rule takes effect and the court may give leave for a late application.64

Suggested time limits

  1. 4.77 The Law Institute of Victoria suggested that there be a 12-month limit, as in New South Wales.65 The Institute also considers it important to provide for the court to be able to extend the time limit or to grant leave for a late application:

It is foreseeable that there will be circumstances where parties may not become immediately aware of a death, for example, in missing persons cases or where a body is found long after a disappearance or where the cause of death may change some time later, for example, as the result of a cold case finding. It would be appropriate for the court to have discretion to extend the time limit on making an application in these circumstances so as not to disadvantage any interested person entitled to apply for the rule to be modified.66

  1. 4.78 The Law Institute of Victoria added that an application for an extension of time should not be able to be made after the estate has been distributed.67 This is in line with the approach taken for applications for family provision under Part IV of the Administration and Probate Act.68 The Institute observed that, in practice, the court would be unlikely to grant an extension in such circumstances.69

 

  1. 4.79 State Trustees, the Property and Probate Section of the Commercial Bar Association and The Institute of Legal Executives (Victoria) suggested that the time limit for bringing an application for a forfeiture rule modification order should be the same as for a Part IV application,70 which is currently within six months of the grant of representation.71 However, criminal proceedings will generally extend beyond six months, so more time will be needed if the offender is being prosecuted.

Proposed reforms

  1. 4.80 The Commission agrees that the time limit for an application for a forfeiture rule modification order should be as consistent as possible with applications under Part IV of the Administration and Probate Act. However, to accommodate the length of criminal proceedings, the court should be able to grant leave to make a late application and the time limit for making an application should have greater flexibility. To achieve the flexibility required, the Commission suggests the adoption of a provision similar to that in the NSW Act but with a time limit of six months (rather than 12) for consistency with Part IV of the Administration and Probate Act.

Recommendations

16 The Forfeiture Act should provide that, unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture rule modification order must be made by the later of:

(a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned—within six months from the date of the death of the deceased person

(b) if the forfeiture rule subsequently prevents the offender from obtaining a benefit—within six months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit concerned

(c) six months after grant of probate of the will of the deceased person or letters of administration of the deceased person’s estate

(d) six months after all charges of unlawful killing laid against any beneficiary have been dealt with.

17 The Supreme Court should be permitted to give leave for a late application for a forfeiture rule modification order if:

(a) the offender concerned is pardoned by the Governor after the expiration of the relevant period

(b) the offender’s conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction

(c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or

(d) the Court considers it just in all the circumstances to give leave.

 

Evidentiary effect of conviction

Current law

  1. 4.81 The benefit of establishing a statutory nexus between a conviction for an indictable offence under the Crimes Act 1958 (Vic) and the application of the forfeiture rule would be enhanced by strengthening the connection in civil proceedings.
  2. 4.82 Currently, a person found guilty of unlawfully killing the deceased person may be able to challenge the correctness of the conviction in subsequent civil proceedings regarding the forfeiture rule.
  3. 4.83 Evidence of the conviction is generally admissible72 and may be given by a certificate signed by a judicial officer or other authorised officer of the court concerned.73 However, this evidence can only prove that the person was convicted of the offence. It does not prove the facts on which the conviction was based. Section 91(1) of the Evidence Act 2008 (Vic) provides that:

Evidence of the decision or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

  1. 4.84 In Gonzales v Claridades,74 Justice Campbell examined how equivalent provisions in the Evidence Act 1995 (NSW) can affect civil proceedings regarding the application of the forfeiture rule. Sef Gonzales had been charged with the murder of his sister and both of his parents. His father had died last and all of his mother’s assets had passed to his father’s estate. Mr Gonzales sought an order that the executor pay him sufficient money from his father’s estate to finance his defence of the criminal charges.
  2. 4.85 Justice Campbell traced the history of changes to the admissibility and significance, in civil proceedings, of a conviction for an offence involving unlawful killing. He then observed that:

If the outcome of Sef’s trial were to be a conviction, that conviction would be admissible in any civil proceedings to which he was a party in which there was an issue about whether he had forfeited the benefit under his father’s estate. However anyone who was contending, in such proceedings, that a forfeiture had occurred would still bear the legal onus of so proving, and it would be open to Sef to call evidence, if he wished, with a view to showing that any such conviction was erroneous.

It follows that, whether the outcome of Sef’s trial is a conviction or an acquittal, that outcome will not be determinative of any civil proceedings to which he is a party in which there is an issue about whether Sef’s benefit under his father’s will has been forfeited.75

  1. 4.86 In practice, the case is rarely retried entirely for the purpose of determining whether the forfeiture rule applies, although there was a complete rerun of the criminal trial in Troja v Troja76 where evidence was adduced by the police and experts.77 A complete rerun of a trial can be very expensive for parties to the case and potentially to the estate.

Proposed reform

  1. 4.87 By clarifying the scope of the forfeiture rule, the proposed Forfeiture Act will reduce the need for litigation to determine whether the rule applies to a person who has been convicted of the unlawful killing. However, it will not remove it. An offender who has been convicted of an offence in another Australian state or territory that does not directly align with a relevant indictable offence under the Crimes Act could seek an order from the court to determine whether the forfeiture rule applies. In addition, it will be possible for a person who has been convicted to apply to the court for a forfeiture rule modification order.
  2. 4.88 Proceedings to determine the application or effect of the forfeiture rule with respect to a convicted offender should not provide an avenue to reopen the question of whether they committed the offence at all. It would lengthen the proceedings, causing further costs and delays in distributing the deceased person’s estate, and would increase the emotional toll on the innocent members of the deceased person’s family.
  3. 4.89 In proceedings under the Succession (Homicide) Act 2007 (NZ) (‘the NZ Act’), an offender’s conviction is conclusive proof that they are guilty of the unlawful killing:

14 Evidential effect of conviction in New Zealand

(1) The conviction in New Zealand of a person for the homicide of another person or a child that has not become a person is conclusive evidence for the purposes of this Act that the person is guilty of that homicide, unless that conviction has been quashed.

  1. 4.90 The Commission considers that the Victorian Forfeiture Act should contain a provision to the same effect. Precluding the offender from putting the question of their guilt to the court in its civil jurisdiction would not be an injustice because their guilt has already been established to the criminal standard of proof beyond reasonable doubt. Logically, it follows that they would be found guilty on the lower civil standard of balance of probabilities.

Recommendation

18 The Forfeiture Act should provide that a conviction in Victoria or another Australian state or territory is conclusive evidence that an offender is responsible for the unlawful killing.

 

Other procedural matters

Definitions

  1. 4.91 Although the choice of terminology is a matter for Parliamentary Counsel, there is merit in adopting terms and definitions used in the ACT and NSW Acts. Any arbitrary distinctions could take on an unintended significance and create real or apparent complexity.

 

  1. 4.92 Key terms that are likely to appear in the Victorian legislation, and the Commission’s preferred definitions, are set out below.

• Forfeiture Rule

The ACT and NSW Acts define the rule in terms that are almost identical and are taken from the UK Act.78 The Commission can see no advantage in departing from the established definitions. The definition in the NSW Act is:

the unwritten rule of public policy that in certain circumstances preludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing.79

• Unlawful killing

The definition of unlawful killing in the Victorian Forfeiture Act will not be the same as in the ACT and NSW Acts, as those Acts do not exclude any offences from the application of the forfeiture rule. However, both include within their definitions aiding, abetting, counselling or procuring a homicide to which the rule applies.

The Commission considers that the definition in the Victorian Forfeiture Act should:

- refer to the offences specified in Recommendation 3

- exclude those set out in Recommendation 4

- encompass aiding, abetting, counselling or procuring an offence to which the rule applies.

Deceased person

While the ACT Act avoids directly referring to the person who has been unlawfully killed, the NSW Act refers to that person as ‘the deceased person’ and the NZ Act refers to ‘the victim’.

The Commission considers that there is no compelling reason not to adopt the terminology of the NSW Act. The deceased person is certainly a victim, but there
can be multiple victims of a crime and the focus of the legislation is on succession
on death.

Property

Property is not defined in the NSW Act. The definition in the ACT Act simply states:

Property includes any thing in action or incorporeal moveable property.80

The definition used in the Victorian legislation should similarly encompass real and personal property, and tangible and intangible property, to ensure that the net is cast wide enough to encompass the different assets that may be forfeited under the rule. The Commission prefers the definition used in the NZ Act because it is expressed more simply:

Everything that is capable of being owned, whether it is real or personal property, and whether it is tangible or intangible property, and includes any estate or interest in property.81

 

Will

The ACT and NZ Acts specify that a reference to a will includes a codicil.82 The distinction between a will and a codicil would be of no significance to the interpretation or application of the Victorian Forfeiture Act. For the avoidance of doubt, it would be prudent to include in the new legislation a statement that a will includes a codicil.

Application of the Act

  1. 4.93 The Commission has recommended that the scope of the forfeiture rule should encompass unlawful killings in Victoria or elsewhere that would be murder or another indictable offence under the Crimes Act, unless excepted by Recommendation 4.83 The scope of the Act will need to be commensurate.
  2. 4.94 The property affected by the operation of the Act will need to be specified as well, and be confined to the reach of the jurisdiction of the courts of Victoria.
  3. 4.95 The Commission expects that the provision in the Victorian Forfeiture Act could be based on section 4(1) of the NSW Act:

4 Application of Act

(1) This Act applies to the following:

(a) an unlawful killing whether occurring inside or outside the State

(b) property:

(i) located within the State, or

(ii) located outside the State, but only to the extent to which courts of the State have jurisdiction to make orders concerning the property.

Transitional provisions

  1. 4.96 The transitional provisions in the proposed Forfeiture Act will need to specify:

the unlawful killings to which the Act will apply, with regard to determining when a person who has committed an offence that falls within the defined scope of the rule is subject to the Act and may apply for a forfeiture rule modification order, and

the property regarding which a forfeiture rule modification order may be made.

  1. 4.97 Relevant provisions on which the Victorian provision could be based include section 9 of the NSW Act and section 5(2) of the NZ Act.

NSW Act

9 Transitional provisions

(1) A forfeiture modification order may be made in respect of:

(a) an unlawful killing occurring before or after the commencement of this Act, or

(b) the application of the forfeiture rule in proceedings commenced but not determined before the commencement of this Act.

(2) A forfeiture modification order is not to be made modifying the effect of the forfeiture rule in respect of any interest in property that, in consequence of the rule, has been acquired before the commencement of this Act by a person other than the offender or a person claiming through the offender.

 

(3) However, nothing in this Act affects any determination of a court concerning the application of the forfeiture rule in any proceedings that was made before the commencementof thisAct.

NZ Act

5 Effect and application

(1) …

(2) This Act applies to interests in and claims against property resulting from the death of a victim after the commencement of this Act but does not affect—

(a) any interest in or claim against property that is the subject of a proceeding commenced before the commencement of this Act, whether or not judgment has been delivered in that proceeding or an appeal against judgment was commenced before that time; or

(b) any interest in property a person (other than a killer) acquired for value; or

(c) the entitlement of any person under a contract.

(3) Subsection (2) overrides subsection (1).

  1. 4.98 The Commission prefers the adoption of a provision equivalent to that in the NSW Act in the interests of consistency between Australian jurisdictions.

Recommendation

19 The transitional provisions should be based on section 9 of the Forfeiture Act 1995 (NSW).

 

Effect on probate proceedings

  1. 4.99 The Commission acknowledges that the introduction of a Forfeiture Act affords an opportunity to set out procedures for personal representatives and others with an interest in the deceased person’s estate to apply to the court to determine whether the forfeiture rule applies to a person who has not been convicted for the unlawful killing.
  2. 4.100 In its report on the forfeiture rule,84 the Tasmania Law Reform Institute recommended that its proposed Forfeiture Act expressly provide for a beneficiary to apply to the court for an order as to whether the forfeiture rule applies. The Institute recommended that the application be made within three months of either the grant of representation being made, or all charges against any beneficiary being finally dealt with, whichever is the later.85
  3. 4.101 There is currently no specific procedure for applying to the court in Victoria to determine whether the forfeiture rule applies. While the idea of setting out a path in the new Forfeiture Act appears sensible for completeness and ease of reference, the Commission has concluded that it would ultimately not serve a useful purpose in practice.

 

  1. 4.102 The Administration and Probate Act 1958 (Vic) and statutory procedural rules of the court86 provide various pathways by which the court may be asked to determine questions relating to the administration and distribution of the deceased person’s estate, including questions about whether the forfeiture rule disentitles a beneficiary from receiving a benefit under a will or on intestacy. The Commission is not aware of any concern that there are insufficient options available.
  2. 4.103 Further, any new procedural rules would rarely be used, as the introduction of the proposed Forfeiture Act should decrease the need for the court to determine whether the rule applies. Even now, the Probate Office rarely comes across the forfeiture rule in granting representation87 and most cases concerning the rule are settled before being brought before a judge.88
  3. 4.104 The new Forfeiture Act is not intended to replace existing procedures of the court in determining whether the rule applies, and nor should it duplicate them.
  4. 4.105 For these reasons, the proposed Forfeiture Act should not disturb current arrangements by which an application may be made to the Supreme Court for a declaration of whether the forfeiture rule applies to a person who has not been convicted of an unlawful killing.

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