The forfeiture rule is a common law rule of public policy. It is an expression of the fundamental principle that crime should not pay, and it conveys the community’s strongest disapproval of the act of homicide. The rule disentitles an offender from benefits that, in normal circumstances, they would have received on the deceased person’s death. It is not a punishment but it is a significant consequence that, in most cases, should not be disturbed.
At common law, the rule is hard and fast. If the rule applies, it applies without regard to the features of the particular homicide. While it rightly applies without exception to the offence of murder, the inflexible application of the rule in every other homicide is out of step with developments in the criminal law. Unlawful killings continue to attract the most severe penalties, but a range of substantive offences and sentencing options has emerged in recognition of the breadth of circumstances in which a death can occur.
In Australia as well as overseas, concern has been expressed about the harsh effects that the forfeiture rule can have. A driver of a car who causes an accident that kills their partner because of a momentary lapse in concentration is unable to receive anything the partner left them by will.
A person who, as part of a suicide pact, assists a terminally ill loved one to commit suicide and then fails in their own suicide attempt, loses the right to the deceased person’s interest in the house they bought together. An innocent child of an offender is unlikely to inherit the property that the offender forfeited upon killing the child’s grandparents.
The response in some other jurisdictions has been to introduce legislation that either excludes particular homicides from the operation of the rule or gives the courts a discretion to modify the effect of the rule on a case-by-case basis.
The Commission has concluded that Victoria needs a Forfeiture Act that does both. It has reached this conclusion after consulting with members of the public, community organisations, legal practitioners, judges, academics, and organisations with valuable experience in administering estates. I thank those who contributed for their time and insights.
I would also like to thank my fellow Commissioners who worked on this reference.
Dr Ian Hardingham QC and Bruce Gardner PSM—who were particularly generous in giving their time to the roundtable discussions and other consultations—His Honour David Jones AM, Eamonn Moran PSM QC, Alison O’Brien and the Hon. Frank Vincent AO QC constituted the reference Division which I chaired. They brought to the reference a wide range of perspectives and rich knowledge of the law.
Finally, I acknowledge and thank the research team, Lindy Smith and Megan Taylor, for their hard work on the reference.
I commend the report to you.
The Hon. Philip Cummins AM
Chair, Victorian Law Reform Commission