21 April 2019

SA Forfeiture Review

The South Australian Law Reform Institute inquiry into forfeiture, currently underway, is described thus
The forfeiture rule was extended to both murder and manslaughter in Re: Hall [1914] P 1. This principle was approved and the forfeiture rule effectively endorsed by the joint judgment of the High Court of Australia in Helton v Allen (1940) 63 CLR 691, 709 (Dixon, Evatt and McTiernan JJ) (though the status and effect of this decision is still debated). 
The forfeiture rule has apparent absolute operation in South Australia (see Troja v Troja (1994) 33 NSWLR 269 (though note Kirby P’s dissent); Rivers v Rivers [2002] SASC 437; Re: Luxton [2006] SASC 371). The rule has been held to apply to any example of murder and manslaughter. The rule has drastic effect and provides that any person who has unlawfully caused the death of another is precluded from taking any benefit that arises as a result of the victim’s death. The rule has been held to preclude a killer from acquiring a benefit via a will, distribution on intestacy, the victim’s share in jointly owned property, other benefits such as insurance policies or a statutory pension. The killer is also barred from making a claim under family provision laws. 
The underlying rationale of the forfeiture rule is sound and accords with public policy, as a killer should be generally unable to benefit from his or her crime. However, the scope and operation of the rule are contentious and uncertain (see Re: Edwards [2014] VSC 392; Edwards v State Trustees Ltd [2016] VSCA 28). In particular, the application of the forfeiture rule to unlawful killings in various situations where a lesser degree of moral culpability is recognised has shown that strict application of the rule may lead to unfair outcomes. The rule may lead to potential unfair implications in such situations as the survivor of a suicide pact, assisted suicide, infanticide, manslaughter by gross negligence (as opposed to an act of violence), euthanasia or a ‘mercy killing’, where the offender has a relevant major cognitive impairment (also termed ‘diminished responsibility’) or especially in a context of domestic violence where a victim of domestic violence kills an abusive spouse and is convicted of manslaughter on the basis of excessive self-defence or provocation. The strict application of the rule in such circumstances has been described as ‘unnecessarily harsh, inconsistent and... irrational’ and ‘injudicious and incongruous’ with its public policy rationale. 
The problematic operation of the rule in an assisted suicide context has arisen recently in the UK; see the 2019 English case of In the Matter of Alexander Shedden Ninian (Deceased) and in the Matter of the Forfeiture Act 1982, . The technical application of the forfeiture rule in various property, succession and inheritance situations is also unclear and problematic. SALRI is keen to look at these aspects. In particular, in various property, succession and inheritance situations the rule may result in the ‘sins of the unlawful killer been visited upon their blameless children’. These are discussed by the English Law Commission in its 2005 Report: . 
The forfeiture rule presently does not apply to an individual found not guilty of homicide by reason of mental impairment (previously termed insanity). The Victorian Law Reform Commission opposed any such extension. Noting the NSW statutory model which allows a court to apply the rule where a person is found not guilty of murder on the basis of insanity, SALRI will examine whether the forfeiture rule should be capable of applying to an individual found either unfit to plead or especially not guilty by reason of mental impairment/insanity. The recent judgment of Lindsay J in Re: Settree Estates [2018] NSWSC 1413 provides a very helpful summary. 
Potential Models for Reform 
The forfeiture rule has been modified by statute in the UK, NSW, ACT, and New Zealand. The Victorian Law Reform Commission (VLRC) supported a hybrid model combining aspects of the UK/NSW and New Zealand models. The United Kingdom, ACT and New South Wales have laws that modify the rule and provide discretion to a court to modify the effect of the forfeiture rule. In both models, unlawful killing is broadly defined. The UK and NSW laws do not codify the rule, but rather allow a court to exempt an individual in an appropriate case of unlawful killing (though not amounting to murder) from its application. The UK and NSW models contain some limited guidance with regard to the circumstances in which a court should exercise the discretion, but it is not comprehensive. The New Zealand law fully codifies the forfeiture rule, displacing all related rules of common law, equity, and public policy. Specific forms of unlawful homicide are wholly excluded from the effect of the rule, such as infanticide, those arising out of negligence, or pursuant to a suicide pact. There is no judicial discretion to modify the rule in other categories. The New Zealand model states the assets to which an unlawful killer is disentitled. 
The Tasmanian Law Reform Institute in its report, recommended new laws based on the NSW model by providing a discretion to a court to modify the effect of the rule (but not for murder). It also supported including a greater level of guidance for a court to have regard to in deciding whether or not to exercise its discretion to avoid applying the forfeiture rule. The Tasmanian Law Reform Institute also favoured greater clarity with regard to the burden of proof and the disposal of disinherited assets. 
The Victorian Law Reform Commission (VLRC) in its 2014 report, supported a ‘hybrid’ legislative model. The VLRC proposal would define the scope and effect of the rule, with specific forms of homicide such as infanticide or dangerous driving totally excluded from the rule. However, the VLRC proposal would also provide a discretion to a court to more broadly modify the rule in an appropriate case, whilst setting out the factors for a court to have regard in deciding whether or not to exercise its discretion to avoid applying the rule. 
In its review, SALRI will draw on the academic, judicial and law reform work in this area to date, notably the 2004 Report of the Tasmanian Law Reform Institute, the 2005 Report of the English Law Commission, and especially the recent Report by the VLRC. SALRI is interested to hear any comments on the ACT/NSW/English or New Zealand models and their operation. 
This reference will allow SALRI to identify the problems with the forfeiture rule (both broad areas and its technical implications); look at other models; gather the views of the community, interested parties and experts and on the basis of its research and consultation suggest ways in which the law in South Australia can be best improved. SALRI is due to provide a Report with recommendations for the Government about any potential law reforms by the end of August 2019.