Riddles, Laws and Enigmas: The Common Law Forfeiture Rule notes
The venerable common law forfeiture rule prevents an unlawful killer from receiving any profit or benefit as a result of their crime. The rule stems from a longstanding and powerful maxim of public policy — that no person should benefit from his or her wrongdoing. The premise of the rule remains sound, but its scope and operation are uncertain and problematic in various respects. The famed words of Winston Churchill have recently been used to characterise the current extent and application of the common law forfeiture rule in unlawful homicide as ‘a riddle wrapped in a mystery inside an enigma’.
The rule dates back to Jewish and Roman law and various medieval English doctrines that were only formally abolished in 1870. The rule in its current modern form was first stated in the 1892 decision of the English Court of Appeal in Cleaver v Mutual Reserve Fund Life Association where a wife (the famous Florence Maybrick who had been convicted of the murder of her husband by poison) was held ineligible to claim the proceeds of her husband’s life insurance policy. Lord Esher MR stated that ‘the rule of public policy in such a case prevents the person guilty of the death of the insured, or any person claiming through such person, from taking the money’. Fry LJ agreed:‘It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.’
In the famous Crippen case, Evans P observed:
It is clear law that no person can obtain or enforce any rights resulting to him from his own crime, neither can his representative claiming under him obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.
The forfeiture rule was extended in 1914 to both murder and manslaughter in Re Hall, notably in the observations of Hamilton LJ. This principle was approved and the forfeiture rule effectively endorsed by the joint judgment of the High Court of Australia in Helton v Allen of Dixon, Evatt and McTiernan JJ (though the status and effect of this decision is still debated and unresolved).
The forfeiture rule has apparent absolute operation in South Australia to any example of murder and manslaughter. South Australia has followed the majority approach of the NSW Court of Appeal in Troja v Troja (though note Kirby P’s dissent) and there is no discretion to modify the operation of the rule. The rule has been held to apply to other forms of unlawful homicide such as assisting suicide and the survivor of a suicide pact.
The forfeiture rule has no statutory force, a fact that attracted some surprise in SALRI’s consultation.
The rule nevertheless 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 even a statutory pension. The killer is also barred from making a claim under family provision laws.
SALRI considers that the rationale of the forfeiture rule remains applicable and accords with public policy, as an unlawful killer should be generally unable to profit or benefit from his or her crime. However, the scope and operation of the rule are contentious and uncertain. In particular, the application of the forfeiture rule to unlawful killings in various situations where a lesser degree of culpability is widely 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, euthanasia or a ‘mercy killing’, where the offender has a 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 foundations. The automatic and inflexible application of the rule is at odds with changes in community attitudes, which is ‘reflected in the greater range of offences and sentence options today compared to when the rule was first articulated.’ The rule may produce particularly unfair consequences in the context of family or domestic violence, where the typically (though not inevitably) female victim of such violence kills an abusive spouse and is convicted of manslaughter. The problematic operation of the rule in an assisted suicide context has arisen recently in the UK (and with ‘mercy killing’ proved a major theme in SALRI’s consultation).
SALRI also notes that, on close scrutiny, the modern forfeiture rule rests on an insecure historical foundation, notably in its present form as applying to murder and all forms of manslaughter. Cleaver was decided against the backdrop of the relatively recent abolition of the feudal doctrines relating to forfeiture in 1870. Both Cleaver and Hall are also arguably explicable by their particular facts and should not be understood as necessarily applying to murder and all forms of manslaughter. It is important to appreciate the historical context to Cleaver and Hall, the precise reasoning of all the judges (not just Fry LJ and Hamilton LJ) and the extraordinary, if not sensational, facts of both cases.
The technical application of the modern forfeiture rule in various property, succession and inheritance situations is also unclear and problematic. The focus of past law reform references and academic commentary has tended to be on the scope of the forfeiture rule and what categories of unlawful homicide, if any, should be excluded from the operation of the rule and the role and operation of any judicial discretion to modify the operation of the rule. The practical implications and consequences of the potential operation of the forfeiture rule arise in a wide variety of succession situations such as when the victim dies with a will or intestate, holds property as a joint tenant, holds trust assets, holds life insurance, is a member of a superannuation fund or is in receipt of other benefits. The practical implications and consequences that arise from the potential operation of the rule are significant but have been often overlooked. In particular, in various property, succession and inheritance situations the present rule may result in the ‘sins of the unlawful killer been visited upon their blameless children’.
SALRI’s Recommendations
Although the underlying policy or rationale of the rule remains sound, SALRI is of the view that the rule requires reform for two reasons: clarity and fairness.
SALRI has made a total of 67 recommendations relating largely to the scope, operation and effect of the forfeiture rule. SALRI acknowledges that there is a strong public policy to prevent an unlawful killer from profiting from their crime. SALRI considers that, whilst the underlying premise of the forfeiture rule should be retained, the rule in its present form is inflexible, potentially unfair, unclear and uncertain in scope and operation and is in need of legislative reform. It is preferable for Parliament to clarify and reform the forfeiture rule, rather than relying on judicial reformulation of the rule.
SALRI recommends that South Australia should introduce a standalone Forfeiture Act for clarity and certainty as the preferred vehicle for reform. England, New South Wales and the ACT have introduced Forfeiture Acts to modify the operation of the forfeiture rule. SALRI is of the view that the forfeiture rule should apply in South Australia to murder, all forms of manslaughter, assisting suicide, causing the death of a child or vulnerable adult by criminal neglect under s 14 of the CLCA and the offence of causing death by culpable or dangerous driving. These are all offences of unlawful homicide within the CLCA. The forfeiture rule should also apply to aiding or abetting any of these offences under s 267 of the CLCA. Any other offences of unlawful homicide such as causing death by careless driving or under work health safety laws outside the CLCA should fall outside the forfeiture rule.
SALRI notes ‘manslaughter is a crime which varies infinitely in its seriousness’ which may range from ‘mere inadvertence’ to just short of murder. SALRI considers that it is impracticable and inappropriate to distinguish between the different categories of manslaughter as to the application of the forfeiture rule and it should apply to both voluntary manslaughter (where murder is reduced to manslaughter for whatever reason) and involuntary manslaughter (manslaughter by an unlawful and dangerous act or manslaughter by gross negligence) as well as the survivor of a suicide pact (see s 13A(3) of the CLCA).
The question of whether the forfeiture rule should apply to the offence of causing death by culpable or dangerous driving was a prominent theme in SALRI’s consultation. There was strong support for the application of the rule in such cases, reflecting the gravity with which causing death by culpable or dangerous driving is now widely regarded. The Victorian Law Reform Commission recommended that the forfeiture rule should apply to causing death by culpable but not dangerous driving.
SALRI considers it is illogical to treat death by culpable or dangerous driving differently from manslaughter by gross negligence. Mr Boucaut QC and others highlighted to SALRI in consultation the gravity of many examples of causing death by culpable or dangerous driving and that it is very rare for manslaughter to be charged in such circumstances. It is also relevant that culpable and dangerous driving causing death in South Australia are a single combined offence and not separate offences as elsewhere in Australia such as Victoria.
SALRI accepts that there will be certain unlawful killings, even murder, where it will be unduly harsh to apply the forfeiture rule. SALRI has therefore recommended that any Forfeiture Act should provide a court with the discretion to modify the rule’s application where a court finds that it is in the interests of justice to do so and crucially there are ‘exceptional circumstances’. The concept of exceptional circumstances is a familiar statutory and judicial expression. It is a phrase that is impossible to exhaustively define. The possible exercise of this discretion should arise in cases of murder, manslaughter and the other offences of unlawful homicide within the CLCA. SALRI endorses the powerful public policy reasons to prevent an unlawful killer from profiting from their crime, which is why a court would need to be satisfied that there are ‘exceptional circumstances’ to modify the rule.
In the case of murder, the application of the forfeiture rule is said to be ‘clear and uncontroversial’. The UK, NSW and ACT Forfeiture Acts retain the rule in its absolute form for murder and allow no judicial discretion to modify the rule. However, a cogent (though far from universal) view to emerge in SALRI’s consultation was that, even for murder, there may be very rare circumstances where it would be unfair and harsh to apply the forfeiture rule. The example was given of where a spouse kills their terminally ill spouse at their request to relieve them of severe suffering. Another example given was where a victim of prolonged family violence kills their abusive spouse but no partial defence such as excessive self-defence arises and the killer is convicted of murder.
SALRI accepts that murder has a unique gravity and culpability but there may be ‘exceptional circumstances’ in which it is appropriate for a court to modify the operation of the rule. It is likely that any such case will be very rare.
SALRI notes the uncertainty of the present law and that, even post Troja,it is ‘unsettled’ what offences or situations fall within the forfeiture rule or not. For example, it is unclear whether manslaughter by gross negligence or causing death by culpable or dangerous driving or even aiding and abetting murder (at least after the event) fall within the rule or not. This is unsatisfactory. SALRI considers it is preferable for clarity and certainty that any Forfeiture Act clearly details those offences to which the forfeiture rule applies (namely those within the CLCA) and those which it does not (namely those outside the CLCA). However, SALRI is of the view that the forfeiture rule should not be absolute. SALRI has concluded that a court should be able to modify the application of the forfeiture rule for an offence involving unlawful killing within the CLCA in limited situations if a court is satisfied that it is in the interests of justice to do so and there are ‘exceptional circumstances’.
The overall rationale for SALRI’s suggested reforms is to allow for consideration of individual circumstances in an appropriate instance of reduced culpability, while ensuring that the strong underlying principle that an unlawful killer should not profit or benefit from their crime is not unduly diminished or eroded.
The common law forfeiture rule presently does not apply to an individual found not guilty of homicide by reason of mental impairment (previously termed insanity). The NSW Forfeiture Act allows a court the discretion to apply the rule where a person is found not guilty of murder on the basis of mental impairment. This proved a difficult and finely balanced issue in SALRI’s consultation. SALRI acknowledges the legitimate concerns in the community raised to it over the prevalence of drug induced psychosis in relation to serious crimes of violence and the potential successful use of the mental impairment defence by persons whose mental impairment has been caused, or at least contributed to, by the use of illicit drugs or alcohol.
However, the solution to such concerns lies with the scope of the defence of mental impairment (as pointed out to SALRI by Professor Prue Vines) and not the role and scope of the forfeiture rule.
The various issues relevant to the application of the forfeiture rule to persons found not guilty by reason of mental impairment were discussed by the VLRC. In particular, the VLRC recognised that the exception for those found not guilty by reason of insanity or mental impairment applies only to a very specific class of killers. These individuals must be able to establish that, at the time of the offence, 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 did not know that the act was wrong. It is onerous for a person to establish that they were labouring under such a defect, and a finding of not guilty by reason of mental impairment is not treated lightly by either the DPP or the courts. The VLRC was of 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’. The VLRC emphasised that extending the forfeiture rule to an individual found not guilty of murder on the basis of mental impairment undermines the ‘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’.
SALRI does not support the NSW provision and is of the view that the existing exception to the operation of the forfeiture rule for persons found not guilty by reason of mental impairment should be retained. SALRI on this issue agrees with the reasoning of the VLRC.
Under SALRI’s recommendations, a person who has been precluded by the forfeiture rule from obtaining a benefit, or another ‘interested person’, should be able to apply for a forfeiture modification order. SALRI’s preferred position is that modification of the forfeiture rule should be available by the exercise of judicial discretion. Whilst SALRI accepts that the introduction of a judicial discretion to modify the rule will result in uncertainty in some cases, it will nonetheless mean that justice can be achieved in all cases, by providing courts the power and crucial flexibility to deal with each case on its individual merits rather than by the application of a blanket or rigid rule. In order to address the uncertainty that may arise in the exercise of judicial discretion in some cases, SALRI recommends that any proposed Forfeiture Act should contain a list of statutory considerations for a court to have regard to and the primary factor should be the culpability of the unlawful killer. SALRI’s view is that, whilst the codified approach under the New Zealand Forfeiture Act, which excludes some categories or situations of unlawful killing from the operation of the forfeiture rule, might reduce the number of instances in which the application of the forfeiture rule is unjust, it is too inflexible to do so in all cases. For example, for victims of family violence who kill, a codified approach may cause injustice, either by continuing to apply the rule rigidly where modification is justified, or by excluding all such killings, including cases where it is appropriate that the rule apply. The judicial discretionary approach is a preferable model to flexibly respond to cases of family violence victims who kill an abusive domestic partner in response to ongoing family violence. This approach most effectively allows a court to consider the context and circumstances of the conduct in each case and recognise where the level of culpability of the killer is reduced. Further, SALRI is of the view that it would impractical, if not impossible, to seek to formulate codified legislation in relation to the forfeiture rule that could cover the infinite variety of cases that will arise.
There was considerable discussion in SALRI’s consultation about the need for urgent orders to be made in cases where the killer controls the deceased’s estate and could dissipate it before a preserving order or injunction is granted. This was seen as a real practical omission under the current law. SALRI has made a number of recommendations aimed at protecting the assets of the deceased from dissipation until proceedings have been finalised. These recommendations include giving a court the power to make whatever interim or incidental orders are necessary from time to time to preserve the deceased’s property, expressly providing the Attorney-General with standing to apply for preserving orders in a suitable case, the formulation of a protocol for the disclosure of information to the Attorney-General by other government agencies with a relevant interest or role in the case and the introduction of a statutory caveat which can be served by any person claiming an interest in property which would prevent the accused person being able to seize the assets of the deceased person.
In terms of the effects of the rule, SALRI has recommended that the proposed Forfeiture Act codify the effect of the forfeiture rule on the killer and on the succession rights of third parties. SALRI considers that this is required to provide greater clarity and certainty about the effects of the rule on the killer and other parties, as the current law in respect to the effects of the forfeiture rule lacks clarity. Some of SALRI’s main recommendations regarding the effect of the forfeiture rule include clarifying that, in cases where there are reasonable grounds to suspect a person has unlawfully killed the deceased, they shall be disqualified from acting as a personal representative of that deceased person’s estate.
SALRI has also made recommendations as to the process that the personal representative must follow before they distribute the estate of the deceased person in accordance with the forfeiture rule. It is further recommended that where a deceased victim dies with a will or intestate and a share of their estate is to pass to a person who is precluded by the forfeiture rule from acquiring it, the killer is deemed to have predeceased the victim. This reform was considered particularly important, as it means that the killer’s actions have no impact on the benefits under a will or on intestacy passing to the descendants of the killer. As a result, this reform prevents the unsatisfactory situation of the sins of the unlawful killer being visited upon their blameless children.
SALRI has also made specific recommendations about the forfeiture rule in the context of the Family Provision Act 1972 (SA), property interests including property held as joint tenants between the victim and the killer and third parties, trust assets, life insurance proceeds, superannuation death benefits and social security benefits and other public benefits. SALRI is of the view that its recommendations, including placing the forfeiture rule on a clear statutory basis, will clarify and improve the role and operation of the present law by retaining the underlying rationale of the rule that an unlawful killer should not profit from their crime, but providing a limited degree of flexibility to modify its effect in an appropriate case where there are ‘exceptional circumstances’ and further resolve at least some of the practical issues and implications that presently arise. In short, it will help unravel ‘the riddle wrapped in a mystery inside an enigma’.
