LSB September 2021 LR

SUCCESSION LAW
Thou Shall Not Kill and Inherit: The
venerable common law forfeiture
rule and suggestions for reform
DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN LAW REFORM INSTITUTE,
DR SYLVIA VILLIOS, SENIOR LECTURER, ADELAIDE UNIVERSITY LAW SCHOOL
The Attorney-General, the Hon Vickie
Chapman, has recently foreshadowed
her intention to introduce a standalone
Forfeiture Act in South Australia to reform
the vexed common law forfeiture rule
in unlawful homicide in response to the
major 2020 Report 1 of the independent
South Australian Law Reform Institute
(SALRI) based at the Adelaide University
Law School. The forfeiture rule stems from
a longstanding premise of public policy
— that no person should benefit from his
or her wrongdoing. As Evans P observed
in the famous case of Crippen: ‘It is clear
law that no person can obtain or enforce
any rights resulting to him from his own
crime…The human mind revolts at the
very idea that any other doctrine could be
possible in our system of jurisprudence.’ 2
SALRI concluded that, whilst the premise
of the rule remains sound, its scope and
operation are uncertain and problematic
in various respects and the rule is in need
of statutory clarity and reform. The famed
words of Winston Churchill have 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’. 3
The forfeiture rule dates back to
Jewish and Roman law and various
medieval English doctrines that were only
formally abolished in 1870. 4 However,
the modern rule can be traced to the
celebrated English case of Florence
Maybrick 5 in the late 1800s. Mrs Maybrick
was an American woman convicted of
the murder of her older husband, James
Maybrick, through the administration
of poison. This controversial 6 case was
to become the modern source of the
common law forfeiture rule. The Court
of Queen’s Bench held that Mrs Maybrick
was precluded by public policy from
receiving any benefit arising from her
husband’s untimely death. 7 Lord Esher
36 THE BULLETIN September 2021
held that it is contrary to public policy for
a person who commits murder to benefit
from their crime. Fry LJ elaborated that
as a principle of public policy ‘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.’ 8
The forfeiture rule was extended in
1914 to both murder and manslaughter
in Re Hall. 9 This principle was approved
and the forfeiture rule effectively endorsed
by the joint judgment of the High Court
of Australia in Helton v Allen 10 of Dixon,
Evatt and McTiernan JJ (though the status
and effect of this decision is still debated
and unresolved). 11
The forfeiture rule has no statutory
force, 12 but 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
arises regardless of the degree of moral
culpability or the punishment imposed by
the criminal court. 13 It also arises regardless
of any hardship to the killer. 14 It has been
held to preclude a killer from acquiring
a benefit via a will 15 or distribution on
intestacy, 16 other benefits such as insurance
policies 17 or even a statutory pension. 18 The
killer is also barred from making a claim
under family provision laws. 19 Where the
killer and deceased held property as joint
tenants, the rule will prevent the killer from
acquiring the deceased’s interest, either by
severing the joint tenancy, 20 or through a
constructive trust. 21
The rule has application to murder, 22
manslaughter, 23 manslaughter by unlawful
and dangerous act, 24 manslaughter on
the basis of provocation 25 or diminished
responsibility 26 (even in the context of
a victim of family violence), 27 defensive
homicide or manslaughter on the basis of
excessive self-defence, 28 manslaughter by
gross negligence 29 (including the use of a
motor vehicle), 30 assisted suicide 31 and the
subject of a failed suicide pact. 32
The forfeiture rule has apparent
absolute operation in South Australia
to any example of murder and
manslaughter. 33 South Australia has
followed the majority approach of the
NSW Court of Appeal in Troja v Troja 34
(though note Kirby P’s spirited dissent)
and there is no discretion to modify the
operation of the rule, notwithstanding the
harshness or unfairness that might result. 35
However, even post Troja, it is
‘unsettled’ 36 what offences or situations of
unlawful homicide fall within the forfeiture
rule or not. The continuing confusion and
uncertainty of the scope of the forfeiture
rule, even post Troja, is illustrated by
the Victorian case of Edwards. 37 Jemma
Edwards had pleaded guilty to defensive
homicide on the basis of excessive selfdefence
in relation to the death of her
abusive husband after a prolonged mutual
history of family violence. All four judges
who heard her civil case acknowledged
that there were mitigating circumstances
(notably the context of family violence),
but Mrs Edwards’ deliberate use of
violence with lethal intent to cause death or
serious harm precluded any relaxation of
the modification rule in her case. However,
three very different views as to the scope
of the forfeiture rule were advanced and
what types of manslaughter it covered or
did not cover and whether there is any
discretion to modify the operation of the
rule. There was no consensus.
The forfeiture rule may also operate
unfairly because of its apparent inflexible
or ‘too rigid’ 38 application to unlawful
killings which involve a lesser degree of
culpability. The rule’s strict application
may well produce unjust outcomes. For
example, the callous premeditated murder
of a close relative carried out to obtain a