LSB September 2021 LR

SUCCESSION LAW
Endnotes
1 Sylvia Villios, David Plater, Olivia Jay, Terry
Evans and Emily Ireland, Riddles, Mysteries and
Enigmas: The Common Law Forfeiture Rule (South
Australian Law Reform Institute, 2020).
2 Re Estate of Crippen [1911] P 108.
3 Darryl Brown and Ruth Pollard, ‘Where From
and Where to With the Forfeiture Rule’ (2018)
148 Precedent 14.
4 See Re Tucker (1920) 21 SR (NSW) 175, 177–178;
Arie Freiberg and Richard Fox, ‘Fighting Crime
with Forfeiture: Lessons from History’ (2000)
6(1–2) Australian Journal of Legal History 1. See
further Sylvia Villios, David Plater, Olivia Jay,
Terry Evans and Emily Ireland, Riddles, Mysteries
and Enigmas: The Common Law Forfeiture Rule
(South Australian Law Reform Institute, 2020)
17-39. The contribution in this historical context
of Dr Emily Ireland was notable.
5 See Alexander MacDougall, The Facts of the
Case, and of the Proceedings in Connection with the
Charge, Trial, Conviction, and Present Imprisonment
of Florence Elizabeth Maybrick (Baillière, Tindall
and Cox, 1891); Helen Densmore, The Maybrick
Case: English Criminal Law (Sonnenschein, 1892);
HB Irving (ed), Trial of Mrs Maybrick (William
Hodge, 1912); Bernard Ryan, The Poisoned Life of
Mrs Maybrick (Excel Press, 1977); George Robb,
‘The English Dreyfus Case: Florence Maybrick
and the Sexual Double-Standard’ in George
Robb and Nancy Erber (eds), Disorder in Court
(Palgrave MacMillan, 1999) 57; Kate Colquhoun,
Did She Kill Him?: A Victorian Tale of Deception,
Adultery and Arsenic (Harry Abrams, 2014);
Richard Hutto, A Poisoned Life: Florence Maybrick,
The First American Woman to be Sentenced to Death in
England (Blackstone Publishing, 2018).
6 Mrs Maybrick’s conviction was highly
contentious. She seems to have been convicted
as much on moral grounds (an extra-marital
affair) as the strength of the prosecution case.
See Dinah Birch, ‘Did She Kill Him? Review:
A Victorian Scandal of Sex and Poisoning’, The
Guardian (online, 26 February 2014); Richard
Hutto, A Poisoned Life: Florence Maybrick, The First
American Woman to be Sentenced to Death in England
(Blackstone Publishing, 2018). Hutto even notes
that Florence’s husband is suspected (amongst
many others over the years) of being Jack the
Ripper.
7 Cleaver v Mutual Reserve Life Fund Association
[1892] 1 QB 147.
8 [1892] 1 QB 147, 156.
9 [1914] P 1.
10 (1940) 63 CLR 69.
11 State Trustees Ltd v Edwards [2014] VSC 392;
Edwards v State Trustees Limited (2016) 257 A Crim
R 529.
12 The forfeiture rule was designed to operate
independently of any statutory scheme for
the confiscation of the proceeds of crime to
the State and it operates independently of the
Criminal Assets Confiscation Act 2005 (SA). See
Rivers v Rivers (2002) 84 SASR 426.
13 Re Giles (dec’d) [1972] Ch 544; Troja v Troja (1994)
33 NSWLR 269, 283, 299.
14 State Trustees Ltd v Edwards [2014] VSC 392, [94].
15 Re Dellow’s Will Trusts [1964] 1 All ER 771.
16 Re Tucker (1920) 21 SR (NSW) 175; Re Estate of
Soukup (1997) 97 A Crim R 103; Rivers v Rivers
(2002) 84 SASR 426, [42]–[43].
17 Cleaver v Mutual Reserve Fund Life Association
[1892] 1 QB 147; Gray v Barr [1971] 2 QB 554.
18 R v Chief National Insurance Commissioner, Ex Parte
Connor [1981] QB 758.
38 THE BULLETIN September 2021
19 Re Royse (dec’d) [1985] Ch 22; Troja v Troja (1994)
35 NSWLR 182.
20 Re Barrowcliff [1927] SASR 147.
21 Re Thorp and Real Property Act (1961) 80 WN
(NSW) 61.
22 Re Crippen [1911] P 108; Re Rattle [2018] VSC
249.
23 Re Hall [1914] P 1; Re Stone [1989] 1 Qd R 351.
24 Gray v Barr [1971] 2 QB 554; Henderson v Wilcox
[2016] 4 WLR 14.
25 Mack v Lockwood [2009] EWHC 1524 (Ch).
26 Re Giles (dec’d) [1972] Ch 544; Jones v Roberts [1995]
2 FLR 422.
27 Troja v Troja (1994) 33 NSWLR 269; Re K (dec’d)
[1985] 3 WLR 234.
28 State Trustees Ltd v Edwards [2014] VSC 392.
29 Land v Land [2007] 1 WLR 1009; Nay v Iskov
[2012] NSWSC 598.
30 Nay v Iskov [2012] NSWSC 598.
31 Dunbar v Plant [1998] Ch 412, Public Trustee of
Queensland v Public Trustee of Queensland [2014]
QSC 47.
32 Dunbar v Plant [1998] Ch 412.
33 Rivers v Rivers (2002) 84 SASR 326; Re Luxton
(2006) 98 SASR 218.
34 (1994) 33 NSWLR 269.
35 See also Batey v Potts (2004) 61 NSWLR 274;
Permanent Trustee Co Ltd v Gillett (2004) 145 A
Crim R 220, 224; Pike v Pike [2015] QSC 134,
[22].
36 Re Rattle [2018] VSC 249, [42] (McMillan J).
37 State Trustees Ltd v Edwards [2014] VSC 392;
Edwards v State Trustees Limited (2016) 257 A Crim
R 529.
38 J Chadwick, ‘A Testator’s Bounty to His Slayer’
(1914) 30(2) Law Quarterly Review 211, 211.
39 Barbara Hamilton and Elizabeth Sheehy, ‘Thrice
Punished: Battered Women, Criminal Law and
Disinheritance’ (2004) 8 Southern Cross University
Law Review 96. See, for example, Troja v Troja
(1994) 33 NSWLR 269.
40 Nicola Peart, ‘Reforming the Forfeiture Rule:
Comparing New Zealand, England and Australia’
(2002) 31(1) Common Law World Review 1, 20.
2
41 Anthony Dillon, ‘When Beneficiary Slays
Benefactor: The Forfeiture “Rule” Should
Operates as a Principle of the General Law’
(1998) 6(3) Australian Property Law Journal 1.
42 Victorian Law Reform Commission, The Forfeiture
Rule (Report No 20, September 2014) ix.
43 Ibid.
44 State Government Insurance Commission v Trigwell
(1979) 142 CLR 617, 633–4 (Mason J). See also
at 628–9 (Stephen J).
45 England, New South Wales and the ACT have
introduced Forfeiture Acts to modify the operation
of the rule.
46 Victorian Law Reform Commission, The Forfeiture
Rule (Report No 20, September 2014) 22 [3.33].
The forfeiture rule should also apply to aiding
or abetting any of these offences under s 267 of
the CLCA.
47 See s 13A(3) of the CLCA.
48 Straede v Eastwood [2003] NSWSC 280.
49 Murder can encompass a single ‘mercy’ killing
(such as of as terminally ill spouse), or extremely
violent, cruel, pre-meditated, multiple and
contract killings. See Reyes v The Queen [2002]
2 AC 235, 241–2 [11]. There is also a large
spectrum of subjective blameworthiness and
culpability of the person or persons responsible
for the killing(s), which ranges from recklessness
and intentional motives of compassion to
intentional killings for financial gain or callous
and calculating offenders. See R v Howe [1987]
AC 417, 433 (Lord Hailsham).
50 ‘Manslaughter is a crime which varies infinitely
in its seriousness’ which may range from ‘mere
inadvertence’ to just short of murder: Gray v
Barr [1971] 2 QB 554, 581. See also R v Lavender
(2005) 222 CLR 67, 77.
51 See R v Kelly [2000] 1 QB 198, 208; R v Skinner
(2016) 126 SASR 120; Knight v R [2021] SASCFC
12.
52 This is not without concern. ‘The law as laid
down in Cleaver’s case is that all felonious killings
are contrary to public policy and hence, one
would assume, unconscionable. Indeed, there
is something a trifle comic in the spectacle of
Equity judges sorting felonious killings into
conscionable and unconscionable piles’: Troja v
Troja (1994) 33 NSWLR 269, 299 (Meagher JA).
53 Cf Law Commission of England and Wales,
The Forfeiture Rule and the Law of Succession
(Consultation Paper No 172, 30 September
2003).
54 See, for example, Re DWS (dec’d) [2001] Ch 568.
See also Roger Kerridge, ‘Visiting the Sins of the
Fathers on their Children’ (2001) 117 (July) Law
Quarterly Review 371.
55 Re Houghton [1915] 2 Ch 173; Re Pitts [1931] 1 Ch
546; Re Estate of Soukup (1997) 97 A Crim R 103.
56 See, for example Re Settree Estates; Robinson v
Settree [2018] NSWSC 1413.
57 One reason for extending the forfeiture rule to
persons found not guilty of murder on the basis
of insanity may be perceived disquiet over the
prevalence of drug induced psychosis and the
successful use of the mental impairment defence
by persons whose mental impairment has been
caused, or at least contributed, by the use of
drugs or alcohol. ‘Statistics collected from a case
file review undertaken by the Attorney-General’s
Department indicated that almost a quarter of
offenders who successfully used the mental
incompetence defence were suffering from an
impairment caused by drug induced psychosis
or from substance abuse and dependence’: at
South Australia, Parliamentary Debates, House
of Assembly, 4 August 2016, 6642 (Hon John
Rau, Attorney-General). See also Criminal Law
Consolidation (Mental Impairment) Amendment Act
2017 (SA); South Australia, Parliamentary Debates,
House of Assembly, 4 August 2016, 6640–6646;
South Australia, Parliamentary Debates, House of
Assembly, 30 May 2017, 9882–9883.
58 See also Victorian Law Reform Commission, The
Forfeiture Rule (Report No 20, September 2014)
30–34 [3.74]–[3.102].
59 Helton v Allen (1940) 63 CLR 69; Rivers v Rivers
(2002) 84 SASR 426.
60 Sylvia Villios, David Plater, Olivia Jay, Terry
Evans and Emily Ireland, Riddles, Mysteries and
Enigmas: The Common Law Forfeiture Rule (South
Australian Law Reform Institute, Adelaide, 2020)
113-120.
61 Victorian Law Reform Commission, The
Forfeiture Rule (Report No 20, September 2014)
ix.
62 SALRI’s reference was ably assisted by Professor
John Williams, the Hon David Bleby QC, the
late Helen Wighton (the founding Deputy
Director of SALRI), Louise Scarman, Holly
Nicholls, Joshua Aikens Professor Gino Dal
Pont of the University of Tasmania, Dr Xianlu
Zeng, Emily Sims, Anita Brunacci, Dr Mark
‘Matt’ Giancaspro, SALRI’s Advisory Board and
especially the students of the Law Reform class
at the University of Adelaide.