HIS HONOUR: This is an application under s 11 of the Forfeiture Act 1995 (NSW) for an order that the forfeiture rule apply such that the Defendant will not be entitled to benefit from the estates of Olga Aida Novosadek, Pablo Rodolfo Novosadek and Raul Jesus Novosadek (Raul) notwithstanding that the Defendant was found not guilty of their murders by reason of mental illness.
The Plaintiffs in this matter are John Paul Novosadek and Hugo Miguel Novosadek. I will simply refer to the Defendant as "the Defendant". The plaintiffs are half-brothers of the Defendant and half-brothers of the deceased Raul.
On 29 July 2012, the Defendant stabbed and killed Olga, Pablo and Raul Novosadek and two dogs owned by Olga Novosadek. Olga and Pablo Novosadek were the parents of the Plaintiffs. Olga Novosadek was also the mother of the Defendant and Raul. The father of the Defendant and Raul died in 2009.
The defendant was tried for murder before Garling J sitting alone. A statement of "agreed facts" tendered by the parties was placed before His Honour. This statement has also been admitted in evidence in the present proceedings. The basal facts before His Honour were that the defendant was sure that Satan was entering into his mother and father and then his brother Raul and so he stabbed Satan. He saw Satan entering into his own person and so he stabbed himself. He did not consider that he was doing wrong in so acting.
On 21 March 2014, Garling J returned a special verdict of not guilty by reason of mental illness of three counts of murder and two offences of serious cruelty and killing animals pursuant to s 530(1) of the Crimes Act 1990 (NSW): [2014] NSWSC 287.
While s 91 of the Evidence Act 1995 (NSW) does not allow evidence of the decision in the criminal proceedings to be admitted in the present civil proceedings to prove a fact in issue in the former proceeding - that is, that the Defendant was mentally ill at the relevant time - the Plaintiffs in these proceedings do not dispute the Defendant's mental illness: Permanent Trustee Co Ltd v Gillett [2004] NSWSC 278 at [40].
There is no property identified as owned by Olga and Pablo Novosadek. The property owned by Raul Novosadek is identified as two Commonwealth Bank of Australia accounts to the value of $387,389.79 and $1,034.54 (as at 22 October 2014). Raul Novosadek was not capable of managing his financial affairs due to a brain injury suffered in 1994 and the Defendant was appointed as Raul's financial manager on 24 October 2011. The funds in the first abovementioned account have since been held in the name of the Defendant on trust for Raul Novosadek.
This matter was heard on 18 March 2016. Mr Ellison SC appeared for the Plaintiffs instructed by Maclarens Lawyers. Mr Zucker of Zucker Legal appeared for the Defendant. A preliminary question as to whether the Plaintiffs should be granted letters of administration of Raul's Estate was, by consent, decided in the Plaintiffs' favour. The significant issue, whether the Defendant should be entitled to benefit from the estate of Raul, was then debated together with associated subsidiary issues.
Before dealing with the significant issue, I should note that it seemed to be assumed that of the three victims, Raul was the last to die.
Section 35 of the Conveyancing Act 1919 (NSW) states that:
In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder.
At the hearing of this matter, I expressed concern that the Coroner's report was not before the Court with the consequence that it was not clear that Olga, Pablo and Raul Novosadek died under "circumstances rendering it uncertain" as to the order of death. However, it is not necessary for me to determine whether the presumption of survivorship applies as the parties agree that all of the deceased died intestate. In these circumstances, the applicable principles are found in Part 4 of the Succession Act 2006 (NSW).
Section 107(1) of the Act provides that:
A person will not be regarded as having survived an intestate unless:
(a) the person is born before the intestate's death and survives the intestate by at least 30 days, or
(b) the person is born after the intestate's death after a period of gestation in the uterus that commenced before the intestate's death and survives the intestate for at least 30 days after birth.
As Raul left no spouse or children and is not to be regarded as having been survived by his mother Olga, the Plaintiffs and Defendant are thereby entitled to Raul's estate in equal shares under s 129 of the Act as the surviving brothers of the intestate (s 101 defines "brother" to include a person who has one or both parents in common).
It is unnecessary to consider what happens to the assets in the estates of Olga and Pablo as, evidently, these were of minimal value.
I thus turn to the principal issue.
[2]
Forfeiture Act 1995 (NSW)
Section 3 of the Act defines the "forfeiture rule" as "the unwritten rule of public policy that in certain circumstances precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing".
As I noted in Public Trustee v Evans (1985) 2 NSWLR 133 at 191, whilst there is no doubt that there is a forfeiture rule in our law, its exact ambit has never been clear, see e.g. Re Tucker (1920) 21 SR (NSW) 175 at 179-180. The rule seems only to have come to light as recently as 1892 in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 156. It may be that the nineteenth century policy of hanging murderers as a matter of course meant it was unnecessary to look at the problem before that time.
In Troja v Troja (1994) 33 NSWLR 269, RP Meagher JA at 299 described the forfeiture rule as "fixed in an abhorrence of murder". Similarly albeit with slight modification, Gzell J in Batey v Potts [2004] NSWSC 606 at [21] described the rule as "founded in public abhorrence of homicide".
However, as noted in by Austin J in Permanent Trustee Co Ltd v Gillett [2004] NSWSC 278 at [18], the precise rationale for the rule is not settled; while the majority in Troja v Troja rejected Kirby P's view that the rule was an equitable rule "designed to prevent unjust enrichment of, and unconscionable benefits accruing to, those guilty of a felonious homicide" (at 279), the majority did not adopt any clear alternative rationale.
The rule has sometimes been described as an "aspect of the maxim that a person shall not be permitted to profit from his or her own wrong" (Gonzales v Claridades [2003] NSWCA 227 at [42]). This view has recently been accepted by the majority of the Court of Appeal of Victoria in Edwards v State Trustees Ltd [2016] VSCA 28. In that case, Whelan JA (Kyrou JA agreeing) stated that the key issue was whether the relevant moral or criminal culpability required that the appellant not take a benefit from the death (at [66], [84]).
Traditionally, the rule does not apply in circumstances where the person who kills another person is not guilty of an offence by reason of mental illness: Re Plaister: Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547; Perpetual Trustee Co Ltd v Gillett [2004] NSWSC 278 at 228; Public Trustee (NSW) v Fitter [2005] NSWSC 1188 at [40]; Re Houghton; Houghton v Houghton [1915] 2 Ch 173 at 178.
In Re Pitts; Cox v Kilsby [1931] 1 Ch 546, Farwell J stated at 551 that the rule does not apply because "the public policy rule postulates a mens rea, and a verdict of 'guilty but insane' would have been equivalent to an acquittal as regards murder". (In England, as a result of Queen Victoria's insistence, "guilty, but insane" replaced the NSW equivalent of "not guilty on the ground of insanity"). Similarly, in Kemperle v The Public Trustee (Unreported, Supreme Court of New South Wales, 20 November 1985), Powell J stated at 16 that where there has been an acquittal on the ground of mental illness, the rule of public policy does not require the forfeiture rule to operate.
In Troja v Troja, Kirby P stated at 283 that the reason for the exception was that "the community is not taken to be outraged by the action of a person who is so affected by mental illness as to have lost the relevant insight into his or her actions". Similarly, Mahoney JA emphasised at 293-4 that a finding of insanity "put a person beyond the reach of the law".
However, on 28 October 2005, Part 3 (ss 10-14) was inserted into the Act. Section 11 provides:
(1) If a person who has killed another person is not subject to the forfeiture rule because the person has been found not guilty of murder by reason of mental illness, any interested person may make an application to the Supreme Court for an order that the rule apply as if the offender had been found guilty of murder.
(2) On any such application, the Court may make an order applying the forfeiture rule to the offender if it is satisfied that justice requires the rule to be applied as if the offender had been found guilty of murder.
(3) In determining whether justice requires the rule to be applied, the Court is to have regard to the following matters:
(a) the conduct of the offender,
(b) the conduct of the deceased person,
(c) the effect of the application of the rule on the offender or any other person,
(d) such other matters as to the Court appear material.
(4) If a forfeiture application order is made, the forfeiture rule is to apply in respect of the offender for all purposes (including purposes relating to anything done before the order was made) as if the offender had been found guilty of murder.
The Plaintiffs submit that, should an order be made under s 11, the forfeiture rule must be applied in an "all or nothing" fashion because s 11(2) is framed in terms of application of the rule "as if the offender had been found guilty of murder". The Defendant similarly submits that this Court has no power to modify the rule to suit the circumstances of the case under Part 2 of the Act in view of s 4(2) which states:
This Act does not apply to the following:
(a) an unlawful killing committed in the State that constitutes murder,
(b) an unlawful killing that would constitute murder if committed in the State.
There is currently little jurisprudence on s 11. Orders have been granted under s 11 by this Court in three matters. However, at least two of these were unopposed applications. There do not appear to have been any application in which an order under s 11 has been refused.
In Public Trustee (NSW) v Fitter [2005] NSWSC 1188, an order was made under s 11. Lloyd AJ emphasised the "voluntary conduct before the killing" of the Defendant including: discharging himself from a psychiatric facility; going to the deceased's home notwithstanding the AVO against him; and his use of cannabis and cessation of his antipsychotic medication, both of which significantly contributed to the psychotic episode during which he killed his wife (at [56]). His Honour stated that this conduct "suggests that justice requires the forfeiture rule to be applied" (at [57]). His Honour also considered "the absence of any blameworthy conduct on the part of the deceased" (at [58]). Lloyd AJ further noted that the Defendant's living expenses and medical treatment costs (as well as those of his children who took part in the killing) were presently being met by the State and, if released, he would at least have some assets of his own (at [59]). The effect of the order was that the deceased's estate would be distributed to the deceased's sister.
In Guler v NSW Trustee and Guardian [2012] NSWSC 1369, the Defendant consented to the making of an order under s 11. At the time that the Defendant killed his wife, he was a person detained under the Mental Health Act 2007 (NSW) although he was on permitted leave: see R v Guler [2006] NSWSC 966. White J stated that the forfeiture rule should apply in light of "the second defendant's conduct, the absence of any provocation by the deceased, the lack of contrition, and the prior history of violent behaviour". The effect of the order was that the deceased's estate would be held on trust for the three children of the Defendant and the deceased (all aged between 16 and 20).
In Hill v Hill (2013) 11 ASTLR 121; [2013] NSWSC 524, the Defendant also did not oppose the making of an order under s 11 and Lindsay J was satisfied that such an order was appropriate. In that case, the Defendant killed the victim whilst impaired by one or more prescription medications and in circumstances where, in the opinion of Dr Furst and Professor Greenberg, the Defendant was suffering from delusions due to schizophrenia (or alternatively, in the opinion of Professor Greenberg, due to a substance induced psychotic disorder): see R v Hill [2011] NSWSC 1196. There was a history of abusive behaviour towards the victim. The effect of the order was that the deceased's estate would be distributed between the deceased's sons (an infant and an adult).
[3]
Consideration
As I noted earlier, the Court is required by s 11(3) to have regard to the matters set out in (a)-(d) of that sub-section. I will now do so.
[4]
(a) Conduct of the offender
The Plaintiffs argue that the forfeiture rule should apply because of "the abhorrence with which the community should treat a triple killing (as obviously being worse than a single killing)". On behalf of the Defendant, it is submitted that instead "it is not a ground for the Court to reflect abhorrence when something has happened, terrible as it is, caused by an insane person".
In circumstances where the Legislature has chosen to extend the application of the rule to persons found not guilty of murder by reason of mental illness, it would be odd if criminal or moral culpability were the touchstone in determining whether the forfeiture rule should be applied. However, what authority there is seems to take into account the significant actions of the killer and the public revulsion that a person who has committed such actions should reap a financial benefit from them.
I thus take into consideration the following matters:
the fact that it was a triple killing
the lack of evidence of planning/premeditation or objective to profit: see Leneghan-Britton v Taylor [1998] NSWSC 218; Straede v Eastwood [2003] NSWSC 280 at [45]
the absence of evidence of a history of violence (as conceded by Counsel for the Plaintiffs), noting that it is agreed between the parties that Irma Geronimo, a close friend of Olga Novosadek, told police that Olga did not express fears that the Defendant would hurt her despite becoming increasingly concerned about his "embarrassing" behaviour: compare Guler v NSW Trustee [2012] NSWSC 1369
A matter of particular concern is the Defendant's use of cannabis and its effect on him.
The Plaintiffs submit that it is necessary to consider conduct of the Defendant that might "indicate premeditation or which might give rise to circumstances making the possibility of the unlawful killing more likely" and emphasises the evidence of Professor Greenberg with respect to the Defendant's cannabis usage.
The Defendant has smoked cannabis since a young age and reported to Professor Greenberg that he resumed his use of cannabis the night before the incident. To the extent that the Plaintiffs' aforementioned submission might suggest that the Defendant's use of cannabis amounted to premeditation, there is no evidence to support this submission. However, in line with Public Trustee (NSW) v Fitter [2005] NSWSC 1188, it is necessary to consider whether and to what extent the Defendant's voluntary use of cannabis played a role in the killings.
On behalf of the Defendant it is submitted that use of cannabis was "but one of a number of factors" that weighed in favour of an order under s 11 in Public Trustee (NSW) v Fitter and that the present case can be distinguished on the basis that "drugs were not the direct cause of the psychotic event". It is further emphasised that the Defendant had never received medical attention nor been prescribed medication for his psychotic illness. On the other hand, as noted by Counsel for the Plaintiffs in oral submissions, the Defendant himself never sought medical treatment for that illness.
Dr Furst in his report dated 9 December 2012 opined that, at the time of the incident, the Defendant was suffering from paranoid schizophrenia "which had probably been present for three years leading up to the offence". Professor Greenberg was also of the opinion that the Defendant was suffering from a paranoid schizophrenic disorder. However, in his report dated 19 October 2013, Professor Greenberg stated:
I am of the opinion that his use of cannabis may have exacerbated or aggravated his delusional belief system at the time of the offence. I am of the opinion that in view of the duration and intensity of the psychotic symptoms, his diagnosis is not that of a drug induced psychosis although his use of drugs likely played a significant role in the precipitation or the onset of the psychosis. (emphasis added)
In light of the evidence of Professor Greenberg, I consider that the Defendant's cannabis use is a relevant consideration in favour of the grant of an order.
It is next necessary to consider whether the Defendant has shown remorse or contrition.
The Plaintiffs submit that there is a lack of evidence of remorse on the part of the Defendant. It is submitted that the Defendant's denials of the killings to Sergeant Cognetta in the immediate aftermath indicate a refusal to acknowledge what he had done or the seriousness of what happened. The Plaintiffs further submit that the Defendant has not given evidence of remorse and that no remorse was directly conveyed to Ms Heydon.
On behalf of the Defendant it is submitted that the Defendant's attempts to kill himself both during the psychotic incident and during his first week on remand were a display of "immediate and considerable remorse". It is further submitted that such remorse has been "confirmed" by the reports of Professor Greenberg, Dr Furst, Dr Sharma and Ms Heydon and that at the time of the incident, the Defendant "thought that what he was doing was right".
The report of Ms Heydon (Needs Assessor) dated 17 February 2016 states:
Consistent with accounts in the reports in the background papers, staff indicated that [the Defendant] has continued to show remorse for his actions and has increasing insight into his illness and substance abuse. It is reported that as he is recovering from his illness, he is beginning to further appreciate the extent of the consequences of his actions. (emphasis added)
The report of Professor Greenberg states:
At the time of my psychiatric assessment, [the Defendant] reports he still has suicidal ideation. He states, "I don't want to live. I hurt my family. I loved them most. They may not be around anymore. I miss them. I did the wrong thing. I made a mistake. They would be around".
…
[A]s his medication effected an improvement in his mental state, his mood has become more congruent and he has developed a depression and now expresses remorse for his past behaviour. His level of insight and level of reality has improved over the recent months, although the full reality of his behaviour now only starting to fully impact on [the Defendant]'s mental state.
Dr Furst's report states: "He misses his family and is very remorseful about his actions".
Dr Sharma's report states:
He stated he stabbed himself too as his body also had a demon inside. He reported hearing a demon a few days prior to the incident and seeing a "shadow", who touched his body and left through the window. He stated he didn't believe in any of this anymore. He was remorseful for the incident.
…
[The Defendant] is remorseful for his actions involving the index offence and is keen to comply with his treatment.
With respect to the Defendant's attempts to kill himself, it is difficult to draw the inference that such attempts in the context of a psychotic episode can be considered as displays of remorse. Indeed, according to the agreed facts, the Defendant's own explanation of his attempt to kill himself to Detective Senior Constable Badger was "I became aware, he, Satan, was jumping between the bodies. Between Mum, Dad, Raul and the dogs … My fate was to kill Satan and I failed. He was strong. I tried to kill myself to kill Satan."
However, on the evidence before the Court (especially that of Dr Greenberg), it cannot be said that there is a lack of contrition as was the case in Guler v NSW Trustee and Guardian [2012] NSWSC 1369. I therefore take into consideration the Defendant's expressions of remorse. However, to be balanced, there is little evidence of remorse and what there is appears to be subjective feelings relayed to treating doctors. There is virtually no evidence of expressed remorse to other members of the family of the victims.
[5]
(b) Conduct of the deceased person
As conceded on behalf of the Defendant, there is no evidence before the Court to suggest that the deceased were anything but victims.
[6]
(c) Effect of the application of the rule on the offender or any other person
The Plaintiffs submit that the Defendant's social security income will "easily exceed" his expenses until such time as the Defendant may be considered for release. It is submitted that under subsection 3(c) I should consider the effect of the application on the Plaintiffs (presumably, that their respective shares in the estate or estates would be reduced).
The report of Ms Heydon dated 17 February 2016 states that the Defendant may not be released for 10-15 years and continues:
He will require a significant level of support if released and a HASI type accommodation and support package would be recommended. Additional therapeutic support would also be beneficial to assist him to deal with the psychological sequelae of what he has done. [The Defendant] has no family or social support and has lost the family members to whom he was closest. As he is required to pay fees, he is left with a modest sum of money for all other outgoings and at the best estimate would be able to save 8% of his pension. [The Defendant] would benefit from receipt of a portion of his brothers estate to provide for his future needs as recommended in this report
It is submitted on behalf of the Defendant that Ms Heydon's report was predicated on the assumption that government support for persons such as the Defendant will be in place in 10-15 years and that such an assumption should be made "cautiously". It is submitted that the Court should note proposals such as the Social Services Legislation Amendment Bill 2015 (Cth) that would "end social security benefits for persons such as [the Defendant]". However, as noted by Counsel for the Plaintiffs in oral submissions, it is difficult to predict what social security regime will be in place in 10-15 years.
As noted above, in Public Trustee (NSW) v Fitter [2005] NSWSC 1188 Lloyd AJ took into consideration the fact that the Defendant's living expenses and medical treatment costs were presently being met by the State and, if released, he would have some assets of his own. The effect of the order was that the deceased's estate would be distributed to the deceased's sister who expressed an intention to give a "substantial amount" of the funds to Homicide Victim Support Groups.
By contrast, the pecuniary needs of the offenders were key considerations in favour of orders to modify the application of the forfeiture rule under Part 2 of the Act in R v R [1997] (Unreported, Supreme Court of New South Wales, Hodgson CJ in Eq, 14 November 1997) and Jans v Public Trustee [2002] NSWSC 628. In both cases, the offenders were convicted of manslaughter instead of murder on the basis of diminished responsibility. However, in these cases, the grandmother and children of the respective offenders also consented to the orders.
In Permanent Trustee Co Ltd v Gillett [2004] NSWSC 278, Austin J similarly found that, if there was a causal relationship between Mr Gillett's actions and the deceased's death, Mr Gillett's pecuniary needs warranted an order modifying the application of the forfeiture rule. However, in that case, the deceased's sister also consented to the relevant orders.
The present case is not a contest of needs. There is no evidence before the Court as to the Plaintiffs' financial positions. However, the task of the Court is not to weigh up the respective needs of the Defendant and Plaintiffs: see Public Trustee (NSW) v Fitter. Therefore, while the potential future pecuniary needs of the Defendant are a relevant consideration, they do not attract decisive weight.
[7]
(d) Such other matters as to the Court appear material: inflexible application
It is submitted on behalf of the Defendant that under subsection 3(d) I should take into consideration the likelihood that, if the Defendant was not found not guilty by reason of mental illness, he would have been found not guilty by reason of substantial impairment by abnormality of mind under Crimes Act 1900 (NSW) s 23A and guilty of manslaughter. It is submitted that in such a case, the Defendant could have applied to this Court for modification of the application of the forfeiture rule under Part 2 of the Succession Act such that the Defendant may have avoided the "absolute and inflexible forfeiture rule".
I do not consider that I need consider this hypothetical situation. First, the Defendant was found not guilty of murder by reason of mental illness. Secondly, if the Defendant's scenario had have become actuality, it is speculative as to whether he would have been given relief under Part 2 of the Forfeiture Act.
It may be that there is a gap in the legislation so that a person found not guilty of murder by reason of mental illness is in a worse position that a person found guilty of manslaughter because of substantial impairment by abnormality of mind. If so, this is not the occasion to see if there is a way around that problem.
Under the Act, the factors that the Court must consider in determining whether justice requires the effect of the rule to be modified under Part 2 set out in s 5(3) are the same as those under s 11(3).
The application of the forfeiture rule has been modified under Part 2 in several cases involving diminished responsibility including R v R, Batey v Potts, Jans v Public Trustee and Leneghan-Britton v Taylor. However, as noted above, a key consideration in both R v R and Jans v Public Trustee was the consent of the grandmother and children of the respective offenders to the orders.
In Troja v Troja, RP Meagher JA stated at 299:
The basis of the doctrine is public policy, an abhorrence of the notion that one may profit from killing another, an odium occisionis.
Similarly, Mahoney JA stated at 297-8:
I see no difference where the killing is held to be manslaughter and not murder. The relationship between the killing and the claim to the benefit from it is direct. It is the killing which has brought about the operation of the will. There may be borderline cases. But, as seen from this and other legal systems, to prevent a criminal killer from taking directly the estate of her victim does not appear to me to involve departure from the dictates of justice.
As I noted earlier, in Batey v Potts, Gzell J stated at [21] that the forfeiture rule is founded in public abhorrence of homicide. His Honour went on at [42] that, were it not for other considerations peculiar to the operation of the will, he would have been inclined not to modify the application of the forfeiture rule because:
the frenzied attack and the seeming deliberate acts that followed it, even though committed while there was an exacerbation of his schizophrenia that produced an abnormality of mind that significantly affected his perception of events and his judgment and self control, were such that public policy and its abhorrence of homicide would outweigh any requirement of justice to modify the rule.
In Public Trustee v Frazer (1987) 9 NSWLR 433, a case prior to the introduction of the Act, Kearney J at 444 considered that the rule should apply inflexibly because:
I do not consider that the son has established either such features of the crime or such lack of moral culpability as to displace the operation of the rule. His crime was one of deliberate violence, although accompanied by reduced appreciation of circumstances and susceptibility to the heat of the moment by reason of his paranoid schizophrenia. However, the evidence shows that he was aware of the nature of his acts and of the moral wrong-doing involved.
The present case is not one where it can be said that the Defendant was aware that what he was doing was wrong at the time he did the killings. However, one must look at the event not only through the eyes of the Defendant, but also through the eyes of the public and ask whether the abhorrence of the killing of three family members, including a brother whose finances were committed to his care as guardian, in an event the occurrence of which was contributed to by voluntary use of cannabis, operates strongly against the person still being able to collect a financial benefit from his victim's estate. The answer is that, it does.
It is submitted on behalf of the Defendant that under subsection 3(d) I should take into account evidence regarding his conduct and his relationship with his family. Emphasis is placed upon "powerful" references that were provided in support of his application for appointment as financial manager of Raul Novosadek, including references from Raul and Olga Novosadek and Irma Geronimo that refer to the Defendant's support of his brother.
This submission raises the question of whether under subsection 3(d) the Court can take into account positive conduct of the Defendant that is unrelated to the killings. In Straede v Eastwood, Palmer J stated at [33] that "it seems to me that in order to qualify as conduct to which the Court must have regard under s 5(3)(a) the conduct of the offender must have some bearing on the very fact which brings into operation the forfeiture rule, that is, the unlawful killing of the deceased".
While in Leneghan-Britton v Taylor, Hodgson CJ of Eq took into account the fact that the deceased's granddaughter "sold her home in order to assist the deceased and had little of the proceeds of sale left, and had attempted to assist the deceased when no other member of the family was making such an attempt", as noted in Straede v Eastwood at [34], in taking this matter into account Hodgson CJ emphasised that "the situation arose because of the very close relationship between the plaintiff and the deceased, and because of the plaintiff's attempt to be of service to the deceased at a time when she was mentally unable to cope with this".
I do not consider that, even if it were relevant, this evidence, mainly by way of statements to treating health workers adds much to the Defendant's case. In any event, if evidence of positive relationships between killer and victim is relevant, so also is the negative evidence of the Defendant's use of drugs and the fact that he was a guardian of one victim and one of the other victims was his own mother.
Putting all these factors together, I consider that in all the circumstances which I have outlined and in particular the public abhorrence of what occurred, justice requires that I make an order under s 11 of the Forfeiture Act that the Forfeiture Act apply to the killings by the Defendant of his mother, step-father and brother Raul as if the Defendant had been found guilty of their murders.
In the circumstances, the Plaintiffs do not seek a costs order against the Defendant.
I thus make an order as set out in [71] above and make no order as to costs.
[8]
Amendments
05 May 2016 - Cover page Representation field: Zucker & Co changed to Zucker Legal.
Paragraph [63], changed Mahoney J to Mahoney JA.
05 May 2016 - Paragraph [8], changed Zucker & Co changed to Zucker Legal.
05 May 2016 - Paragraphs [3] & [4], changed shot to stabbed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 May 2016