Edwards v State Trustees Limited [2016] VSCA 28

1 I have read in draft the judgment of Santamaria JA.

2 The general principle articulated in Cleaver v Mutual Reserve Fund Life Association[1] and in In the Estate of Crippen,[2] is that no person can obtain, or enforce, any rights resulting to them by their own crime. In the context of wills, and inheritance, this is often called 'the forfeiture rule'.

3 The articulation and application of the forfeiture rule in cases of murder is clear and uncontroversial.[3] The articulation and application of the rule to unlawful killings which are not murder is more difficult. As Santamaria JA has pointed out, there is no rule which applies so as to preclude the taking of a benefit in all cases of manslaughter. Santamaria JA concludes that, however the rule is formulated, it precludes the taking of a benefit where the death is brought about by deliberate, intentional and unlawful violence or threats of violence. He considers that it would not apply where the circumstances were such as to preclude rational judgment. He accepts that the rule could extend to cases of manslaughter other than cases where there was deliberate, intentional and unlawful violence, but does not consider this to be an appropriate occasion for a reconsideration of the so called 'motor manslaughter' cases.

4 The proposition that the forfeiture rule applied in cases of manslaughter began with the decision in In the Estate of Hall.[4] The particular manslaughter in that case was, in terms of moral culpability, as close to murder as a manslaughter could be. Since then courts have grappled with the inherent difficulties of any single general rule purporting to apply to manslaughter. The problem arose, first, in relation to the 'motor manslaughters',[5] where manslaughter was committed as a result of criminal negligence, and in relation to suicide.[6] Difficulties also arose in circumstances of diminished responsibility,[7] either because of mental impairment or for other reasons.[8] Most recently, difficulty has arisen in relation to suicide pacts and assisted suicide[9] and unlawful killings in the context of family violence.[10] This case is an example of the latter category. Here the crime was defensive homicide.

5 The offence of defensive homicide is, for these purposes, relevantly analogous to manslaughter, particularly manslaughter in circumstances of excessive self-defence.[11] The offence of causing death by culpable driving in s 318(1) of the Crimes Act 1958 is similarly an offence relevantly analogous to manslaughter by criminal negligence.[12]

6 The trial judge found that the decision of the majority in the New South Wales Court of Appeal in Troja v Troja[13] was authority for the proposition that:[14]

[T]he forfeiture rule is 'absolute and inflexible' in its application to 'felonious' killings, which I take here to refer to murder and manslaughter.

7 The trial judge said the majority in Troja did not confine their conclusion to cases concerning 'deliberate and forethought' acts.[15]

8 The trial judge said the rule might not apply to acts which were not deliberate and intentional.[16] She doubted whether violence or threat of violence was necessary to attract the rule.[17] She said she was even more doubtful if the rule would apply to culpable driving or similar crimes and she suggested that that might be because an 'inadvertent act' will not offend the public policy principle.[18]

9 She referred to a decision of Gillard J in In the matter of the Estate of Soukup[19] and she concluded:[20]

The rule laid down in the Australian authorities therefore appears to be that, at the least, a person who kills another person by a deliberate and unlawful act forfeits any benefit arising as a direct result of that act.

10 The trial judge's doubts about the application of the rule to culpable driving and similar crimes reflect older English authorities which did not apply the rule in that context. These are the so-called 'motor manslaughter' cases.

11 If there is an absolute and inflexible rule, and if the existing UK authorities concerning 'motor manslaughter' are correct, it seems that the rule would not apply to unlawful killings by culpable drivers notwithstanding that such conduct has, for at least the last two decades or so, been seen as criminal conduct potentially as serious and as culpable as any manslaughter in other contexts,[21] attracting very substantial terms of imprisonment.[22] If the existence of a deliberate unlawful act is the relevant qualifier to this absolute and inflexible rule then manslaughters by criminal negligence, which cannot be seen as anything other than seriously culpable and which attract very substantial terms of imprisonment,[23] would also not be subject to the rule. Yet on the Troja approach, the offender in Public Trustee v Evans,[24] who was discharged on the basis the punishment would be nominal, and the offender in Re Keitley,[25] who was given a non-custodial disposition, in each case because of the domestic violence to which they had been subjected by the deceased, would be subject to the absolute and inflexible rule.

12 It is necessary to review the authorities to determine whether this is the position which applies to manslaughter and relevantly analogous crimes.

Review of relevant authorities on manslaughter

13 Santamaria JA has reviewed the relevant authorities, as did the trial judge. So far as possible, I will endeavour to avoid repetition.

14 As Kirby P explained in his dissenting judgment in Troja, the reason why the principle known as the forfeiture rule was not articulated earlier than it was is because of the effect of common law forfeiture following conviction for a felony which operated until abolished by statute.[26] In Helton v Allen[27] it was suggested that the earliest appearance of the rule in any form may be said to be The Amicable Society for a Perpetual Life Assurance Office v Bolland (commonly known as Fauntleroy's case).[28] That case concerned a life insurance policy taken out by a person who had committed forgery and had been executed. The insurer successfully resisted a claim under the policy. The Lord Chancellor considered that the case could be resolved by a 'very plain and simple consideration',[29] that being whether the policy would have been enforceable if the very risk that transpired had been insured against, that is, death as a result of execution for a felony. He held that such a contract could not be sustained and that it would be void 'upon the plainest principles of public policy'.[30]

15 Cleaver and Crippen were murder cases. I will not add to the analysis Santamaria JA has already undertaken.

16 The first case in which the principle was held to apply to manslaughter was Hall. As was later observed in Gray v Barr[31] in a passage quoted by Santamaria JA, the only surprising aspect of Hall is that the offender there was convicted of manslaughter rather than murder. In that context the conclusion that Cleaver governed the position was unsurprising and clearly correct. That Court also endorsed the decision in Fauntleroy's case.

17 Thus far, the forfeiture rule seemed clear, both in relation to the principle upon which it was based and in its application. The issue became more difficult, however, with the 'motor manslaughter' cases. The first is Tinline v White Cross Insurance Association Limited.[32]

18 The plaintiff in Tinline was seeking to enforce an insurance policy indemnifying him for his legal liability to pay a third party compensation as a result of 'accidental personal injury' caused by his driving. While driving at an excessive speed, the plaintiff ran into three people who were crossing the road, injuring two and killing a third. He was prosecuted for manslaughter. Then, as now, manslaughter by criminal negligence required proof of negligence of a character much graver than that which constitutes negligence in the civil context.[33] The insured in that case had pleaded guilty to manslaughter after the prosecution had withdrawn an allegation that he had been drunk. The insurer sought to escape liability under the policy on the ground that it was 'against public policy to indemnify a person against the civil consequences of his criminal act'.[34] Bailhache J, in the King's Bench Division, said that the point was 'a novel one'.[35] He rejected the insurer's defence, observing that there could be no doubt that the defence would not succeed if the persons who had been knocked down had all been injured, rather than one being killed.[36] He suggested that it could not make any difference that one had been killed. He emphasised that 'if this occurrence had been due to an intentional act on the part of the plaintiff, the policy would not protect him'.[37] By this, Bailhache J did not mean intentionally speeding, but rather, intentionally running into a person.

19 The next relevant case in this context is James v British General Insurance Company Limited.[38]

20 James was another case which concerned motor vehicle insurance. The insured was driving whilst he was drunk after attending a wedding. He collided with a motorcycle. The motorcycle driver was injured and his passenger was killed. The insured was convicted of the manslaughter of the deceased passenger. The insured then sought to recover the damages, both for personal injuries and property damage, for which he was liable; the costs for which he was liable; the cost of repairs to his own vehicle; and the legal costs which he had incurred in defending the civil claim and the criminal proceeding. In the present context, it is important to note that the insured was a direct beneficiary of the claim made; the claim he made on his insurer was not confined to his liability to the third parties. The insured relied upon the decision in Tinline. The insurer argued that it should not have to indemnify the plaintiff against liability for wrongful acts deliberately and intentionally done by him. In that context, it was submitted that he had deliberately and intentionally become drunk and driven while drunk. Roche J, in the King's Bench Division, rejected the insurer's arguments. He said:[39]

I see no ground for asserting a principle of public policy which operates only against persons who drive when they are drunk ... Moreover the principle affects many other cases besides those of motor insurance. It affects a very large number of workmen's compensation insurances where workmen are injured by acts or defaults ...

21 Roche J referred to Cleaver and, in particular, he referred to the observations of Lord Esher MR concerning reliance on the public policy principle in order to escape contractual liability.[40] Roche J agreed with Lord Esher MR's observations and held that the principle should not be carried a step further than public policy requires. He observed that whilst the 'principles of public policy ... are themselves unchanging', 'their applications may be infinitely various from time to time and from place to place'.[41] He went on to say that once 'a settled rule' had been adopted, then it would be the duty of judges to follow that rule, and he considered that such a rule had been adopted in Tinline.[42] He rejected any suggestion the insured's conduct had been relevantly 'wilful or advertent'.[43] Whilst it was 'gross' negligence, it was still negligence, not a wilful act.[44] There was no intention to injure life or limb.[45]

22 In Beresford v Royal Insurance Company Limited the forfeiture rule was relied upon so as to excuse a life insurance company from having to pay on a policy in circumstances where the death was caused by suicide, then a crime.[46]

23 This was how things stood when Helton was decided by the High Court.

24 As Santamaria JA points out, there was no issue raised in Helton as to the scope or application of the forfeiture rule. In Helton, a person who had been found in civil proceedings to have unlawfully killed the testatrix had been held not to be entitled to benefit under her will. Relevantly, the issues the High Court had to decide were whether his earlier acquittal at a criminal trial precluded application of the forfeiture rule, and whether the directions which had been given to the civil jury as to the burden of proof were correct. It was as an introduction to the consideration of those issues that Dixon J (as he then was) and Evatt and McTiernan JJ outlined the rule as it then stood, referring to the decision in Hall, which was said to have 'finally established' that the principle applied to manslaughter,[47] but without referring to any of the insurance cases, other than Fauntleroy's case (the executed forger), Beresford (suicide) and Prince of Wales &c Association Co v Palmer,[48] a case concerning insurance taken out by a poisoner on the lives of his victims. The other two judges, Rich and Starke JJ, did not see the need to explain the principle at all. A new trial was ordered on the ground that the judge had misdirected the civil jury as to the burden of proof.

25 Dixon, Evatt and McTiernan JJ did not address the motor manslaughter cases. This is hardly surprising. What they said about the forfeiture rule was no more than general observations placing in context the issues which they had to address. What was said was not, in my view, intended to be a description of the scope of the forfeiture rule in the context of manslaughter. Amongst other things, if interpreted that way the judgment would have implicitly rejected the English motor manslaughter cases. No one seems to have ever suggested that that was the effect of Helton.[49]

26 The next case of relevance is Hardy v Motor Insurers' Bureau.[50] In this case, the driving was of a different character to the grossly negligent driving in Tinline and James. Here an uninsured driver, who had been apprehended by a security guard when attempting to drive a van out of certain premises, deliberately drove off whilst the security guard was leaning into the vehicle and dragged him for some distance along the road. The driver was convicted of maliciously causing grievous bodily harm. Because the driver was uninsured, the security officer sought recovery from the Motor Insurers' Bureau for the injuries sustained. The Motor Insurers' Bureau was required, pursuant to an agreement with a government department, to meet any judgment against a driver required by legislation to be insured which was not satisfied. The Motor Insurers' Bureau resisted payment on the ground that the driver had engaged in a deliberate criminal act. The Court of Appeal rejected the Motor Insurers' Bureau's position.

27 Lord Denning MR referred to Cleaver and to Beresford and held that the driver would have been precluded from recovering, but that the injured third party was not.[51] The injured third party, he held, was not affected by the 'disability which attached to the motorist himself'.[52] Lord Denning MR held that Cleaver and Beresford did not apply where the benefit came into the hands of a person not affected by the disability, and that no person can claim reparation or an indemnity for the consequences of a criminal offence where the 'essential ingredient' is their 'wicked and deliberate intent'.[53]

28 Pearson LJ agreed with Lord Denning MR. He held that, in this case, the person had been injured by 'an intentional criminal act' but that the public policy which precluded recovery did not preclude 'alternative or independent rights'.[54] In this respect, Pearson LJ adopted an expression taken from the judgment of Fry LJ in Cleaver.[55]

29 Diplock LJ held that the forfeiture rule applied when it was sought to enforce rights relying upon acts 'regarded by the court as sufficiently anti-social to justify the court's refusing to enforce that right'.[56] Diplock LJ also emphasised that this bar operated only against the person who committed the anti-social act.[57] Diplock LJ addressed the issue raised by Tinline and by James and said: 'The court has to weigh the gravity of the anti-social act and the extent to which it will be encouraged by enforcing the right sought to be asserted against the social harm which will be caused if the right is not enforced.'[58] Diplock LJ also said:[59]

I can see no reason in public policy for drawing a distinction between one kind of wrongful act, of which a third party is the innocent victim, and another kind of wrongful act; between wrongful acts which are crimes on the part of the perpetrator and wrongful acts which are not crimes, or between wrongful acts which are crimes of carelessness and wrongful acts which are intentional crimes.

30 It is significant, it seems to me, that only Diplock LJ addressed and sought to explain and incorporate Tinline and James into his analysis. This led him to the approach under which it was necessary to weigh the gravity of the 'anti-social act', an approach which was later to find expression in cases like Evans and Keitley. Lord Denning MR and Pearson LJ did not address the 'motor manslaughter' cases. Indeed, their analyses are inconsistent with James in that they would not have permitted recovery of the offender's own insured losses.

31 Outside the context of unlawful killing, in Fire and All Risks Insurance Co Ltd v Powell[60] the Full Court of this Court adopted an approach to the principle that no person can enforce rights resulting to them by their own crime which focused on the circumstances of each particular case. In that case O'Bryan and Pape JJ adopted Diplock LJ's analysis in Hardy to the effect that what was required was to determine in each case whether the relevant conduct was sufficiently 'anti-social' to justify a refusal to enforce the right.[61] Smith J also adopted a similar approach but he observed that in crimes of the gravest sort, such as murder and intentional killing constituting manslaughter, the rule may be inflexible.[62]

32 The next case of importance is Gray.[63]

33 Gray concerned what might be termed a 'love triangle'. One of the two men in the 'triangle' confronted the other with a shotgun. He fired it once, intending to frighten the other, after the other had blocked his path. He then attempted to force his way past the other man. There was a struggle and the man holding the shotgun fell. In the course of falling, a second shot was involuntarily fired, which killed the other man. The person who fired the shots was acquitted of murder and of manslaughter. He was sued by the estate of the dead man for unlawfully and negligently causing the death. The man who had fired the shots had a 'hearth and home' insurance policy, which indemnified him against his legal liability to pay damages for bodily injury caused by an accident. The insurer denied liability on two bases: there had not been an 'accident'; and that to indemnify would be against public policy.

34 Lord Denning MR found in favour of the insurer on the basis that what had happened was not 'an accident'.[64] He then turned to the public policy defence. He analysed the 'motor manslaughter' cases asserting that in that context it was 'settled beyond question' that the insured could recover, citing Tinline and James, except where the driving was both 'wilful and culpable', citing Hardy.[65] Lord Denning MR adopted the trial judge's formulation of the relevant issue, namely, whether the person seeking indemnity was 'guilty of deliberate, intentional and unlawful violence, or threats of violence'.[66]

35 Salmon LJ found in favour of the insurer on the basis that, whilst what had happened was 'an accident', it was not an accident of the kind covered by the policy.[67] Salmon LJ suggested that the public policy upon which the insurer relied was based upon the need for deterrence and the extent to which the act 'would shock the public conscience'.[68] Salmon LJ said he was confident that public policy required that no one who 'threatens unlawful violence with a loaded gun' should be allowed to enforce a claim.[69] But he emphasised that he was deciding no wider proposition, and, in particular, that he was not deciding that the rule would necessarily apply to all crimes of manslaughter, which he said 'varied infinitely in [their] seriousness'.[70] He observed that Hall may seem to be authority for the proposition that all manslaughters were subject to the rule, but that Hall was explicable on the facts of that particular case.[71]

36 Phillimore LJ held that what had occurred was not 'an accident'.[72] He agreed with observations made by Lord Denning MR and Salmon LJ to the effect that manslaughter varies from conduct which is almost murder to conduct which is only criminal 'in the technical sense'.[73] He suggested that it would be 'foolish' to attempt any general rule and said his decision was confined to the facts in this case.[74]

37 In Regina v Chief National Insurance Commissioner, Ex parte Connor,[75] Lord Lane CJ, with whom Griffiths and Webster JJ agreed, adopted the observations of Salmon LJ in Gray to the effect that there was no general rule in relation to manslaughter, and he also adopted Lord Denning MR's suggestion that the 'logical test' was whether the person seeking indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence.[76]

38 Prior to Troja divergent approaches had been taken in first instance decisions in Australian courts concerning the application of the forfeiture rule to manslaughter. On the one hand, there were Evans, Public Trustee v Fraser[77] and Keitley where first instance judges had held that cases of manslaughter were to be assessed on a case-by-case basis. In other words, the application of the general principle to cases of manslaughter was not absolute and inflexible. On the other hand, two decisions of Powell J, in Kemperle v The Public Trustee[78] and in Bain v Morabito,[79] had rejected this approach. Santamaria JA has addressed these cases. I will not repeat what he has said. One additional decision of note is that of McPherson J in Re Stone.[80]

39 In Re Stone, McPherson J considered the position of a joint tenant who had killed his co-tenant wife in circumstances of diminished responsibility. He was convicted of manslaughter and sentenced to 10 years' imprisonment with a non-parole period of 4 years. McPherson J decided that the crime itself 'did not affect the incidence of survivorship inherent in a joint tenancy',[81] and then considered whether public policy (the forfeiture rule) required that the offender's enlarged interest be held on constructive trust. He approached the issue on the basis that the outcome depended upon 'the nature and circumstances of the killing'.[82] He referred to the English decision of In re Giles,[83] and to Evans and said:[84]

Even if one adopts the approach taken by Young J in Public Trustee v Evans, and accepts that there is a discretion to exclude the rule of public policy, the present case is in my view not an appropriate one for doing so. The circumstances of the killing do not appear in any detail from the material before me; but, attracting as they did a sentence of ten years imprisonment, they cannot be regarded as involving criminality in only 'a very minor degree'.

40 The majority in Troja (perhaps Meagher JA more emphatically than Mahoney JA) rejected the approach in Evans, Fraser and Keitley.

41 Troja was decided at first instance by Waddell CJ in Eq in the New South Wales Supreme Court Equity Division.[85] Waddell CJ in Eq found it was not possible to formulate a general statement of the rule which applied to all manslaughters.[86] Kirby P in the Court of Appeal suggested that Waddell CJ in Eq had accepted that there was a discretion.[87] I think it is more accurate to say that Waddell CJ in Eq accepted that there could be an exception to the general rule based upon a moral judgment about the degree of criminality involved in the relevant conduct.[88] Waddell CJ in Eq concluded that however that exception might be expressed Mrs Troja did not come within it.[89]

42 In the New South Wales Court of Appeal Kirby P dissented. He considered that the fundamental rationale for the forfeiture rule had never been properly considered.[90] He said it was necessary for a choice to be made between whether the forfeiture rule was to be seen as a rule of law based upon public policy or an application of established legal rights modified by the operation of equitable doctrines.[91] He said Helton did not constitute a determination of the scope of the rule.[92] He approved of the decisions in Evans, Fraser and Keitley,[93] and held that the correct approach was to determine whether the taking of the benefit was unconscionable, and that the law operated in circumstances where it was unconscionable by the imposition of a constructive trust.[94] He was conscious of the fact that in adopting this approach he was undertaking a 'reformulation' of the forfeiture rule.[95]

43 Mahoney JA considered that the forfeiture rule had been affirmed and applied in circumstances relevant to the case before the Court of Appeal by the High Court in Helton and by the House of Lords in Beresford.[96] He emphasised that it was important to distinguish the issues of what the principle was and how it was to be applied.[97] He adopted the formulation of the majority in Helton, that the law would not enforce 'rights directly resulting to a person asserting them from the crime of that person'.[98] Mahoney JA pointed out that the principle arises in different contexts and he referred to some of the earlier cases. The only manslaughter case to which he referred was Hall.[99] He then postulated the relevant issue as being whether the principle should 'now be rejected' and said:[100]

My inclination is that this case should be decided merely according to the law.

44 Waddell CJ in Eq would no doubt have thought that that is what he had done.

45 Mahoney JA said principles concerning the effects of illegality did not exist in a 'single strand' and he referred to the differences which exist in the consequences of illegality in different circumstances.[101] He held that for present purposes the principle was not limited to intentional wrongs, that it clearly applied to murder, and that he could see no difference 'where the killing is held to be manslaughter and not murder'.[102] Somewhat confusingly, he then added: 'There may be borderline cases.'[103]

46 It is unclear to what 'border' he was referring, or by reference to what standard the borderline cases were to be judged. He rejected the suggestion that the issue was to be determined in accordance with the principles of unconscionability.[104]

47 Meagher JA held that the rule was that where a person who would 'otherwise obtain a benefit by the death of another has brought about that other's death by violent means, he shall not be entitled to take that benefit.'[105] He said that this rule was 'absolute and inflexible'.[106] He said that Evans, Fraser and Keitley were not the law.[107] It is to be noted that 'violent means' was expressed to be a critical determinant of the rule's scope.

48 In my view, Kirby P's 'reformulation' of the forfeiture rule as a principle of equity is not consistent with prior authority. The rule has always been said to be a rule of law based on public policy.

49 Mahoney JA addressed the issue without regard to any of the cases concerning manslaughter other than Hall, which in all but name was a murder case. He said there was a general rule which applied to manslaughter just as it did to murder, but then said there might be 'borderline cases', without explaining where or what the 'border' might be.

50 Meagher JA did not address the manslaughter cases. If his formulation of the rule is adopted, it is confined to 'violent means'. Thus, it does not catch those guilty of most serious and reprehensible conduct, such as causing death by culpable driving or manslaughter by criminal negligence, but does catch those whom the criminal law might properly judge as barely warranting any punishment (such as the offenders in Evans and Keitley). The trial judge did not adopt this formulation of the rule. She formulated the rule as one determined by deliberate acts, and she expressly doubted whether violence or threat of violence was necessary.

Dunbar v Plant and Australian decisions since Troja

51 Whilst the position in England altered significantly with the passage of the Forfeiture Act 1982, as Santamaria JA has pointed out, it is still necessary for courts in England to determine whether the forfeiture rule would otherwise apply. In that context, it seems to me that the Court of Appeal in Dunbar v Plant[108] articulated the position well.

52 Mummery LJ in Dunbar accurately analysed the position, in my view, when he said:[109]

In my judgment, however, the presence of acts or threats of violence is not necessary for the application of the forfeiture rule. It is sufficient that a serious crime has been committed deliberately and intentionally. The references to acts or threats of violence in the cases are explicable by the facts of those cases. But in none of those cases were the courts legislating a principle couched in specific statutory language. The essence of the principle of public policy is that (a) no person shall take a benefit resulting from a crime committed by him or her resulting in the death of the victim and (b) the nature of the crime determines the application of the principle.

53 Mummery LJ pointed out that the authorities revealed that the rule did not apply in all cases of manslaughter.[110]

54 In this context reliance on intention and deliberateness is potentially confusing. The offender in Gray did not fire 'deliberately' but his relevant conduct in taking the loaded weapon to the scene, using it to threaten the deceased and attempting to push past him was deliberate. Likewise, a drunken or drug-affected driver drives deliberately, and a drunken or drug-affected person handling a firearm also does so deliberately.

55 Provided unlawful killings as a result of culpable driving or as a result of other criminally culpable conduct are not excluded by the requirement that the crime be deliberately intentional, as in my view they would not be, then it seems to me that Mummery LJ has formulated the correct approach. Cases of murder are straightforward. In cases of manslaughter culpability can vary between those which are close to murder and those which might warrant little or no criminal punishment at all. That is why in cases of manslaughter the nature of the particular crime must determine the application of the principle.

56 Phillips LJ in Dunbar, with whom Hirst LJ agreed, said that 'apart from the motor cases', the forfeiture rule had invariably been applied in England in cases of manslaughter.[111] But he observed that in his view the judges would themselves have modified the rule if it had not been for the intervention of the legislature.[112] He said that 'the only logical way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability' that the rule should not be applied.[113]

57 Gillard J in the Trial Division of this Court followed the majority in Troja in Soukup. He suggested that the law in this State did not recognise any exception to the application of the forfeiture rule in manslaughter cases.[114] Having said that, however, he observed that it was unnecessary for him to decide whether an inadvertent or involuntary act which resulted in a finding of manslaughter would preclude the operation of the rule, and he suggested ('for what it is worth') that the English approach, which he said would preclude the operation of the rule if the person seeking the right was not guilty of deliberate intentional and unlawful violence or threats of violence, was 'appropriate'.[115]

58 The reasoning of the majority in Troja has been adopted in a number of other Australian single judge decisions concerning manslaughter,[116] including manslaughter by gross criminal negligence involving a motor car,[117] and assisted suicide,[118] without adverting to the English motor manslaughter cases.

59 In Miller v Miller the High Court was considering whether a person engaged in a joint criminal enterprise involving reckless driving owed a duty of care to his or her co-offender.[119] It was argued that to find a duty of care in those circumstances was against public policy. Whilst the context is different, the approach of the majority of the High Court to the public policy issue is of assistance, in my view.

60 French CJ, Gummow, Hayne, Kiefel and Bell JJ said:[120]

One point that emerges with complete clarity from the cases and the commentary is that the relevant principles are not identified by stopping the inquiry at the point of observing that a plaintiff has contravened the criminal law in the course of the events that the plaintiff alleges render the defendant liable to the plaintiff in tort. Nor are the principles identified by asserting, without further explanation, that public policy 'requires' that such a plaintiff have no claim. Likewise the principles are not identified by simply intoning the Latin maxim ex turpi causa non oritur actio. As Windeyer J demonstrated, in Smith v Jenkins, it is greatly to be doubted that the maxim, properly understood, has any application in tort. Its intrusion into the debate 'has caused a confusion which would not have occurred if the writers had condescended to translation and had not taken the maxim into territory where it does not belong'. In any event, reference to the maxim does not reveal the reasoning that leads to the conclusion that liability is denied. The maxim 'notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition'.

None of these observations denies that questions of public policy are presented when a plaintiff sues another for damages sustained by the plaintiff in the course of, or as a result of, some illegal conduct of the plaintiff. They are. But it is important to identify not only what are the policy considerations that are engaged, and how they are said to be engaged in the particular case, but also, and more fundamentally, why policy considerations are engaged.

These reasons will show that the central policy consideration at stake is the coherence of the law. The importance of that consideration has been remarked on in decisions of this Court. Its importance in this particular context was emphasised by the Supreme Court of Canada. It is a consideration that is important at two levels. First, the principles applied in relation to the tort of negligence must be congruent with those applied in other areas of the civil law (most notably contract and trusts).

Secondly, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant's negligence is whether there is some relevant intersection between the law that made the plaintiff's conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted.

61 The observations of the High Court in Miller are of assistance in these respects. Asserting that public policy 'requires' an outcome, without further explanation, does not articulate a legal principle. It is important not only to identify what the policy considerations are but how they are said to be engaged in the particular case and why they are engaged. Coherence of the law is central.

Conclusion as to application of the forfeiture rule to manslaughter and like offences

62 The various formulations of the 'absolute and inflexible' rule are not uniform. The trial judge held that the rule applied where the relevant act was deliberate and intentional and she doubted the need for violence. Meagher JA in Troja expressed the rule as being applicable where the death is a result of violent means. Mahoney JA in Troja said there was no difference in the rule's application between murder and manslaughter but then suggested the possible existence of 'borderline cases'. Gillard J in Soukup said there are no exceptions but then suggested the English cases which provide for exceptions are probably right.

63 Santamaria JA recognises, it seems to me, that there is no formulation of the rule which can be said to apply generally to manslaughter and similar crimes.

64 As to coherence with the criminal law, the forfeiture rule ought not to operate so as to preclude offenders whose criminality is such that they properly receive little or no punishment while not precluding offenders who commit crimes warranting substantial terms of imprisonment. The forfeiture rule should also operate in a manner which is coherent with the approach taken in other civil contexts.[121]

65 The only formulation which, in my opinion, can properly address this position, giving proper expression to the underlying public policy principle and to the need for coherence with the criminal law is one under which the nature of the particular crime determines the application of the principle. It seems to me that this approach reflects what was said, admittedly in a different context, in Miller.

66 Cases of murder are straightforward and would always result in the offender being precluded. Cases of manslaughter have to be considered on a case-by-case basis. The issue is: does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death? The issue is not determined by reference to whether the conduct is advertent or inadvertent, whether it is by violent means or by other means, whether it is behind the wheel of a car or whilst in possession of a weapon. If it is necessary to find the majority judgments in Troja were plainly wrong to reach this conclusion then in my opinion they were.

67 The deceased's will had left his entire estate to the appellant. The will provided that if she did not survive the deceased, amounts would be paid to the appellant's mother, Jeannie Elizabeth Day, and to the Peter MacCallum Cancer Institute. If the forfeiture rule prevented the appellant from taking under the will or on intestacy, the person entitled on intestacy was the deceased's daughter, Megan Edwards. Accordingly, when State Trustees issued its Originating Motion to determine how the estate should be distributed it included as defendants to the proceeding Megan Edwards, Jeannie Day and the Peter MacCallum Cancer Institute, as well as the appellant.

68 The trial judge held that, as the appellant was precluded by an inflexible rule, the estate went on intestacy to the deceased's daughter, Megan Edwards. On appeal, there was no challenge to that aspect of the trial judge's decision.

69 When the appeal was initially heard, only the appellant and State Trustees appeared and advanced submissions. The other defendants were respondents to the appeal.

70 At the trial the parties had the opportunity to lead evidence as to the appellant's culpability and they did so. At the trial, counsel for the appellant submitted that if the rule was to be applied flexibly the trial judge should look at the circumstances of the killing which he submitted included the history of violence against the appellant. He submitted that the killing was not an 'end in itself' and that it was necessary to consider whether there was 'low culpability' by reason of the history of violence perpetrated against the appellant. The trial judge's conclusion that there was an inflexible rule meant she did not need to determine that issue.

71 Ground 10 of the appeal was that the trial judge ought to have concluded that the appellant was of 'very low culpability' and that 'the forfeiture rule should not apply'. The appellant's written outline of submissions addressed this ground, but little was said on it in oral submissions.

72 Notwithstanding the fact that the issue was a ground of appeal and had been addressed in the appellant's written submissions, the Court called the parties back before it after the initial hearing to ensure that they had made all the submissions they wished to make on the disposition of the matter should the Court reach a conclusion that the forfeiture rule was not inflexible. The appellant sought the opportunity to make further written submissions on that issue and the Court gave all parties leave to file further written submissions. The appellant and Megan Edwards did so.[122]

73 The further submissions of the appellant relied upon the findings of the judge who sentenced Mrs Edwards,[123] and upon an affidavit of the appellant which had been before the trial judge,[124] in support of a submission that, if the forfeiture rule was flexible, it should not apply by reason of:

(a) the extensive history of violence inflicted by the deceased upon the appellant during the marriage;

(b) the appellant's significant history of mental illness during her marriage to the deceased, up until the time of the killing;

(c) the extensive history of violence inflicted by the deceased upon his mother and the appellant's actions in attempting to protect her from that violence; and

(d) the financial contribution by the appellant to the household from her work until she ceased working in about 2002 as a result of the deceased's abuse of her, and her contribution to looking after the deceased and the maintenance and upkeep of the matrimonial home, which is in effect the sole asset of his estate.

74 As to the history of violence inflicted on the accused, the appellant's further submissions relied upon the findings of the sentencing judge. Reliance was also placed on the appellant's affidavit, which gave an account which was consistent with the sentencing judge's findings.

75 As to the appellant's psychiatric history, reliance was placed by the appellant upon a series of medical reports which had been before the trial judge and upon the fact that the relevant aspects of the appellant's psychiatric condition had been accepted by the sentencing judge.

76 As to the circumstances of the offence, the appellant's further submissions relied upon the appellant's affidavit, not the findings of the sentencing judge.

77 The appellant's further submissions made a brief reference to the financial contribution without referring to any evidence concerning the financial contributions.

78 As to the relevance of the seven year term of imprisonment, the appellant's further submission was that the punishment already imposed upon the appellant 'should be sufficient', and that the Court should not 'punish [her] again by depriving her of her small inheritance.'

79 The further written submission on behalf of Megan Edwards, was that, notwithstanding the violent history of the deceased towards the appellant, the nature and gravity of the crime remained 'very real and ought to exclude the appellant from any benefit under the will.' In this regard the submission particularly referred to:

(a) the fact that the crime was an intentional homicide which, but for s 9AC of the Crimes Act 1958, would constitute murder;

(b) the appellant's emotional and psychological state had not been relied upon as a defence under Part 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and

(c) the implications of the crime were not limited to the termination of the life of a 'repugnant individual', as the deceased was a father and 'the killing rendered a young woman fatherless'.

80 The matters which I consider to be relevant to an assessment of criminal culpability are as follows.[125]

• The appellant brought about the violent death of the deceased using both a knife and a spear gun. A post-mortem examination revealed the deceased had sustained about 30 separate injuries inflicted with these two weapons. The sentencing judge found that some of these wounds were defensive in nature.[126]

• The appellant had suffered domestic violence at the hands of the deceased for about 12 years. Police had been repeatedly called to intervene in the years leading up to the time of the offence, with the deceased being arrested on at least one occasion. An incident in June 2010 led to the appellant obtaining an intervention order which was in force at the time of offending. The order did not prevent the appellant and the deceased continuing to live together.[127] There was also violence perpetrated by the deceased against the deceased's mother, with whom the appellant and the deceased lived for some time.[128]

• The appellant initially had falsely claimed that the deceased had been killed by intruders.

• In her interview with police two weeks after the incident the appellant said that over the prior two months the deceased had strangled, kicked and punched her. She said that the night before the offending the deceased had been up all night drinking and had been threatening to kill her. When the appellant awoke, the appellant said that the deceased had continued to physically assault her and had threatened to disfigure her and to set fire to her. The appellant said that she panicked and took hold of the deceased's spear gun and shot it at the deceased. It bounced off but the appellant said that this aggravated the deceased and he grabbed a kitchen knife and came towards her. There was then said to be a struggle in which the deceased lost his balance and fell. The appellant said that she grabbed the knife and stabbed him 'cos I was so - I was so frightened'. The sentencing judge had 'serious reservations' about the accuracy of this version of events, said that some aspects of her description could not be reconciled with the forensic evidence, and said that her account of having been attacked by the deceased with a knife and having disarmed him was 'somewhat improbable' in the circumstances of the case.[129] The account given in the appellant's affidavit was in substance the same as the account which she had given in her record of interview, as to which the sentencing judge had had 'serious reservations'.

• The appellant pleaded guilty to defensive homicide. By her plea she accepted that she intended to kill the deceased or cause him really serious injury. She also accepted that, while she believed that she was in danger of being killed or seriously injured at the time of the offending, she did not have reasonable grounds for that belief. The sentencing judge found that 'the wounds you inflicted were a disproportionate response to any threat that your husband posed to you'.[130]

• The sentencing judge found that the appellant's actions 'were in no way premeditated, but rather a spontaneous response to a perceived threat' and that the 'response seems to have been generated in highly emotional circumstances'.[131]

• The appellant had perpetrated violence against the deceased on a prior occasion. In September 2005, during an altercation between the appellant and the deceased, the appellant produced a corkscrew and a knife and stabbed the deceased four times, including to the back, neck, the rear of the head and the upper chest. The injuries required surgery. The appellant was convicted of assault occasioning actual bodily harm and was sentenced to one year nine months' imprisonment, which was wholly suspended. The sentencing judge noted that on that occasion the appellant had claimed that she had acted in self-defence. She had said that the deceased had punched her repeatedly, but she had had no visible injuries of any kind, and the sentencing judge described the claim as 'far-fetched'.[132] The sentencing judge said that this prior conviction assumed less weight than it might have otherwise because it 'seems to have arisen out of the very same circumstances that resulted in the death of the deceased'.[133]

• The appellant had, what the sentencing judge described as, a 'significant history of psychiatric illness', including two involuntary admissions for psychiatric care in the year prior to the date of offending.[134] Her first admission was in September 2010 for 'a first episode mania' in which she was described as having grandiose delusions and poor insight. Her second admission was in late November 2010 after an episode of self-harm. She was released in early December, some one-and-a-half months prior to the offending, on a community treatment order, having been diagnosed with bipolar disorder and manic depression. The appellant had been seen and assessed the day before the offending. It had been determined that the community treatment order should not be revoked and that 'she should be closely monitored over the next few days'.

• Upon arrest the appellant was regarded as unfit to be interviewed and she was detained at the Monash Medical Centre Adult Psychiatric Unit where she stayed for almost two weeks. She was diagnosed with 'schizoaffective disorder with recent depression, possibly a mixed episode' with a differential diagnosis of 'major depression without psychosis or bipolar disorder-current episode depression/mixed'. In the week prior to the offending the appellant had appeared to be in a 'bad mental state', to have 'deteriorated mentally', to be 'not coping' and to be 'acting irrationally'.[135]

81 This case is not relevantly analogous to the circumstances that arose in Evans or Keitley.

82 In Evans a woman shot her partner after he had assaulted her and her daughter, had threatened to kill the daughter, and had then fetched a gun and loaded it and placed it on a table. The woman was charged with manslaughter but the jury was discharged on the basis that the trial judge considered that having regard to all the circumstances only a nominal punishment would be imposed. The effect of the jury discharge was that the woman was acquitted. Young J held that the forfeiture rule did not apply, referring amongst other things, to the fact that the death had been caused in the course of a domestic argument 'in circumstances where there is a very minor degree of criminality'.[136]

83 In Keitley, a woman pleaded guilty to manslaughter after she shot her partner following his threats to kill her, which fell against a backdrop of a relationship 'punctuated by violence or threats of violence'. Because of her 'highly disturbed emotional state' at the time of the offending she was sentenced to a three-year community-based order. Coldrey J found that the woman had a 'markedly diminished' level of moral culpability as 'the killing had its genesis in the ongoing domestic violence' and 'occurred at a time when she was gripped by fear and she was experiencing a level of emotional turmoil engendered by the deceased's conduct which precluded rational judgment and which, to a considerable degree, appears to have clouded her actual perception of the actions undertaken by her'.[137] Coldrey J held that the forfeiture rule did not apply.

84 The relevant issue is whether the appellant's criminal culpability requires that the appellant should not take a benefit from the death. In my view it does. The appellant killed her abusive husband by inflicting 30 separate wounds on him with two different weapons. She intended to kill him or to cause him really serious injury. She believed that it was necessary to do what she did in self-defence but she did not have reasonable grounds for that belief. Important aspects of her account of what occurred could not be accepted by the sentencing judge. She initially gave a false account of what had occurred. She had been a victim of domestic violence and she was mentally unstable. All of this is reflected in the sentence of seven years' imprisonment that was imposed. This is a sad case, as many such cases are, but it is not a case of moral culpability so low as to warrant no, or almost no, criminal sanction, as was the case in both Evans and Keitley. It is closer to the position in Re Stone.

85 Contrary to the submissions of the appellant, depriving an offender of a benefit because of their criminal culpability in this context, is not an additional 'punishment'. It is the application in a particular context of the general principle that no person can obtain, or enforce, any rights resulting to them by their own crime.

86 Financial contributions by the appellant to the household may support a claim in equity but do not relevantly alter the analysis in this context. In this respect I agree with the majority in Troja.[138] If the appellant has a valid claim in equity, it will be unaffected by this decision.

87 As was submitted on behalf of Megan Edwards, the criminal culpability of the offender in this case requires that she not be entitled to benefit from the death which she caused. The forfeiture rule applies to prevent the appellant from inheriting from the estate of the deceased. The appeal must be dismissed.

88 On 11 April 2012 Jemma Elizabeth Edwards ('the appellant') pleaded guilty in the Supreme Court (Weinberg JA) to one count of defensive homicide. The maximum sentence for that offence is 20 years' imprisonment. The appellant's victim was her husband James Charles Edwards ('the deceased'). He had left a will dated 18 November 2004 ('the will'). Under the terms of his will, he bequeathed the whole of his estate to the appellant provided she survived him. He was killed on 18 January 2011. On 6 May 2011, the first respondent ('State Trustees') obtained a grant of probate of that will. State Trustees applied pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the estate. State Trustees sought directions from the Court on how to distribute the assets of the estate in circumstances where the primary

beneficiary under the will had killed the deceased. The primary judge decided that she was required to apply the 'forfeiture rule' which she understood to provide that a killer is prevented from taking a benefit brought about as a direct result of that killing.[139] Accordingly, she declared that State Trustees were required to distribute the net assets of the estate of the deceased to Megan Edwards, who was the daughter of the deceased, on the basis that she was the sole next of kin entitled to participate in the distribution of the estate under an intestacy. On 11 September 2014, the appellant filed a notice of appeal in which she contended that the trial judge had erred in holding that the forfeiture rule did not contain a discretion for the Court to grant relief from such forfeiture where the circumstances of the killing evidenced a very low moral culpability on the part of a person whose actions caused the death.[140]

89 For the reasons that follow, I would dismiss the appeal.

90 The appellant was born in Innisfail, Queensland on 10 January 1967. Her mother had described her as being a happy and vibrant person. She qualified as a nurse and worked in nursing until 2002. The appellant had a history of psychiatric illness. At various times, she had been diagnosed as suffering from anxiety and depression. On two occasions, she had been admitted to psychiatric care and had been subjected to a community treatment order.

91 The appellant met the deceased in 1997; she married him in 1998. The deceased had been married once previously. He and his first wife were divorced in 1986 following a 'turbulent relationship' that involved several instances of domestic violence.[142] There was one child of that marriage, a daughter, Megan. After they were married, the appellant and the deceased lived in various States. In 2006, they came to live permanently in Victoria.

92 In January 2011, the appellant and the deceased were living at 36 Royalty Avenue, Highett. That house had belonged to the deceased's mother. She had died in June 2010.

93 The deceased was a heavy drinker who had been described by neighbours as a 'loner' and, on occasion, as 'violent and confrontational'. There was a lengthy and well documented history of his having inflicted violence on his daughter and upon his mother. The deceased similarly inflicted violence upon the appellant. Between 1999 and 2005, police had been called to intervene in domestic disputes between the appellant and the deceased. On each such occasion, the deceased was found to be drunk, abusive and violent. There were further instances of such violence between 2006 and 2010. In June 2010, an intervention order had been taken out protecting the appellant from the deceased.

94 In September 2005, the appellant and the deceased were living in Howlong, New South Wales. There had been a dispute between them. The appellant produced a cork screw and knife and stabbed the deceased four times 'once to the left hand side of his back, once to the right hand side of his neck, once to the rear of his head, and once to the right hand side of his upper chest'.[143] Despite having claimed to have been acting in self-defence, the appellant was charged with a number of counts of assault and causing grievous bodily harm. In his Sentence Reasons Weinberg JA said: 'The police were no doubt influenced, in charging you, by the fact that despite your claim to have been punched repeatedly over a period of some 30 minutes (as well as being threatened with death) you had no visible injuries of any kind. When asked about that fact you claimed that the deceased knew karate, and therefore how to inflict blows without leaving any visible marks.'[144]

95 On 2 September 2005, the deceased had taken out an apprehended violence order against the appellant.

96 In the event, on 9 August 2006, the appellant pleaded guilty to one count of assault occasioning actual bodily harm. She was sentenced to be imprisoned for a term of one year and nine months, wholly suspended.

97 In early January 2011, the appellant went to Queensland to spend time with her mother. During the sentencing hearing, her mother gave evidence that the appellant had a large bruise on her hand which she told her mother had been caused by the deceased. Her mother observed that the deceased was 'in a bad mental state at that time'.[145]

98 On 13 January 2011, the appellant returned to Melbourne. Thereafter, she was observed to be crying, not coping and as acting irrationally. She attended a medical clinic to seek help for anxiety.

99 On the night of 17 January 2011, a neighbour overheard a serious domestic dispute taking place between the appellant and the deceased. At about 10am on the morning of 18 January 2011, another neighbour heard the appellant screaming for about five minutes. At about this time, the appellant called Ambulance Victoria and asked them to attend the premises at Highett.

100 The deceased had sustained multiple stab wounds. The appellant was present at the scene. She told police that the deceased had been killed by two male offenders, both of whom had fled the scene. The appellant was arrested but deemed unfit to be interviewed. Until 31 January 2011, she was detained at the Monash Medical Centre Adult Psychiatric Unit. On that day, she was released into police custody, and interviewed. During the course of that interview, she confessed to killing the deceased but told police she had acted in self-defence. In the course of her interview, she said:

[O]n the night before he died, he'd been up all night drinking, and umm, he'd been coming in and out of the room all night and threatening me and making me really afraid. Umm. Well, this has been going on for - really badly for the last few months. He s-, he strangled me and kicked me and umm, punched me. Done all sorts of things like that. So I was really, really concerned because he was - the last couple of nights he's been saying a lot that he's going to kill me. And umm, so he was threat-threatening me the night before, and then I - I went to sleep for a while and I was hoping that it would be over when I woke up. And when I woke up, he was still drunk. And uhh - and he punched me. And I was sitting at the chair and he pushed me off the chair and - and kicked me. And then he said that he was going to get - he was going to get some petrol and he was going to - well, first he said he was going to cut my eyes out and cut my ears off. And disfigure me. And then he said he was going to get some petrol from out the back and he was going to set me on fire and ruin my pretty face so no-one would ever look at me ever again. And I panicked. As he was storming out, I grabbed the spear gun because he'd used the spear gun on me in the past, he shot me in the stomach with it and it just bounced off, so I didn't think it would do any harm. I thought it would just stop him, because I was so petrified. And - and so I shot it, and it did bounce off, and he got really wild and angry so he grabbed a kitchen knife and came towards me with it, and I struggled with him, and he lost his balance and fell. And I grabbed the knife and I stabbed him 'cos I was so - I was so frightened. And the rest of it was just a blur. And then I realised what had happened, and I called - I called '000'. And - and then I tried to give him CPR. And then the ambulance came and when they asked me what had happened, I lied because I panicked, 'cos I was so frightened. And then I did tell the truth later on that day. But that's what happened, and I'll be - and I'm sorry it happened, but I was really afraid for my life. I'm still in shock. But it was self defence 'cos I was really, really terrified of him.

101 In his Sentence Reasons, Weinberg JA summarised the forensic evidence about the killing:[146]

The post-mortem examination revealed a number of incised injuries to the upper and lower body. Although the evidence does not reveal the precise number of wounds inflicted, it was agreed during the course of the plea that, in broad terms, the deceased had sustained about 30 or so separate injuries. Of these, about six involved significant stab wounds. A majority of the injuries were inflicted in the upper body and head area, but there were also some wounds to the legs, fingers and forearms. There was, in addition, a large ovoid wound 2 centimetres in depth to the midline of the back. That wound was suspected of having been caused by the spear that was located at the scene.

The pathologist noted that the wounds to the left side of the chest had passed through the body of the left lung, and penetrated the heart. These wounds were likely to have been inflicted by the knife found at the scene. He concluded that it was possible that a number of the wounds had been inflicted post-mortem. The deceased had a blood alcohol reading of between 0.04 and 0.07 grams per hundred millilitres.

102 The appellant was charged with murder. In the event, she pleaded guilty to one count of defensive homicide. She was sentenced to seven years' imprisonment with a non-parole period of four years and nine months.

103 The appellant made an affidavit which was filed in the present proceeding.[147] In that affidavit, she described:

(a) her family history and her marriage to the deceased;

(b) the violence inflicted by the deceased on his mother and the violence that he had inflicted upon her;

(c) the incident which occurred on 2 September 2005 when she 'stabbed the deceased four times around the back, head and chest'.

(d) a 'number of disclosures of alleged domestic violence to my medical practitioners' which she made between November 2006 and June 2009;

(e) the making of an intervention order on 7 June 2010 prohibiting the deceased from committing an act of family violence against her;

(f) violence inflicted on her by the deceased on 11 August 2010 as well as on other occasions in Queensland and on 'one of our dozen trips up and down to Melbourne' (from Queensland);

(g) her 'significant history of psychiatric illness' in which she had been diagnosed 'with anxiety and depression';

(h) her diagnosis 'as having a manic episode and being delusional' as a result of which she was treated as an involuntary patient in the Monash Medical Centre Adult Psychiatric Unit and was later subjected to a community treatment order; and

(i) her diagnosis in November 2012 'as having a relapse of bipolar disorder' for which she was treated again as an involuntary patient in the Monash Medical Centre Adult Psychiatric Unit before again being released on a community treatment order.

104 The appellant gave the following account of her killing of the deceased. She said:

On 18th January 2011 I inflicted multiple stab wounds to the upper body, right arm and the left leg of the deceased. As a consequence he died. I was arrested and subsequently assessed as unfit to be interviewed. I was then held at the Monash Medical Centre Adult Psychiatric Unit until 31st January 2011, at which point I was released into Police custody, interviewed and charged with the murder of the deceased. I confessed to the killing of the deceased and told them that it was committed in an act of self defence.

105 On 31 January 2011, the appellant was interviewed by the police. In her affidavit, she summarised the contents of her record of interview.[148] That summary included the following:

• On the night before the deceased had been up all night drinking and had been going in and out of the room all night threatening me.
• On the morning of the 18th I woke up and he was still drunk.
• The deceased assaulted me and threatened to cut my eyes out and cut off my ears and pour petrol on me.
• As the deceased stormed out I grabbed a spear gun and shot it at him and it bounced off. The deceased had previously shot me with the spear gun and it had bounced off and I did not think it would do any harm.
• After the spear bounced off him, the deceased became really wild, went to the kitchen, grabbed a knife and came at me with it.
• I struggled with the deceased, and he lost his balance.
• I go the knife from him and stabbed him because I was so frightened.
• Following the stabbing I called '000' and then tried to give the deceased CPR.
• I lied to the Police because I panicked.
• It was self-defence and I was really terrified of him.

• I did not drink at all on the Monday night.
• When I went to bed the deceased was sitting in the dining room at the table drinking.
• The deceased assaulted me by kicking me in the tailbone area and pushed me and said he was going to kill me one of these days, before I went to bed.
• When I got up in the morning the deceased was standing up, appeared to be drunk, not in control of his faculties and stumbling around.
• The deceased had threatened to pour petrol over me and set me on fire.
• I shot the deceased in the upper back with the spear gun when he was on his way to the back door and was near the kitchen.
• The deceased went crazy, grabbed the knife from the kitchen bench and came at me.
• I wrested the knife off him and stabbed him but cannot recall how I got it out of his hands or any of the specific details of the stabbing.

106 Defensive homicide was a statutory offence.[149] It was introduced as an amendment to the Crimes Act 1958 by the Crimes (Homicide) Act 2005. Section 9AC of the Crimes Act 1958 provided:

9AC. Murder - 'self-defence'

A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.

Note 1 See section 4 for alternative verdict of defensive homicide where the accused had no reasonable grounds for the belief.

Note 2 This section does not apply where the response is to lawful conduct - see section 9AF.

Note 3 See section 9AH as to belief in circumstances where family violence is alleged.

107 Section 9AD provided:

9AD. Defensive homicide

A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.

Note See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged.

108 The effect of s 9AC and s 9AD is not easy to determine. Perhaps, this much can be said. A person who would otherwise be guilty of murder is not guilty of murder if the lethal conduct was carried out where the person believed, and had reasonable grounds to believe, that the conduct was 'necessary to defend himself or herself or another person from the infliction of death or really serious injury'. Where the defendant has that belief but there are no reasonable grounds for it, he or she will be guilty of defensive homicide. In the present case, the appellant pleaded guilty to defensive homicide. Accordingly, the appellant must be taken: (a) to have caused the death of the deceased; (b) to have intended to cause his death or to cause him really serious injury; and (c) to hold the belief (in respect of which she was convicted) that what she was doing was necessary to defend herself, though she did not have a reasonable basis for that belief. In sentencing her, Weinberg JA said: 'Of course, your plea of guilty means that you acknowledge that you intended to kill him, or at least to cause him really serious injury, at the time'.[150]

Evidence Act: Certificate of Conviction

109 It will be noticed that the appellant's affidavit includes extracts from her record of interview which were exculpatory. If they were to be believed in these proceedings, the Court might have come to the conclusion that she had believed her conduct necessary to defend herself from the infliction of death or very serious injury and that she had a reasonable basis for that belief.

110 However, the evidence adduced before the trial judge included the Sentence Reasons.[151]

111 The evidence before the trial judge included a certificate given under s 178 of the Evidence Act 2008.

112 Part 3.5 of the Evidence Act 2008 is entitled 'Evidence of Judgments and Convictions'. Section 91(1) provides that evidence of the decision or of finding of fact in an Australian proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. Section 92 contains exceptions to s 91(1). Section 92(2) provides that, in a civil proceeding, s 91(1), which restricts the use to which evidence of decision may be put, does not apply to evidence of a conviction. Accordingly, evidence of a conviction may be adduced not only to prove the fact of the conviction, but also to prove the elements of the offence for which person was convicted. Section 178 provides that evidence of a conviction may be given by certificate; s 178(2). It provides:

(2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court -

(a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question; and

(b) stating the time and place of the conviction, acquittal, sentence, order or proceeding; and

(c) stating the title of the applicable court.

113 In the proceedings of the trial judge, a copy of the certificate of conviction of the appellant was exhibited to the affidavit of Sarah Elizabeth Gittus affirmed 29 April 2014.[152]

114 In The Prothonotary of the Supreme Court of New South Wales v Sukkar,[153] Hodgson JA (with whom Tobias JA agreed) said:[154]

The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss 91 and 92, Gonzales v Claridades. The detailed facts set out in the Court of Criminal Appeal's judgment R v Sukkar [2005] NSWCCA 54 may have some relevance to the opponent's reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted.

115 In Prothonotary of the Supreme Court of New South Wales v Livanes, McColl JA (with whom Campbell and Meagher JJA agreed) said:[155]

The certificate of conviction is evidence of the particular offences in respect of which the opponent was convicted and of the sentences passed upon him as well as of the particulars of the offences: s 178(3) and (5) Evidence Act. However the sentencing remarks are in a different category. [McColl JA then referred to The Prothonotary of the Supreme Court of New South Wales v Sukkar].

116 Accordingly, it was open to the trial judge to rely upon all the material that was placed before her including the Sentence Reasons as well as the certificate of conviction given under s 178(2) of the Evidence Act 2008. Even if no regard is paid to the propositions of fact contained in the Sentence Reasons, there was evidence before the trial judge, upon the filing of the certificate, that the appellant had satisfied each of the elements of the crime of defensive homicide. Notwithstanding the exculpatory contents of the appellant's affidavit, the trial judge accepted the evidence contained in the certificate.

117 The notice of appeal does not seek to impeach any of the findings of the trial judge as to the facts and circumstances whereby the appellant killed the deceased.

118 The deceased left a will dated 18 November 2004. The relevant provisions of the will were as follows:

1. I GIVE AND DEVISE the whole of my Estate to Jemma. IF Jemma does not survive me the following provisions shall apply.
2. I GIVE DEVISE AND BEQUEATH my residuary Estate to my Trustee UPON TRUST to:

(a) pay the sum of SEVENTY THOUSAND DOLLARS ($70,000.00) to my mother-in-law JEANNIE ELIZABETH DAY ('Jeannie') and, if she has predeceased me at the date of my death or dies within thirty (30) days of the date of my death to my brother-in-law CHRISTOPHER DAY.

(b) Pay the balance to my mother MARGARET CLARE EDWARDS and, if she has predeceased me at the date of my death or dies within thirty (30) days of the date of my death to:

(i) Pay the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) to Jeannie.

(ii) Pay the balance to the Peter MacCallum Cancer Institute to be used for cancer prevention, cancer education or patient care and treatment at or any purpose connected with the Institute, for which the receipt of the Treasurer or other officer shall be sufficient discharge to my Executor for the bequest.

119 The mother of the deceased, who was referred to in clause 4(b) of the will had predeceased the deceased. Therefore, if the gift-over provisions in clause 4 were to operate, the distribution of the estate would be:

(a) $70,000 to Jeannie Day pursuant to clause 4(a);

(b) $100,000 to Jeannie Day pursuant to clause 4(b)(i);

(c) the balance of the estate to Peter MacCallum Cancer Institute pursuant to clause 4(b)(ii).

120 However, as the appellant survived the deceased, the estate would pass to her pursuant to clause 3 unless the 'forfeiture rule' applied to prevent her, as the killer of the deceased, from taking a benefit under the deceased's will.

121 Overall, the trial judge held that the forfeiture rule was a rule of law. It was absolute and inflexible and applied in all cases of murder or manslaughter or of homicides relevantly analogous to them. She determined that the Court did not have any discretion as to the application of the rule. She rejected a submission that the rule was equitable in nature.

122 The trial judge began by outlining the submissions which were made to her. She then described the development of the forfeiture rule and what she described as the 'negligent manslaughter cases' in which the rule had 'not been applied'.[156] She also discussed those Australian cases which had adopted a discretionary approach to the rule: Public Trustee v Evans,[157] Public Trustee v Fraser,[158] Re Keitley,[159] and the dissenting judgment of Kirby P in Troja v Troja.[160] She then discussed the majority judgments of Mahoney and Meagher JJA in Troja and, finally, the case of In the matter of the Estate of Soukup[161] in which Gillard J had refused to follow the decision of Coldrey J in Keitley. Having reviewed these authorities, the trial judge said:[162]

In my view, the modern forfeiture rule is an instantiation of the wider principle of public policy that a person shall not be allowed to profit from her crime. It is an expression of the legal maxim ex turpi causa non oritur actio. I adopt the statement of principle in Beresford v Royal Insurance Co Ltd, where Lord Wright MR said:

The principle has been applied not only in the authorities quoted above but also in many decisions dealing with varied states of fact and applications of the same or similar principle. These are all illustrations of the maxim ex turpi causa non oritur actio.

In the more specific context of homicide, the rule is based on the abhorrence that one may benefit from killing another person. That principle is accepted as the basis of the rule in the foundational case of Cleaver, in Amicable Society for a Perpetual Life Assurance Office v Bolland, by the High Court in Helton v Allen, by the majority in Troja, and by Gillard J in Re Soukup. As discussed previously, the principle underpins rules in various areas of law.

Indeed, the forfeiture rule is not so much a rule but a collection of rules based upon a general principle of public policy. I agree with Mahoney JA that the rule is a creature of neither equity nor the common law, but that applications of the principle may be found in the doctrines of each. The difficulty lies not in the rationale of the rule but rather in its application.

In my view, the statements of the general principle contained in the judgments in Evans, Fraser, Re Keitley and Miliankos, and of Kirby P in Troja, should not be followed for two reasons. First, I consider that the way the notion of public policy is used in those judgments is based on a misapprehension of the underlying principle. Secondly, I consider that the importation of equitable concepts and the language of unconscionability in this sphere is unwarranted.

123 The trial judge held, the rule was based on a principle of public policy: 'the abhorrence of the notion that one may profit from killing another'.[163] However, it did not follow from the fact that the rule was based on 'public policy' that it was open to be modified by an individual judge to accord with what that judge might think is fair in all the circumstances of the particular case.[164] Neither hardship on the defendant nor low moral culpability provided a basis upon which to relieve a killer from the application of the rule.[165] The trial judge dismissed a submission that the rule was equitable in nature; as a result, no discretion as to its application arose as a corollary of its having an equitable nature.[166]

124 Further, the trial judge considered that she was bound by Troja which stood as authority for the proposition 'that the forfeiture rule is "absolute and inflexible" in its application to "felonious" killings, which I take here to refer to murder and manslaughter"'.[167] She said:[168]

In my view, Troja and Re Soukup are clear authorities for the proposition that the forfeiture rule will apply in all cases of voluntary manslaughter, viz, where the elements of murder are present, but for some reason the culpability of the offender is reduced. The rule laid down in the Australian authorities therefore appears to be that, at the least, a person who kills another person by a deliberate and unlawful act forfeits any benefit arising as a direct result of that act.

125 Finally, the trial judge referred to the circumstances in which the appellant had killed the deceased. She had killed him 'deliberately and with an intention to kill him, or at least cause him really serious injury'.[169] But for her genuine (yet unreasonable) belief that killing the deceased was necessary to defend herself, the killing would have constituted murder. She considered she had no discretion to grant relief from forfeiture on the basis of the appellant's 'tragic circumstances and very low moral culpability'.[170] She held that the appellant had forfeited her interest in the deceased's estate.[171]

126 Thereafter, the trial judge considered various submissions as to the orders that she should make given that the appellant had been excluded from receiving any benefit under the will. In the event, she ordered that the executor be required to distribute the net assets of the estate to Megan Edwards on the basis that she was the sole next of kin entitled to participate in the distribution of the estate under an intestacy.

127 The appellant contended that the trial judge had erred in holding that the forfeiture rule was absolute and inflexible and did not contain a discretion for the Court to grant relief from such forfeiture where the circumstances of the killing evidenced very low moral culpability on the part of the person whose actions caused the death. She contended that the forfeiture rule was based on the public policy consideration that a person should not be allowed to profit from his or her crime but that such public policy was not static and was subject to changes in community standards and circumstances so that the rule may be applied flexibly in matters where there was low moral culpability. The appellant said that the trial judge had wrongly concluded that she should follow Troja and that she should have followed Keitley, Miliankos v Miliankos,[172] and the dissenting judgment of Kirby P in Troja and should have held that the Court has a discretion to grant relief from the application of the rule 'depending on the low moral culpability of the person who causes the killing'. Finally, the appellant said that the trial judge had erred in holding that there was no distinction between defensive homicide and manslaughter for the purposes of the application of the rule.[173]

128 The appellant defined the forfeiture rule as the general principle of law that excludes a person who has unlawfully killed another, where that death was a material factor in a vesting of a benefit in favour of that person, from taking a benefit as a consequence of the killing. She said that the primary issue in the appeal was whether the forfeiture rule:

(a) is an absolute, inflexible rule, covering all cases of unlawful killing, and thereby avoiding any inquiry into the moral culpability of the killing; or, alternatively,

(b) is a flexible rule and there are cases where the circumstances of the killing should be taken into account when considering the application of the forfeiture rule.

129 There was authority that the rule is a rule of law which must be applied inflexibly without regard to the factual circumstances of the case. She referred to Troja, and Soukup. There was other authority that characterised the forfeiture rule 'as a principle of equity or equitable doctrine and held that a court has a discretion to relieve a person from the application of the forfeiture rule'. On that line of authority, the Court has a discretion to consider the circumstances of the killing and to determine whether it would be in accordance with good conscience to allow the person who caused the death to obtain a benefit in the circumstances. She referred to the dissenting judgment of Kirby P in Troja and to Keitley, Miliankos, Evans and Fraser.

130 The appellant said that 'as the forfeiture rule is based upon public policy and equitable principles, a court ought to be able to consider whether the forfeiture rule should be applied where there is low moral culpability. Moral culpability in this context means the degree of blameworthiness that can be attributed to their actions in committing the unlawful killing'. She said that the Court should have followed the dissenting judgment of Kirby P in Troja and followed the flexible approach in cases such as Keitley, Miliankos, Evans, and Fraser. She said that Troja was not binding in Victoria and should not be followed. She said that it 'does not justly and equitably apply the underlying policy reason for the rule and the equitable principles that govern the exercise of the courts' discretion in respect of the application of the rule'. In Stevens v Keogh,[174] Dixon J had said: 'Notions of public policy are not fixed but vary according to the state and development of society and conditions of life in a community.'[175] She contended that, given that many jurisdictions had passed laws providing for a flexible approach to the application of the forfeiture rule, it could no longer be said that public policy mandated an inflexible approach. Rather, the flexible line of authority identified in the cases she cited better reflected society's public policy. She said that the Court 'may assess the relationship between the deceased, the circumstances of the killing, the degree of seriousness of the conduct of the assailant and the level of moral culpability, as the approach more accurately represents our society's moral values and perception of the merits of this issue'.

131 The appellant said that there had been no decision from any court where a person convicted under s 9AD Crimes (Homicide) Act 2005 has forfeited his or her interest in the deceased estate. The legislation was in response to the realisation that homicides by battered wives and domestic partners occurring in the context of continuing family violence should fall within a special category of homicides and should be dealt with under a different criminal category. This created a new crime of 'Defensive Homicide'. The new crime of defensive homicide is not identical to manslaughter.

132 The appellant said that the forfeiture rule is not rigid but must compete with other principles current in society. In the present case, its inflexible application would mean that she was being punished twice: first, by imprisonment and secondly by deprivation of the testamentary benefit to which she was otherwise entitled. Such a consequence offends society's idea of justice which now has a better understanding of domestic violence perpetrated against women. In so far as the rule was created by judges, it could be abolished or varied by judges without requiring parliamentary intervention.

133 Finally, the appellant said that her moral culpability was low. She referred to matters set out in the Sentence Reasons including (a) her own psychiatric illness and (b) the long period during which she had been subjected to continual domestic violence perpetrated on her by her husband. Given the circumstances in which she killed her husband, it could not be said that the human mind was revolted by the idea that she should receive a testamentary disposition under his will.[176]

134 State Trustees Limited submitted that the forfeiture rule is a rule based on a principle of public policy, and it is flexible in its application. Fundamental to the rule was the principle that 'a person who causes the death of another by an unlawful act should forfeit any entitlement to a distribution from the deceased's estate, and any other benefit arising as a result of the death'. Flexibility is necessary and the cases recognise that there are some limited and exceptional cases where the person who caused the death should not suffer forfeiture. As the rule was one of public policy, it should be responsive to current community views and not regarded as immutable or incapable of refinement with the passage of time.[177] Flexibility could be achieved in two ways:

(a) by defining and limiting the type of unlawful conduct which will bring about the forfeiture; or

(b) by declaring that any unlawful conduct which causes death will, prima facie, bring about the forfeiture, but recognizing that the Court has jurisdiction to grant relief against the forfeiture in appropriate exceptional cases.

State Trustees submitted that the latter was the correct approach.

135 State Trustees said that Helton v Allen[178] did not decide the point and that Troja[179] should not be followed. An inflexible application of the rule 'could bring about inappropriate results in some cases, for example: deaths arising from negligent or inadvertent acts; deaths involving domestic violence; mercy killings; assisted suicides and suicide pacts; culpable driving or careless or dangerous driving causing death; and careless use of weapons causing death.' The Trustees analysed the principal cases including Gray v Barr,[180] Evans, Fraser, Keitley, Troja, Soukup and Dunbar v Plant.[181] It said that the effect of the cases was that it may not be appropriate in every case of an unlawful killing that the person who kills the deceased should forfeit any entitlement to benefit from this state. It said that the cases dealt with the problem in three ways:

(a) by deciding that the forfeiture should apply rigidly in every case and without exception;

(i) Mahoney and Meagher JJA in Troja; Mummery LJ in Dunbar;

(b) by qualifying the circumstances which will bring the forfeiture into operation; so that

(i) the forfeiture will operate only where the person was guilty of deliberate intentional and unlawful violence or threats of violence; Gray; Soukup;[182]

(ii) it will not operate in the case of criminally causing death by driving, or to inadvertent acts

(c) by recognizing that the principle (whether it be derived from a rule of public policy, or recognized as a rule of law or equity), allows a curial discretion to relieve against the forfeiture where

(i) the killing occurred in the context of domestic violence; Evans; Keitley; and/or,

(ii) an examination of the circumstances leads to a favourable evaluation of the killer's moral culpability; Fraser; Kirby P in Troja.

136 State Trustees said that 'the difficulty can be addressed by holding that the rule applies rigidly, without exception. Or it can be addressed limiting the scope of operation of the rule. Thus, an unlawful killing which is not deliberate and intentional might not attract the operation of the forfeiture in the first place. Or instead, it can be addressed by recognizing that any unlawful killing will prima facie bring about forfeiture of any entitlement arising from the death in the hands of the person who killed the deceased, but subject to the discretion of the Court to grant relief against that forfeiture.'

137 State Trustees said that the trial judge had erred in her analysis of public policy in so far as she held that in the present case it had to be applied in a fixed and inflexible manner in every case of a death being caused by an unlawful act. It submitted that public policy had changed and that the rule should be applied by judges 'attuned to contemporary views and values of society'. It said that this could be best achieved 'not by trying to define in advance the circumstances in which the forfeiture will, and will not, apply, but by recognising that every killing arising from unlawful actions prima facie brings the forfeiture into operation, and ameliorating this by allowing the Court the discretion to relieve against the forfeiture in appropriate cases'.

138 Megan Edwards submitted that the trial judge was 'correct in holding that the rule that a person who kills another by a deliberate and unlawful act forfeits any benefit arising as a direct result of that act (the forfeiture rule) ought to be applied strictly and not on a discretionary basis' and that the flexible approach has been rejected by the majority in Troja, Soukup and in Dunbar. She submitted that although the trial judge and Gillard J in Soukup doubted the forfeiture rule applied to inadvertent or accidental manslaughter, this was of no present relevance as the appellant's offending was, 'on any assessment, deliberate and intentional'.

139 Megan Edwards said that the rule expresses the public policy that criminal activity is never acceptable, in particular unlawful killing, and that one must not benefit from a killing which is unlawful. Where an unlawful killing occurs against a backdrop of domestic violence, she submitted that public policy demands that the victim avail themselves of the public apparatus developed to deal with domestic violence, particularly the criminal law and civil remedies such as intervention orders. To the extent that public policy needs to respond better to the scourge of domestic violence, 'dislodging' of the forfeiture rule is not the appropriate vehicle.

140 Megan Edwards submitted that the reasoning in Helton, although obiter, was 'seriously considered dicta' of the High Court and should be 'weighed heavily in the balance', and that the reasoning of the majority in Troja cannot be said to be 'plainly wrong'. Any divergence from the principles set out in Troja is a matter for the legislature.

141 Neither Jeannie Day nor the Peter MacCallum Cancer Institute made submissions on the appeal.

142 In the light of these contentions, the issues before the Court may be framed as follows. On the one hand, is the forfeiture rule inflexible in its operation provided the circumstances in which it applies can be identified? Or, alternatively is it the case that the rule should have a prima facie application with the Court retaining a discretion in every case not to apply it? It is possible that the appellant could succeed on either of these bases. First, she could succeed on the basis that the rule does not extend to cases of defensive homicide or, more particularly, to the circumstances in which she killed the deceased. Secondly, she could succeed on the basis that, even if the rule does apply in cases of defensive homicide, the Court retains a discretion not to apply it to her in this case given her 'low moral culpability'.

143 In Helton, a testatrix had died of poisoning. Helton, who was the executor of and principal beneficiary under her will, had been indicted for her murder. He was acquitted. However, the mother of the testatrix, who was entitled to take on intestacy, brought proceedings for the purpose of establishing that Helton had unlawfully killed her daughter and was disabled from occupying the office of executor or taking under the will. By counterclaim, Helton propounded the will in solemn form. The question was tried with a jury. The jury found that Helton had unlawfully killed the testatrix. In its judgment, the Court pronounced for the validity of the will but declared that Helton was not entitled to hold or enforce any right under the will and that any right or benefit which, but for the judgment would have passed to him under the will, was to pass to the person or persons who would have been entitled thereto if there had been a lapse of his interest under the will.[183] Helton's appeal to the Full Court of the Supreme Court of Queensland was dismissed.[184] He appealed to the High Court which held that the jury's verdict in the criminal trial did not conclude the issue whether he had unlawfully killed the testatrix.[185] On the contrary, that verdict was not even admissible as an evidentiary fact upon the issue.[186] However, his appeal to the High Court was allowed on the basis that there had been a misdirection to the jury on the standard of persuasion that should be applied.

144 In the course of their judgment, Dixon, Evatt and McTiernan JJ described the forfeiture rule. They said:[187]

But Helton relies upon his acquittal of the charge of murder in the Criminal Court as an answer to the application of the rule excluding a homicide from any benefit under the will or intestacy of the person who died at his hands. The rule is one of recent development. Its earliest appearance in any form may be said to be Fauntleroy's Case, or the Amicable Society v Bolland. In Prince of Wales &c Association Co v Palmer it appeared that Palmer, the poisoner, had effected insurances upon his victims with the intention of defrauding, and the rule disqualifying a homicide from claiming under the will or intestacy of his victim, or by reason of his death, was scarcely in point. Its first clear formulation was left to Cleaver's Case, which arose out of the conviction of Mrs Maybrick. It is placed upon a principle of public policy, and it was said that no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person (per Fry LJ). In In the Estate of Hall the doctrine was finally established and held to include not only murder but manslaughter. There Hamilton LJ said that the principle could only be expressed in the wide form: 'It is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter'. See, further, In re Sigsworth and Beresford v Royal Insurance Co Ltd.

145 In Farah Constructions Pty Ltd v Say-Dee Pty Ltd,[188] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ admonished intermediate courts of appeal not to depart from 'long-established authority and seriously considered dicta of a majority of this Court'.[189] In my opinion, what was said in Helton answers the description of 'seriously considered dicta' and binds this Court. It is true that the forfeiture rule did not strictly form part of the ratio of the case. However, the Court treated the existence of the rule as axiomatic; it did not conceive of the Court having a discretion in the matter.[190]

146 In Troja, the Court (Kirby P dissenting) treated the rule as having been axiomatic to the decision of the majority in Helton. Kirby P proposed that the rule be reformulated on the basis that expressed the application of equitable principles which denied persons from gaining benefits from their own morally culpable conduct.

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.

148 In South Tweed Heads Rugby League Football Club Ltd v Cole,[192] the New South Wales Court of Appeal decided that, save in exceptional circumstances, no duty of care is owed by the licensee of club premises to an adult person who is served alcohol by that licensee when that person is, or thereby becomes, intoxicated and subsequently suffers injury contributed to by that intoxication.[193] A similar question arose in the Supreme Court of Tasmania. The trial judge held that the death of the deceased was not the result of actionable negligence on the part either of the proprietor or the licensee of the relevant hotel. In doing so, he followed the decision of the New South Wales Court of Appeal.[194] There was an appeal to the Full Court of the Supreme Court of Tasmania which allowed the appeal and ordered judgment in favour of the defendants be set aside.[195] The plaintiffs appealed to the High Court. The High Court was critical of the approach of the Full Court to the authority of the New South Wales Court of Appeal. In CAL No 14 Pty Ltd v Motor Accidents Insurance Board,[196] Gummow, Heydon and Crennan JJ said in a passage with which Hayne J expressly agreed:[197]

In contrast, the Full Court majority did not say whether it thought the decision of the New South Wales Court of Appeal in Cole's case was plainly wrong, but it did not follow it. It distinguished it. This was a legitimate course to take, and consistent with the New South Wales Court of Appeal's approach, if the Full Court majority regarded the present case as 'exceptional'. Counsel for the Board and Mrs Scott submitted to the Full Court, as they also submitted to this Court, that the present case was exceptional, and that [the trial judge] had erred in not finding that it was exceptional. The Full Court majority did not in terms describe the case as exceptional. Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the New South Wales Court of Appeal was plainly wrong, it was its duty to follow the New South Wales Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the New South Wales Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the New South Wales Court of Appeal. If these appeals had not been brought, there would have been an undesirable disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best the Full Court decision would have generated confusion. At worst it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants.

149 Accordingly, the question becomes whether the holding in Troja that the forfeiture rule is, in truth, a 'rule' and not a matter of judicial discretion can be relevantly distinguished and, if not, whether it was plainly wrong. For the reasons given below, in my opinion Troja cannot be relevantly distinguished and, with respect, I am not persuaded that the decision of the majority was plainly wrong.

150 Some preliminary observations may be made before reviewing the cases. First, the application of the forfeiture rule does not depend upon the nature of the verdict in the criminal trial. The rule was applied in Helton and in Gray despite the fact that in each of those cases the defendant was acquitted in the relevant criminal trial.[198] Secondly, while the effect of the rule has been clear, the scope of its application has been less certain. It has always applied in cases of murder; it has been applied in some forms of manslaughter, but not others. Thirdly, different explanations have been given of the public policy that underpins the rule. Fourthly, in those jurisdictions where legislation has been enacted dealing with it, the forfeiture rule has not been abolished. Rather, jurisdiction has been conferred upon courts to modify its operation. While it is still necessary to determine if the rule applies, judicial attention has tended to shift to the statutory discretion with the result that the determination of the scope of the rule has become less urgent.[199] Fifthly, care must be taken to distinguish rights which may have accrued to a beneficiary under a will from those that might have accrued before the death of the testator. For example, a wife may have built up equity in the property of the marriage before the death of her husband.[200] Finally, it is always necessary to distinguish the legal principle expressed in the forfeiture rule from the application of it. The rule may apply to prevent a named beneficiary from taking his entitlement under a will. But, that may leave unresolved how the rule should be applied. Does the court proceed as if the will contained no reference to the disqualified beneficiary? Or, should the will be read as requiring the named beneficiary to hold his interest on trust for other beneficiaries or, perhaps, for those entitled on an intestacy?[201]

151 In Cleaver v Mutual Reserve Fund Life Association,[202] it was held that the executors of a person who had effected an insurance on his life for the benefit of his wife could maintain an action on the policy despite the fact that the death of the insured was caused by the felonious act of his wife. However, a rule of public policy prevented them from claiming any benefit for her under the policy. As Fry LJ said:[203]

The principle of public policy invoked is in my opinion rightly asserted. 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. If no action can arise from fraud, it seems impossible to suppose that it can arise from felony or misdemeanour ... This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.

152 In In the Estate of Crippen,[204] the testator had been found guilty of the wilful murder of his wife who died intestate. He was sentenced to death. After his appeal was dismissed and the verdict and sentence were affirmed, he made his own will appointing a third party as executrix and universal legatee. Thereafter, he was executed for the murder of his wife. An application was made by relatives of the wife to be granted administration of her estate in place of the legal personal representative of the husband who would have otherwise been entitled to the grant of administration. In acceding to the application, the President of the Probate Division,[205] said:[206]

It is clear that the law is, 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.

153 In In the Estate of Hall,[207] the testator had executed three wills under which his wife would take the whole of the estate under one of the wills and half of the estate under the second. His wife was convicted of the manslaughter of her husband; she unsuccessfully appealed against her conviction. The executor of the will commenced an action in which he propounded the will. The wife was joined as a defendant to the action. The executor took out a summons to have the wife dismissed from the action on the ground that, as she had been convicted of the manslaughter of the testator, she could take no beneficial interest under his will. The Registrar dismissed the wife from the action. She appealed. It was contended that the proposition of law extracted in the above paragraph was 'far too wide and cannot be supported'.[208] In dismissing her appeal, the Court held that the rule applied to manslaughter as well as to murder. Cozens-Hardy MR said:[209]

It was a case of felony and I see no reason to draw a distinction between murder and manslaughter in a case like this.

It is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter ... The distinction seems to me either to rely unduly upon legal classification, or else to encourage what, I am sure, would be very noxious - a sentimental speculation as to the motives and degree of moral guilt of a person who has been justly convicted and sent to prison.

The report of the case does not describe in any detail the circumstances in which the wife had killed her husband. These are to be found in the judgments of Lord Denning MR and Salmon LJ in Gray.[211] As Salmon LJ said in Gray:[212]

Hall's case may seem to be an authority for the proposition that anyone who has committed manslaughter, in any circumstances, is necessarily under the same disability as if he had committed murder. The facts however are not stated in the report and they are of vital importance in order to understand the decision. They have now been ascertained from the record. A man named Julian Hall kept a woman named Jeannie Baxter and had made a will in her favour. They had had many quarrels. He had promised to marry her but had not done so. On April 13, 1913, she took his revolver and, whilst he was in bed, shot him dead with four or five shots. She was acquitted of murder but convicted of manslaughter. It is small wonder that the court held that, on grounds of public policy, she could not take under Hall's will. The only surprising thing about the case is that she was acquitted of murder, apparently for no reason - except, perhaps, that she was defended by Mr Marshall Hall.

154 However, the forfeiture rule has not been applied in all cases of manslaughter. The English courts have developed a category of cases referred to as 'motor manslaughter' in which it does not apply.[213] As pointed out in the judgment of the Court of Appeal in Beresford v Royal Insurance Company Ltd:[214]

The principle has been applied not only in the authorities quoted above but also in many decisions dealing with varied states of fact and applications of the same or similar principle. These are all illustrations of the maxim ex turpi causa non oritur actio. The maxim itself, notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition. In these days there are many statutory offences which are the subject of the criminal law, and in that sense are crimes, but which would, it seems, afford no moral justification for a Court to apply the maxim. There are likewise some crimes of inadvertence which, it is true, involve mens rea in the legal sense but are not deliberate or, as people would say, intentional. Thus in Tinline v White Cross Insurance Association and James v British General Insurance Co, both cases of motor-car manslaughter, the judges held that policies against third-party liability were enforceable.

155 In Gray, Salmon LJ referred to the 'motor manslaughter' cases and said that they 'may be sui generis'.[215] Those cases may need to be reconsidered given the change in public policy over the last few decades to the circumstances in which people are killed by the drivers of motor vehicles. See, for example, the offences provided for in Division 9 of Part 1 of the Crimes Act 1958 including, in particular, 'culpable driving causing death': s 318(1). However, the present case does not provide an appropriate occasion to reconsider those cases.

156 In Rasmanis v Jurewitsch, Jacobs JA (with whom Wallace P and Mason JA agreed) held that where one joint tenant had feloniously killed the other, the survivor would hold the title on trust for himself and for the estate of the dead joint tenant in equal shares as tenants in common.[216] He said:[217]

... I think that the primary rule to be enforced is that the felon must not be allowed to retain any benefit flowing to him from the slaying and that he is required to hold any such benefit which flows at law upon trust for someone other than himself.

157 In Gray, Salmon LJ recognised that manslaughter 'is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence'.[218] In that case, Barr, armed with a shotgun, had entered into Gray's home in search of his wife with whom Gray was having an affair. As he approached Gray, Barr fired a shot into the ceiling to frighten him. A struggle ensued, the shotgun was discharged and Gray was killed. At his criminal trial, Barr was acquitted of both murder and manslaughter. The personal representatives of Gray claimed damages from Barr for unlawfully and negligently causing Gray's death. Barr sought an indemnity from his insurer under a policy that indemnified him against all such claims. Geoffrey Lane J was the trial judge. He held that Barr's claim under the insurance policy was barred by public policy. He said:[219]

The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity.

The Court of Appeal dismissed Gray's appeal. Lord Denning MR distinguished the 'motor manslaughter' cases and said:[220]

But, in the category which is here in question, it is different. If his conduct is wilful and culpable, he is not entitled to recover.

Lord Denning MR accepted the statement of principle of Geoffrey Lane J extracted above. Salmon LJ said:[221]

Crimes of violence, particularly when committed with loaded guns, are amongst the worst curses of this age. It is very much in the public interest that they should be deterred. A man, covered by a 'hearth and home' policy such as the present, walks into a bank with a loaded gun. He intends only to frighten and not to shoot the cashier. He slips and accidentally shoots a customer standing by the counter. It would be strange indeed if he could enforce the policy in respect of his liability to that customer. Once you threaten violence with a loaded gun and it goes off it is so easy to plead accident. Evidently it is very difficult for the prosecution to prove the contrary. Although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun should be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted. I do not intend to lay down any wider proposition. In particular, I am not deciding that a man who has committed manslaughter would, in any circumstances, be prevented from enforcing a contract of indemnity in respect of any liability he may have incurred for causing death or from inheriting under a will or upon the intestacy of anyone whom he has killed. Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts.... The cases of Tinline and James, in which it was held that persons convicted of manslaughter for reckless and drunken driving could nevertheless recover indemnity from their insurers, were doubted in Haseldine v Hosken but approved by this court in Marles v Philip Trant & Sons Ltd. It seems now to be settled law that a motorist can rely on his policy of insurance to indemnify him in respect of his liability for any injuries which he has caused otherwise than on purpose: Hardy v Motor Insurers' Bureau. These road traffic cases may be sui generis. In any event, although motor cars have sometimes been called lethal weapons, these cases are not in my view akin to the cases in which injuries are caused in the course of unlawfully threatening a man with a loaded gun. Public policy is not static. Even if the crime of suicide had not been abolished by statute, it may be that today Beresford's case would have been differently decided. In any event, threatening violence with a loaded gun would, I am sure, now be generally regarded as much more shocking and necessary to be deterred than what the unfortunate Major Rowlandson did in Beresford's case. I am confident that, in any civilised society, public policy requires that anyone who inflicts injuries in the course of such an act shall not be allowed to use the courts of justice for the purpose of enforcing any contract of indemnity in respect of his liability in damages for causing injury by accident.

As Lord Denning M.R. and Salmon L.J. have said manslaughter varies from conduct which is almost murder to conduct which is only criminal in the technical sense. It would be foolish to attempt to lay down any general rule. It is wiser I think to confine decision to the facts in this case.

In an age of violence - an age where the use of firearms is all too frequent - it would I think be very odd if a man who had had in his hands a loaded shotgun from which a shot had been fired and had killed another at a time when he had just assaulted that other with the gun could recover on an insurance policy which protected him from liability if he was negligent in the use of the shotgun. This was in fact a grave case of manslaughter and in my judgment the judge was right in saying that the defendant could not recover against the Prudential on the grounds of public policy.

158 Accordingly, Geoffrey Lane J and Lord Denning MR considered the rule applied where the person seeking indemnity 'was guilty of deliberate, intentional and unlawful violence or threats of violence'; where the conduct of the person was 'wilful and culpable', he or she was not entitled to recover. Similarly, Salmon LJ considered that public policy required that 'no one who threatens unlawful violence with a loaded gun shall be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted.' And, Phillimore LJ thought the rule would apply 'if a man who had had in his hands a loaded shotgun from which a shot had been fired and killed another at a time when he had just assaulted that other with the gun'. Each of the judges confined his statement of the rule to the facts that were before him; each prescinded from a broader statement of the rule.

159 In 1982, the Forfeiture Act 1982 (Eng) was enacted. The Act did not itself abolish the forfeiture rule; rather it conferred upon English Courts a discretion to modify its effect. As indicated above, it remained necessary for English judges to determine the scope of the rule and whether it applied in any particular case. However, the discretion to modify the rule has meant that the need to define its scope and application has become less urgent.

160 In In re K,[223] Vinelott J decided the first application under the Forfeiture Act 1982 that had come before the Court. In that case, the deceased was killed by the discharge at short range of one barrel of a 12 bore shotgun held by his wife. She was charged with murder. At trial, the charge was not pressed and she pleaded guilty to the lesser charge of manslaughter. She was placed on probation for two years. The evidence indicated that the deceased had suffered from paranoid schizophrenia and that his wife had been a victim of her husband's violent attacks. The judge held that the wife was 'reduced by these repeated unpredictable and savage attacks to a state in which she was terrified of the possibility of a recurrence'.[224] On the final occasion, he had lost his temper and was beginning to lose his self-control. She knew the situation 'could slip into serious violence towards her. She picked up the gun in the hope it would deter him'.[225] The trial judge held that 'on the evidence before me I do not think that it is possible to doubt that she did not intend to fire it when she picked it up or when she released the safety catch'.[226]

161 The wife was a beneficiary under her husband's will. The executor sought a determination from the Court as to whether she was precluded by the forfeiture rule from taking any interest under his will. The widow submitted that the forfeiture rule should apply only to cases of voluntary manslaughter 'that is, in cases where what would otherwise be murder is reduced to manslaughter by provocation or diminished responsibility or because the death occurred in pursuance of a suicide pact, and not to cases of involuntary manslaughter, that is, where an unlawful killing is reduced to manslaughter because there is no intent to kill or to do grievous bodily harm'.[227] In the alternative, she argued that 'the rule should only apply to cases of voluntary manslaughter and to cases of involuntary manslaughter where there is something more than a threat sufficient to raise a fear of violence, that is to cases where actual force is employed'.[228] Vinelott J rejected that argument. He referred to Gray and said:[229]

In my judgment the facts of this case fall clearly within the test propounded by Geoffrey Lane J in the passage which I have cited from his judgment in Gray v Barr. The widow, like Mr Barr, was guilty of a threat of violence which was deliberate in that she intended to frighten and so deter the deceased. The death, though I accept wholly unintended, was the unfortunate consequence of her conduct in threatening the deceased with a loaded gun and disengaging the safety catch. Given that the death was the consequence, albeit unintended, of that deliberate threat the court cannot go further and evaluate the degree of moral culpability to be attributed to her conduct in order to say whether the forfeiture rule applies or not.

162 Over the last 20 years, several judges have considered the basis and scope of the forfeiture rule. As will appear below, in Evans Young J considered that there had been a change in public policy such that the rule should not necessarily apply in circumstances occasioned by domestic violence. In Kemperle v The Public Trustee,[230] Powell J rejected the reasons of Young J in Evans and said that the law had not retreated from the stage where the rule was to be applied in the case of manslaughter at the hands of a beneficiary.[231] In Fraser, Kearney J considered that the basis of the rule lay in equity and that the test to be applied was whether the taking of a benefit by a person through his crime would be unconscionable as representing an unjust enrichment of that person so as to attract the public policy rule. Similarly, in Keitley Coldrey J held that, before applying the rule, the Court could consider all the circumstances surrounding the unlawful killing including the behaviour of the offender and the victim in order to assess the seriousness of the conduct and the level of moral culpability of the putative beneficiary. In Permanent Trustee Company Ltd v Freedom From Hunger Campaign,[232] Rolfe J held that the rule only applied where the beneficiary had killed his or her benefactor in order to obtain an advantage. Finally, in Troja, Kirby P, in dissent, held that the basis of the rule lay in equitable principles and that it was applied in equity to prevent an unconscionable result. However, in that case, Mahoney and Meagher JJA rejected the proposed reformulation of the rule by Kirby P as misconceived.

163 Evans concerned an application by the Public Trustee for judicial advice respecting the administration on intestacy of a deceased estate.[233] The deceased had been killed by his wife. He had assaulted her and their young daughter. The deceased had grabbed his wife and dragged her out into a shed and told her to stay there and that he was going to kill the children. She saw him go into the house and load a gun and leave it on the kitchen table. She approached the deceased who told her to go back to the shed and threw a bottle and cutlery at her. She picked up the gun and, as he approached her, she shot him. The wife was charged with manslaughter. At the end of the Crown case, the trial judge upheld a submission that, as he was of the opinion that a nominal punishment would be sufficient, he would discharge the jury from giving any verdict. That course was followed. By virtue of a provision in the Crimes Act, the discharge of the jury operated as an acquittal. The question was whether the Public Trustee was justified in administering the deceased's estate on the basis that public policy prevented the widow from taking what would otherwise be her share in intestacy. Young J considered some of the authorities on the forfeiture rule including Cleaver's case and Gray. He considered that while the forfeiture rule was a rule of public policy 'scant attention seems to have been paid as to what exactly that policy is'.[234] He said:[235]

I have to decide whether in 1985 in New South Wales there is a rule of public policy which makes it anti-social to permit a wife who has been threatened by her husband that he will kill her and her children, and who has shot him to prevent mayhem, to be debarred from recovery ... My view of the ethos prevailing in this State at this time is that it is commonly recognized that unfortunate situations may occur in family groups whereby a death regrettably occurs because of a situation of domestic violence. The learned trial judge recognized this in giving the jury the direction he did under the Crimes Act, s 24, and I believe it would be socially unreal for me not to recognize the same thing in this Court of equity and good conscience. The rule that we are applying here is essentially a judge-made rule, it is a rule of public policy and it is open to a judge whilst recognizing the importance of all that has been said beforehand, to make the pronouncement if he thinks it appropriate as to the limitation of the rule for his particular age.

164 Although Helton[236] was referred to in argument, it is not referred to in the reasons of Young J. Further, the reasoning of Young J, far from beginning with the forfeiture rule, tends to end with it. In other words, having decided that public policy should not operate to bar the wife from taking on the intestacy of her dead husband, the rule was not to apply.

165 In Kemperle, a husband who was suffering from paranoid schizophrenia attacked his wife and inflicted injuries upon her from which she died. He was taken into custody and charged with the murder of his wife. In the event, he was found not guilty of the charges contained in the indictment on the grounds of mental illness. He was directed to be held in custody. In so far as she had died intestate, prima facie the whole of her estate would pass to her husband. The issue before the Court was whether the forfeiture rule operated to deprive him of what would otherwise be his right. The judge considered the various authorities including the decision of Young J in Evans. He said:[237]

Although it may be that the decision in Public Trustee v Evans (supra) may be justified upon the basis that, in the circumstances, the deceased's widow was to be treated as if she had been acquitted, I regret that I am unable to accept that the principle which, until now, has been so consistently applied has retreated to the stage where it is not to be applied in the case of manslaughter at the hands of the beneficiary. If it were so, it would have been unnecessary for the Parliament of the United Kingdom to have passed the Forfeiture Act 1982 (Imp) so as to enable the Courts in England to modify the effect of the rule, where appropriate, to meet 'the justice of the case' (see, for example, Re K (deceased) (supra)), a power which the Parliament of this State might consider now conferring on this Court.

It is, however, to be observed that it is only in the case of felonious killing when the rule is called into operation; this being so, where, as is the case here, there has been an acquittal on the ground of mental illness, the rule of public policy does not require the further rule to operate (see Re Houghton; Houghton v Houghton; Re Pitts; Cox v Kilsby; and Re Plaister; Perpetual Trustee Company v Crawshaw).

In the event, the judge made orders for the distribution of the estate pursuant to powers conferred by the Testators Family Maintenance and Guardianship of Infants Act 1916 (NSW).

166 Thus, Powell J decided the case on the basis that the rule did not apply where there had been an acquittal on the grounds of mental illness. It appears that the approach taken in Evans would have been different. It would have involved an analysis of the justice of the case, and, if justice did not favour the putative beneficiary, the forfeiture rule should apply.

167 In Fraser, the deceased had been stabbed to death by her son. She had left a will in which her estate was divided between her son and her daughter. The question arose as to whether the forfeiture rule operated to deprive the son of his share under the will. Originally, he had been certified as being unfit to plead on the ground that he was mentally ill. Eventually, he stood trial for, and was convicted of, the murder of the deceased. On the application by the Public Trustee, the trial judge (Kearney J) rejected as irrelevant the certificate of conviction. The son contended that the Court should find that he was mentally ill at the time he killed his mother and that, accordingly, the forfeiture rule should not apply. The trial judge considered that it was his task to retry, as a civil issue, whether the son had committed the crime of murder or manslaughter of the deceased. It was not in dispute that the son had suffered for several years from paranoid schizophrenia. The judge considered the evidence from various psychiatrists and psychologists and concluded 'that a better and safer indication of the state of mind of the son is provided by the more contemporaneous evidence which emerges in the form of his record of interview with the police. This shows his knowledge and intention at the time and his appreciation of the wrong-doing involved in his reference to being frightened of the consequences.'[238] In the event, he decided that, while the son should not be treated as having committed murder, 'a proper finding in the circumstances is that his mental condition so affected his actions as to render his offence one of manslaughter on the ground of diminished responsibility. This finding seems to me to accord entirely with the substance of the medical evidence and, in my view, correctly reflects the nature of the crime which was committed.'[239]

168 In argument before him, the son had relied upon the decision in Evans and his sister upon Kemperle. Kearney J considered the authorities and concluded that in England 'it is proper to look at the nature of the crime to determine whether it falls within the operation of the forfeiture rule, but that it is not permissible to take the further step of assessing the degree of moral culpability.'[240] He also considered some American authorities and texts that had approached the forfeiture rule on a constructive trust basis. He concluded:[241]

In the light of these differing approaches, the question arises as to what is

the principle upon which the relevant public policy is based. The English

courts have limited their inquiry to the nature of the crime committed and

have been thus deflected from a wider inquiry. But, is not the public policy

which is applied itself a rule deriving from the broader concept of

unconscionability ... The exceptions which have had to be developed in emphasising the commission of a crime as the basis for the rule illustrates the inadequacy of such basis. So also does the rigidity of the rule applied as so based, with the consequent potential for injustice which has attracted critical academic comment ...

By analogy to the principles of unconscionable assertion or retention of the

benefit of property (Muschinski v Dodds) and of unjust enrichment (Pavey & Matthews Pty Ltd v Paul) the conduct of a prospective beneficiary in relation to his testator may properly be considered under the rubric of unconscionability. It is in the light of such consideration that the application of the rule of public policy is to be determined. To adopt this approach is not to diminish the abhorrence of the slaying which is properly reflected in the sanctions of the criminal law, but rather to seek a principled basis for application of the rule of public policy in the different sphere of succession to property in the administration of a deceased estate: see this distinction per Jacobs JA in Rasmanis v Jurewitsch.

Hence, I consider that the fundamental question is to determine whether

the taking of a benefit by a person through his crime would be unconscionable as representing an unjust enrichment of that person so as to attract the

public policy rule. In my view this entails not only ascertaining the nature of

the crime but also looking to the circumstances in order to evaluate the moral

culpability to be attributed to the offender. To stop, as Vinelott J did at the

first step seems to me to apply the rule in a blinkered manner. As a matter of

principle a court is, in my view, required to take both steps.

Obviously, cases where the second step of assessing the moral responsibility

would displace the operation of the rule must involve most exceptional

circumstances to produce this result: see Re K dec'd; Public Trustee v Evans.

Consequently, such cases must necessarily be very rare.

In the event, Kearney J held that the son was disentitled by reason of the forfeiture rule to receive any interest in the estate of his mother. He had not 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. For him to benefit under the deceased's will, would constitute an unconscionable benefit'.[242]

169 In Keitley, the testator was killed by his wife who subsequently pleaded guilty to manslaughter. The question arose whether she was entitled to receive the life interest in his estate which had been provided for in his will. Having pleaded guilty to manslaughter, the wife did not give any evidence before the sentencing court. However, having listened to the evidence of others, the trial judge was prepared to accept the plea of manslaughter 'on the basis that the offence was committed through the performance of an unlawful and dangerous act'.[243] The wife gave evidence in the civil proceedings and the judge there held that, in the present case, the forfeiture rule should not operate to prevent the grant of probate as the killing 'had its genesis in the ongoing domestic violence experienced by Mrs Keitley at the hands of the deceased. It occurred at a time when she was gripped by fear and she was experiencing a level of emotional turmoil engendered by the deceased's conduct which precluded rational judgment and which, to a considerable degree, appears to have clouded her actual perception of the actions undertaken by her.'[244] In reaching that conclusion, the trial judge distinguished between the English authorities, which he said had been rigorously applied to situations of manslaughter involving unlawful violence, with the approach taken by Young J in Evans and generally adopted in Fraser. He considered that he had to choose between the English and the New South Wales authorities. He said:[245]

The continued rigidity of the English approach probably derives largely from the fact that an amelioration of the harsh results of the application of the forfeiture rule may be found in the provisions of the Forfeiture Act 1982. It may even be that the inflexibility of that rule will be modified in the light of the dicta of Salmon LJ in Gray v Barr: '... I am not deciding that a man who has committed manslaughter would, in any circumstances, be prevented ... from inheriting under a will or on the intestacy of anyone who he has killed. Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts.'

The New South Wales approach allows for the consideration of the circumstances surrounding the unlawful killing including the behaviour of the offender and the victim in assessing both the seriousness of the conduct and the level of moral culpability of the perpetrator of the fatal act. In one sense it permits the court to consider the question of forfeiture in the manner provided for in the English Forfeiture Act in order to achieve justice in each case.

Accordingly, it is my view that this court should follow the New South Wales authorities.

170 It will be noted that Coldrey J considered that the 'New South Wales approach' permitted the Court to consider the question of forfeiture 'in the manner provided for in the English Forfeiture Act in order to achieve justice in each case'.[246] In other words, it was only after the 'justice of the case' required that, for example, a beneficiary should not have entitlement under the will that the forfeiture rule applied. The rule had become a residual category rather than a premise in any theory.

171 In Permanent Trustee Company, an elderly couple had entered into a pact and had committed suicide together. Each had made a will. He had conferred a life interest on his wife and the remainder after her death 'upon trust for the Freedom from Hunger Campaign'. She had given the whole of her estate to him absolutely. The evidence was that the husband had survived his wife. As a result, if the terms of her will were to take effect, the Campaign would be entitled to the whole of his estate. The executor of the husband instituted proceedings to determine whether, having regard to the circumstances of the death of the wife, the estate of the husband was entitled to take as a beneficiary under her will. Having surveyed the early English authorities and Helton,[247] Rolfe J considered that the application of the rule depended upon there being an intention to obtain a benefit as a consequence of the crime. He said:[248]

The insanity cases, in my opinion, are explicable, as a matter of principle,

upon the basis that the killer was not aware that as a consequence of his or

her action, he or she would accelerate or secure a testamentary benefit or a

benefit on intestacy. In other words, the commission of the crime could not

be described as contrary to public policy, because it was not done with the intention of deriving the benefit. Similarly, in the motor car cases the

principle of public policy would seem to be excluded for the same reason. So

far as I am aware there has not been a 'motor vehicle' case where the claim

has been on the deceased's estate. However, the matter has been referred to

in the present context. Obviously one has to be careful in speaking of 'motor

cases' in such general terms. What I understand to be considered is a case

where criminally negligent driving, unconnected with a desire to kill, results

in death. It would be quite different if a beneficiary were to deliberately run

down a benefactor to obtain an advantage for the beneficiary. Thus, so it

seems to me, the exclusionary principle can be discerned as arising in

circumstances where the commission of the crime is found by the tribunal of

fact not to be causally related to a desire or intention to obtain a benefit. In

other words, the obtaining of the benefit is an unintended result or

consequence of the crime, rather than the reason for committing it. This

formulation requires a positive finding favourable to the person who has

committed the crime. This, in my opinion, accommodates the rule of public

policy, gives effect to the suggestion of Sir John Harvey, and explains at a

level of principle the exceptions to the general rule. Further, it would satisfy

the stated judicial desire that the rule of public policy ought not to be

extended more than necessary: per Lord Esher MR in Cleaver.

I remind myself that the rule of public policy said to be offended has never

been predicated on the question of intention. But if that element is not

added I do not see how the exceptions can be justified, or how restricting the

operation of the rule to what is 'necessary' can be achieved.

However, the approach of Rolfe J has been rejected. In Troja, all members of the Court rejected the proposition that the principle did not apply unless the killer was motivated by a desire to enrich himself. As Meagher JA said: 'the principle is fixed on an abhorrence of murder, not a disapproval of greed'.[249]

172 In Bain v Morabito,[250] the testator had been killed by his wife who had been found not guilty of murder but guilty of manslaughter. The question arose whether the wife was disqualified from obtaining a grant of Letters of Administration to which she would otherwise have been entitled. Because of the exiguous state of the evidence, the judge (Powell J) was not prepared to determine whether or not this was a case to which the forfeiture rule applied. However, he briefly described the rule and referred to Evans and Fraser, which had been followed in Keitley. He disagreed with those decisions and said:[251]

I remind myself that the rule of public policy said to be offended has never been predicated on the question of intention. But if that element is not added I do not see how the exceptions can be justified, or how restricting the operation of the rule to what is 'necessary' can be achieved.

With respect to those who have expressed such views, I find it difficult to accept - particularly in the light of the Judgment of the Court of Appeal in Rasmanis v Jurewitsch - that it is open to a trial Judge, in this State, to hold that 'the forfeiture rule' has retreated to the stage whether it is not to be applied in all cases involving a felonious slaying, and, in particular, that it is not to be applied in cases involving manslaughter, or, at least, in all cases involving manslaughter (see, for example, Kemperle v the Public Trustee).

However, in the absence of full argument on the matter, and because the Plaintiff's application for a grant of Letters of Administration can be disposed of without my expressing a concluded view on the matter - which, in the light of my doubts as to the Defendant's understanding of what is involved, I am reluctant to do - I refrain from doing so.

Even if the correct view be that espoused by those such as Young J, Rolfe J and Coldrey J, and even if, on a full analysis of the relevant facts, it were to be held that the Defendant was not disentitled, either, to take beneficially by survivorship, or, to take on an intestacy, the facts, first, that she is presently imprisoned in Mulawa Detention Centre, and, second, that she has, in any event, consented to the grant being made to the Plaintiff, mean that it is virtually inevitable that she be passed over. Further, the fact that each of the Plaintiff's two sisters has formally consented to the grant to the Plaintiff of Letters of Administration means that, subject only to the interests (if any) of the Defendant, and the interests of the Plaintiff's infant brother Domenico being adequately protected, it would now be appropriate for there to be made such Orders as would enable that grant to be made.

173 In Miliankos, one brother sought a declaration that another brother was disentitled to and had forfeited any claim to the benefit of their father's estate in so far as the latter brother had feloniously killed the testator. Nathan J followed the decision of Coldrey J in Keitley and formulated the issue as follows: 'the fundamental question for the court is to determine whether the taking of a benefit by the younger brother through his crime would be unconscionable as representing an unjust enrichment to him so as to attract the rule of public policy, that is, the judge made rule that a person should not benefit from the commission of a crime.'[252] The younger son had killed the father by stabbing him with a knife during a domestic dispute. He was charged with murder and found guilty of manslaughter. The jury 'strongly' recommended mercy. In the event, he decided that the moral culpability which should attach to the conduct of the younger brother was 'of a low order, and is not of such a high order that the public policy is best served by saying he should become disentitled to a share of his father's bounty.'[253]

174 However, the efforts by various judges to develop the law with respect to forfeiture were arrested by the New South Wales Court of Appeal in Troja.

175 In that case, a testator was killed by his wife. The couple had married in January 1982. The marriage had been unhappy. The wife had complained that her husband was seeking to deprive of her of any interest in their assets and that he had abused her. On 2 July 1989, the wife deliberately shot and killed her husband. Her statement to the police included the following: 'I pointed the rifle at him and fired. I recocked, I reloaded and shot the bastard again to make sure he fuckin' stayed dead. I felt free. All the abuse had stopped. All I could think of was if I got 20 years in jail, I couldn't be no more lonely than what I'd been. I was free, just no more abuse and I didn't cry.'[254] The wife was charged with the murder of her husband. The jury found her not guilty of murder but guilty of manslaughter. It was not in dispute that the verdict was explained by the defence of diminished responsibility upon which she had relied at trial. She was sentenced to 'eight years penal servitude, expiring on 23 July 1997; with an additional term of four years, dating from that date'. Appeals against conviction and sentence were dismissed.

176 The deceased had executed a will which had not been revoked upon his death. The will contained provisions appointing his wife as his executor and making her his sole beneficiary. The deceased's mother issued a summons out of the Equity Division of the Supreme Court of New South Wales in which she sought a declaration that the appellant had become disentitled to take any benefit under the will of the deceased by reason of the forfeiture rule. The summons also sought a declaration that the mother was entitled to take the whole of the estate 'as substitute beneficiary under the will'. The appellant filed a cross-claim in which she sought a declaration that she was entitled to the benefit of the whole of the estate under the will or, alternatively, that she was entitled to provision out of the estate pursuant to the Family Provision Act 1982. Waddell CJ in Eq held that she was not entitled to her claim to the whole of the estate on the basis that the law did not allow a person who deliberately killed another to benefit from the killing.[255] He ordered the Public Trustee, as administrator of the deceased's estate, administer the estate on trust for the deceased's mother, who was the residuary beneficiary under his will.

177 The New South Wales Court of Appeal (Mahoney and Meagher JJA, Kirby P dissenting) dismissed the appeal. Mahoney JA identified four facts which emerged from the evidence: (1) the wife killed the husband: she planned to kill him and she killed him deliberately; (2) when she killed him, she had reason to be and was emotionally upset, was or had been very depressed, and felt great resentment towards him; (3) she had no legal justification for killing him and she claimed none; and (4) she was apparently mistaken as to the ownership of the property with which she and the husband had been concerned and her rights in respect of it.[256] In these circumstances, the principle affirmed in Helton applied: 'that by committing a crime no man could obtain a lawful benefit to himself'.[257] Mahoney JA said that the principle was not new, it had been affirmed and applied in different and various contexts, and that it was therefore 'a principle of law long established and applied in various circumstances. The applications of it to trusts, wills and intestacies are but some applications of it'.[258] He said that pressures such as 'an unhappy marriage and an ongoing depression', while they may explain the planned and deliberate killing of a human being, do not excuse it.[259] Meagher JA said that the forfeiture rule was 'absolute and inflexible'.[260] It provides 'that where a person who would otherwise obtain a benefit by the death of another, has brought about that other's death by violent means, he shall not be entitled to take that benefit.'[261] The rule was based on public policy: 'an abhorrence of the notion that one may profit from killing another, an odium occisionis'.[262]

178 In his dissenting judgment, Kirby P canvassed all the relevant authorities and suggested a reformulation of the rule:[263]

The forfeiture rule is, in reality, an application to what would otherwise be

the operation of law of the equitable principles which deny persons from

gaining benefits from their own morally culpable conduct. To prevent that

happening, a court of equity is authorised to impose a constructive trust to

prevent the perpetrator's gain. The trust will be imposed by the court to

achieve a just result and to prevent the unjust enrichment of the wrongdoer.

In fashioning the trust, the court will also ensure against the unjust

enrichment of third parties, often at the expense of the wrongdoer. In many

cases, perhaps most, the conduct of the wrongdoer in perpetrating a

felonious homicide will be such that the constructive trust, fashioned by the

court, will deprive the wrongdoer completely of any benefit whatsoever

either under the will of the victim, or by the law of intestacy. Equity will

operate upon the conscience of the wrongdoer. In this way, there is no

extraordinary defiance by the courts of the clear operation of statute or other

law. Nor is there any artificial interference in the ordinary operation of the

common law of property. Equity simply intervenes to prevent an

unconscionable result. In particular circumstances, an unconscionable result

could include the complete loss by the wrongdoer (and those taking through

the wrongdoer) of the benefits provided by the will, or of the benefits

provided by the law of intestacy.

The foregoing is in line with correct legal principle. It accords with the

authorities long accepted in the United States, urged by Professor Ames. It is

wholly in keeping with the proper, legal and equitable principles applicable

in this jurisdiction. It is also a recognition of what Waddell CJ in Equity

ultimately resolved to do in his determination of the outcome of this

particular case.

179 For their part, Mahoney and Meagher JJA rejected the reformulation of the rule proposed by Kirby P. In particular, they rejected the idea, first adumbrated by Young J in Evans, that the rule was principally equitable in nature. Mahoney JA said that the rule was one of law: the law will not enforce 'rights directly resulting to a person asserting them from the crime of that person'.[264] It was a principle of law that applied to trusts, wills, intestacies and so forth. Mahoney JA thought that the principle was not in doubt but that the question was whether it should be applied in the circumstances of the present case which have been described above.[265] In the present case he said that the relationship between the killing and the claim to the benefit from it was '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'.[266] Meagher JA said that the rule provides that 'where a person who would otherwise obtain a benefit by the death of another, has brought about that other's death by violent means, he shall not be entitled to take that benefit'.[267] He rejected the idea that the Court had a discretionary power to relieve from the rule.

180 In Soukup, Gillard J followed the majority judgment in Troja and refused to follow the decision of Coldrey J in Keitley. A question arose whether a man who had strangled his wife was entitled to participate in the distribution of her estate upon intestacy. The husband had been charged with murder. The charge was reduced to manslaughter and he pleaded guilty. He was sentenced to a good behaviour bond for five years. It appears that the husband was suffering from a serious medical and psychological condition the impact of which was said to explain his behaviour in causing his wife's death. The sentencing judge said that, by reason of his plea of guilty, he should be taken to have admitted that he knew what he was doing and that he knew what he was doing was wrong. The judge said 'the Crown accepted the plea of guilty to manslaughter on the basis that the death arose from an unlawful and dangerous act without your having formed either such intention'.[268] However, he concluded that imprisonment would be inappropriate. He said 'the moral culpability for your wife's death is reduced by virtue of the fact that your conduct was undoubtedly, and to a very significant degree, a product of the impaired emotional control caused by your neurological condition'.[269] The trial judge refused to follow the decision in Keitley. He disagreed with Coldrey J as to whether any Victorian authority applied to the situation. He considered, rather, that the law in Victoria was that stated in Helton. In addition, he approved of the judgments of Mahoney and Meagher JJA in Troja. He concluded:[270]

In my opinion, a person who kills another and is convicted of manslaughter forfeits any benefit to the estate of the deceased pursuant to will or in accordance with the provisions of any statute on an intestacy.

He considered that for the judiciary to attempt 'to abrogate or modify the rule in a manslaughter case on the ground that the level of moral culpability is small, is to indulge in judicial legislation'.[271]

181 Whether the rule was to be confined to cases of 'of deliberate, intentional and unlawful violence, or threats of violence' was considered in Dunbar. In that case, a young couple who had acquired assets together had become engaged to be married. The defendant had been accused of theft by her employer. The young couple agreed to commit suicide. They made some unsuccessful attempts; eventually, he succeeded and she survived. The father of the deceased, as the administrator of his estate, sought a declaration as to the ownership of various assets including his son's half share in a house, various joint bank and building society accounts and the proceeds of two insurance policies, one of which was on the deceased's life for the benefit of the defendant. The judge found that the defendant had criminally aided and abetted her fiancé's suicide contrary to s 2(1) of the Suicide Act 1961. He held that the forfeiture rule applied but exercised his discretion under the Forfeiture Act 1982 so that the defendant could take a share in some of the assets but not the proceeds of the insurance policy on his life. She appealed to the Court of Appeal. The question relevant for present purposes is whether the forfeiture rule applied. The appellant contended that the rule only applied where the offender was guilty of deliberate, intentional and unlawful violence or threats of violence. She referred to Gray. She contended that her conduct did not answer that description as her fiancé had killed himself and that she had not used any deliberate or intentional violence or threat of violence against him. The Court of Appeal agreed with her.

182 Phillips LJ (with whom Hirst LJ agreed) said that the law with respect to the forfeiture rule had been developing throughout the 20th Century and that, in England, its development had been, to an extent, intercepted by the Forfeiture Act 1982. There had been a public appreciation of the 'different degrees of culpability that attend conduct that used to be designated as murder'.[272] Further, the legislature had provided forms of mitigation in the cases of diminished responsibility and provocation. The 'motor manslaughter' cases provided further examples of the attenuation of the rule. It seems that he considered that the judgments in Gray were designed to narrow the operation of the rule to cases in which death had resulted from deliberate intentional and unlawful violence or threats of violence. Some judges, however, had applied the rule rigorously even where the intended beneficiary had been convicted of manslaughter rather than murder on grounds of diminished responsibility.[273] Phillips LJ said that it was time to pause and take stock. In doing so, he referred to the dissenting judgment of Kirby P in Troja. Phillips LJ said:[274]

However, the harshness of applying the forfeiture rule inflexibly to all classes of manslaughter in all circumstances is such that I do not consider that, absent the statutory intervention which occurred, the rule could have survived unvaried to the present day. The obiter dicta of Salmon and Phillimore LJJ in Gray v Barr and Lord Lane CJ in Ex parte Connor were straws in the wind. The rule is a judge-made rule to give effect to what was perceived as public policy at the time of its formulation. I believe that, but for the intervention of the legislature, the judges would themselves have modified the rule. Furthermore, it seems to me that the only logical way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability, or such a high degree of mitigation, that the sanction of forfeiture, far from giving effect to the public interest, would have been contrary to it. Alternative suggestions that the rule should be restricted to cases of deliberate killing, or deliberate violence leading to death, do not cater for cases of diminished responsibility or provocation, where the mitigating features may be such as to render it particularly harsh to apply the forfeiture rule.

183 Mummery LJ dissented. He surveyed the authorities and formulated the following propositions: (1) the forfeiture rule had always applied where the benefit resulted from the commission of murder by the intended beneficiary; (2) the principle was not confined to murder cases; it could extend to manslaughter; (3) the rule did not apply to all cases of manslaughter 'any more than it applies to all other crimes regardless of their nature';[275] what matters is 'the nature and not the name of the crime';[276] (4) it extended to cases in which the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence and included cases where death was not intended; (5) however, the rule did not depend upon the presence of acts or threats of violence; it is sufficient 'that a serious crime has been committed deliberately and intentionally'.[277] Mummery LJ held that the rule depended upon the public policy that no one can benefit from his own wrong and that it was the nature of the crime that determined the application of the principle.[278] He said:[279]

In my judgment, however, the presence of acts or threats of violence is not necessary for the application of the forfeiture rule. It is sufficient that a serious crime has been committed deliberately and intentionally. The references to acts or threats of violence in the cases are explicable by the facts of those cases. But in none of those cases were the courts legislating a principle couched in specific statutory language. The essence of the principle of public policy is that (a) no person shall take a benefit resulting from a crime committed by him or her resulting in the death of the victim and (b) the nature of the crime determines the application of the principle. On that view the important point is that the crime that had fatal consequences was committed with a guilty mind (deliberately and intentionally). The particular means used to commit the crime (whether violent or non-violent) are not a necessary ingredient of the rule. There may be cases in which violence has been used deliberately without an intention to bring about the unlawful fatal consequences. Those cases will attract the application of the forfeiture rule. It does not follow, however, that when death has been brought about by a deliberate and intentional, but non-violent, act (e.g. poison or gas) the rule is inapplicable. In Whitelaw v Wilson Kingstone J in the High Court of Ontario applied the forfeiture rule to the survivor of a suicide pact in which both husband and wife drank arsenical poison. The wife died. The husband survived and it was held that he was not entitled to any share in his deceased wife's estate, as he was guilty of aiding and abetting, counselling and procuring his wife's suicide.

184 The appellant contended that the 'underlying public policy of the rule is not static and must change with time to reflect changes in the society's values and morality'. She referred to Stevens.[280]

185 It is true that, in the authorities, the forfeiture rule is said to be a rule of 'public policy'. Sometimes, the rule is said to be based on public policy; on other occasions it is said to be the expression of public policy. So, in Helton, Dixon, Evatt and McTiernan JJ appear to have accepted, as a principle of public policy, the principle that 'no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person'.[281] In Gray, Lord Denning MR said that a claim under an insurance policy was barred by 'public policy' where the person seeking indemnity had been guilty of deliberate, intentional and unlawful violence from which resulted the death of the victim.[282] Salmon LJ said 'although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun should be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted'.[283] In Troja, Meagher JA said of the rule that provides 'that where a person who would otherwise obtain a benefit by the death of another, has brought about that other's death by violent means, he shall not be entitled to take that benefit'. He said '[t]he basis of the doctrine is public policy, an abhorrence of the notion that one may profit from killing another, an odium occisionis'.[284]

186 In Evans, Young J asked the question whether in 1985 in New South Wales 'there is a rule of public policy which makes it anti-social to permit a wife who has been threatened by her husband that he will kill her and her children, and who has shot him to prevent mayhem, [is] debarred from recovery'.[285] He considered that 'the ethos prevailing in this State at this time is that it is commonly recognised that unfortunate situations may occur in family groups whereby a death regrettably occurs because of a situation of domestic violence'.[286] He thought that it would be 'socially unreal for me not to recognise the same thing in this Court of equity and good conscience'.[287]

187 When used in the law, the expression 'public policy' is not without its ambiguities. In Stevens, the Court was concerned with the question whether a payment made by a police association to support a member who had been engaged in legal proceedings was ultra vires the association. It had been contended that the payment would infringe the law of maintenance. Dixon J said:[288]

The law of maintenance is founded not so much on general principles of right and wrong or of natural justice as on considerations of public policy (per Lord Esher): Alabaster v Harness. Notions of public policy are not fixed but vary according to the state and development of society and conditions of life in a community.

It will be noticed that Dixon J contrasts 'general principles of right and wrong or of natural justice' with 'considerations of public policy'. In my opinion, the principles which underpin the forfeiture rule belong truly to the former category rather than to the latter. In other words, in referring to 'public policy', Dixon J was not referring to something so fundamental as the policies or principles upon which the forfeiture rule is based.

188 It will be noticed that, in Evans, Young J detected a change in public policy as justifying a change in the application of the forfeiture rule: see [160] above. Implicit in his suggestion is that 'public policy' merely reflects public attitudes and that, as there has been a change in public attitudes, public policy must change. In many cases where reference is made to 'public policy', that suggestion would have force. For my part, the concept of 'public policy' that is the foundation of or is expressed in the forfeiture rule is not so flexible. To me, the rule that a person should not benefit directly from his own crime is a rule as fundamental as rules such as the rules of natural justice or the principle of legality.

189 It will be recalled that, in her grounds of appeal, the appellant contended that the trial judge had erred in holding that the forfeiture rule was absolute and inflexible and did not contain a discretion for the court to grant relief from such forfeiture where the circumstances of the killing evidence a very low moral culpability on the part of the person whose actions caused the death. She said that the trial judge had erred in not following several decisions including the dissenting judgment of Kirby P in Troja. Similarly, State Trustees submitted that the correct approach was for the Court to declare that any unlawful conduct which causes death will, prima facie, bring about forfeiture, but that the Court has jurisdiction to grant relief against forfeiture in appropriate exceptional cases.

190 In my opinion, there is no basis upon which this Court can confer upon itself the discretion which legislatures in other jurisdictions have conferred upon their courts. Further, the forfeiture rule is a rule of law and not simply a principle or maxim of equity. While the scope of the rule must be determined, where it applies there is no basis to give relief from its operation in any particular case. The rule is not just a conclusion which can be drawn after a court has considered all the circumstances of the case and concluded that a beneficiary should not be entitled to receive any of the assets of the person that he or she has killed; it is not just a residual category. It is a rule that applies at the commencement of the enquiry; it is not simply a label to sum up the result of an enquiry. Although any court will have great sympathy for the circumstances of a person, such as the appellant, who has suffered violence at the hands of another, its sympathy does not justify it from excluding the application of the rule to her. Finally, there has been no relevant change in public policy. The expression 'public policy' does not refer to any stable concept. Notwithstanding that different sentences are used to express them, some propositions of law which are described as deriving from public policy are more readily set aside than others. At a general level, public policy underlies the principle that the law will not permit a wrongdoer to benefit from his wrong. At a more particular level, it provides that where a person who would otherwise obtain a benefit by the death of another has brought about the latter's death by violent means, he or she shall not be entitled to take that benefit. Such propositions are part of the architecture of our law. If the shape of our law is to be changed, it must be parliament that does so. For these reasons, the appellant has failed to distinguish Helton or to show that Troja was 'plainly wrong'.

191 It remains necessary to consider whether, by reason of what she did, the rule applies to the appellant. As indicated above, the application of the rule is not always clear. Its application does not depend upon the way in which the conduct was prosecuted or dealt with in the criminal jurisdiction; it depends rather upon how that conduct is assessed in the civil jurisdiction. The authorities indicate that, at the very least, the rule will be applied where a person is guilty of 'deliberate, intentional and unlawful violence, or threats of violence';[289] it applies in circumstances in which there is no legal justification for the killing. That is not to say that it could not apply in other cases of culpable killing where the violence was not deliberate. However, it does not apply where, for some reason, the person was not aware of the nature of their acts or of the moral wrongdoing involved: cases of insanity or cases where, for example, rational judgment has been precluded.

192 It is necessary to recall the circumstances in which the appellant killed her husband.[290] On any view, her conduct was deliberate, intentional and unlawful; it was 'wilful and culpable'. Although there was evidence that she had been the victim

of constant violence at the hands of her husband, it was not suggested that her culpability was diminished by circumstances such as the paranoid schizophrenia that was present in Kemperle or that she was experiencing a level of emotional turmoil that 'precluded rational judgment and which, to a considerable degree, appears to have clouded her actual perception of the actions undertaken by her' as in Keitley. In Troja, Mahoney JA identified several facts that emerged from the evidence including that the wife had killed her husband deliberately and that, when she killed him, she had reason to be and was emotionally upset, very depressed and felt great resentment towards him. But, she had no legal justification for killing him, and claimed none. It was in these circumstances that he said that while 'an unhappy marriage and an ongoing depression' may explain the planned and deliberate killing of a human being they did not excuse it. It was also in these circumstances that Meagher JA said that the forfeiture rule was 'absolute and inflexible' and provided that a person is not entitled to obtain a benefit from the death of another where the person 'has brought about that other's death by violent means'.

193 It is to be recalled that Weinberg JA sentenced the appellant to seven years' imprisonment with a non-parole period of four years and nine months. Although there was evidence that explained why the appellant had killed her husband, there was no legal justification for what she did.

[1] [1892] 1 QB 147 ('Cleaver').

[2] [1911] P 108 ('Crippen').

[3] See Gonzales v Claridades [2003] NSWCA 227 [46] (Mason P, with whom Beazley JA and Foster AJA agreed).

[4] [1914] P 1 ('Hall').

[5] Tinline v White Cross Insurance Association Limited [1921] 3 KB 327; James v British General Insurance Company Limited [1927] 2 KB 311; Hardy v Motor Insurers' Bureau [1964] 2 QB 745 though the latter case is an instance of grievous bodily harm rather than unlawful killing.

[6] Beresford v Royal Insurance Company Limited [1938] AC 586.

[7] In re Giles [1972] 1 Ch 544; Public Trustee v Fraser (1987) 9 NSWLR 433; In re H [1990] 1 FLR 441; Re Stone [1989] 1 Qd R 351.

[8] Though these difficulties dissipate if there is an acquittal on the basis of insanity: Re Plaister [1934] NSWStRp 18; (1934) 34 SR (NSW) 547; Public Trustee v Fraser (1987) 9 NSWLR 433, 441; Troja v Troja (1994) 33 NSWLR 268, 283 (Kirby P); In the matter of the Estate of Soukup (1997) 97 A Crim R 103, 108; Re Vyner (dec'd) (Unreported, Supreme Court of Queensland, Shepherdson J, 24 August 1999); In the Estate of the Late Fiona Ellen Fitter [2005] NSWSC 1188.

[9] Dunbar v Plant [1998] Ch 412; The Public Trustee of Queensland v The Public Trustee of Queensland [2014] QSC 47.

[10] In re Giles [1972] 1 Ch 544; In re K [1985] 1 Ch 85; Public Trustee v Evans (1985) 2 NSWLR 188; Re Keitley [1992] VicRp 38; [1992] 1 VR 583; Troja v Troja (1994) 33 NSWLR 268.

[11] I reviewed the background to the statutory offence of defensive homicide and its relationship to manslaughter in circumstances of excessive self-defence in R v Pepper [2007] VSC 234; (2007) 16 VR 637, 638-41 [10]-[22].

[12] R v McGrath [1999] VSCA 197 [15]-[17].

[13] (1994) 33 NSWLR 268 ('Troja').

[14] Re Edwards [2014] VSC 392 [100] ('Reasons').

[19] (1997) 97 A Crim R 103 ('Soukup').

[21] R v O'Connor [1999] VSCA 55 [19].

[22] See, eg, Shields v The Queen [2011] VSCA 386 and the other cases set out in the Annexure to that judgment, and more recently Pasznyk v The Queen (2014) 43 VR 169.

[23] See, eg, R v Lai [2015] VSC 346 [41].

[24] (1985) 2 NSWLR 188 ('Evans').

[25] [1992] VicRp 38; [1992] 1 VR 583 ('Keitley').

[26] Troja (1994) 33 NSWLR 269, 277-8.

[27] [1940] HCA 20; (1940) 63 CLR 691, 709 ('Helton').

[28] (1830) 4 Bligh NS 194; 5 ER 70.

[29] (1830) 4 Bligh NS 194, 211; 5 ER 70, 76.

[31] [1971] 2 QB 554 ('Gray').

[32] [1921] 3 KB 327 ('Tinline').

[33] Nydam v The Queen [1977] VicRp 50; [1977] VR 430.

[34] Tinline [1921] 3 KB 327, 330.

[38] [1927] 2 KB 311 ('James').

[46] [1938] AC 586 ('Beresford').

[47] Helton [1940] HCA 20; (1940) 63 CLR 691, 709.

[48] [1858] EngR 894; (1858) 25 Beav 605; 53 ER 768.

[49] Care is needed when considering statements in High Court judgments addressing different issues to those under consideration or similar issues in a distinguishable context: see O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698, 731 [144], 733 [156].

[50] [1964] 2 QB 745 ('Hardy').

[55] [1892] 1 QB 147, 150.

[56] Hardy [1964] 2 QB 745, 767.

[60] [1966] VicRp 73; [1966] VR 513 ('Fire and All Risks Insurance').

[63] [1971] 2 QB 554.

[75] [1981] 1 QB 758.

[77] (1987) 9 NSWLR 433 ('Fraser').

[78] (Unreported, Supreme Court of New South Wales, Powell J, 20 November 1985).

[79] (Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992).

[80] [1989] 1 Qd R 351.

[83] [1972] 1 Ch 544.

[84] [1989] 1 Qd R 351, 354.

[85] Troja v Troja (Unreported, Supreme Court of New South Wales Equity Division, Waddell CJ in Eq, 15 February 1993).

[87] Troja (1994) 33 NSWLR 268, 276.

[88] Troja v Troja (Unreported, Supreme Court of New South Wales Equity Division, Waddell CJ in Eq, 15 February 1993) 35.

[90] Troja (1994) 33 NSWLR 268, 278.

[114] Soukup (1997) 97 A Crim R 103, 113.

[116] Batey v Potts [2004] NSWSC 606; (2004) 61 NSWLR 274 (Gzell J); Pike v Pike [2015] QSC 134 (Atkinson J).

[117] Nay v Iskov [2012] NSWSC 598 (Brereton J).

[118] The Public Trustee of Queensland v The Public Trustee of Queensland [2014] QSC 47 (de Jersey CJ).

[119] [2011] HCA 9; (2011) 242 CLR 446 ('Miller').

[120] Ibid 454-5 [13]-[16] (citations omitted) (emphasis in original).

[121] As to which I refer to, eg, Miller [2011] HCA 9; (2011) 242 CLR 446; Hardy [1964] 2 QB 745; Fire and All Risks Insurance [1966] VicRp 73; [1966] VR 513.

[122] Megan Edwards was later given leave to file written submissions on the scope and application of the forfeiture rule. They are summarised in the judgment of Santamaria JA.

[123] DPP v Edwards [2012] VSC 138 ('Sentence Reasons').

[124] Affidavit sworn 3 April 2014 ('appellant's affidavit').

[125] The matters are drawn from the Sentence Reasons as well as the affidavit of the appellant sworn 3 April 2014, the affidavit of the appellant's mother sworn 4 March 2014 and the affidavit of Andrew Brand, solicitor for the appellant, sworn 1 May 2014, which annexed a number of statements relating to the appellant's medical history. These statements were from her treating psychiatrists, Dr Richard Price, Dr Albert L Kaplan, and Dr Julian Hughes, and from Dr Janet Towns, the medical practitioner who assessed the appellant's fitness to undergo police interview immediately after the appellant's arrest on 18 January 2011.

[127] According to the appellant's affidavit, the terms of that order were that the deceased was prohibited from committing an act of family violence against the appellant.

[136] Evans (1985) 2 NSWLR 188, 193.

[137] Keitley [1992] VicRp 38; [1992] 1 VR 583, 587.

[138] Troja (1994) 33 NSWLR 268, 293 (Mahoney JA), 300 (Meagher JA).

[139] Re Edwards [2014] VSC 392 ('Reasons').

[140] Megan Edwards was named as the first defendant in the proceeding and the second respondent to the appeal. On 12 February 2015, her solicitors wrote to the Registrar of the Court of Appeal informing him that she 'does not wish to participate in the appeal but agrees to abide by any Orders that the Court may make.' Jeannie Elizabeth Day (the mother of the appellant) was the second defendant in the proceeding and the third respondent to the appeal. She took no part either in the trial or on the appeal. Peter MacCallum Cancer Institute (a residuary beneficiary) was the third defendant in the proceeding. It appeared in the trial. However, both Megan Edwards and the Peter MacCallum Cancer Institute were represented when the matter was set down for mention on 18 December 2015. On 5 February 2016, Megan Edwards filed a written submission directed to the possibilities that (a) this Court would hold that there is a discretion to grant relief from the forfeiture rule based on the level of the person's moral culpability, and (b) this Court chose to exercise that discretion. Further, on 25 February 2016, the solicitor for Megan Edwards wrote to the Registrar of the Court of Appeal foreshadowing an application to the Court for leave to file written submissions on her behalf. In that letter, the solicitor explained that Megan Edwards had taken no part in the hearing of the appeal because she was proceeding upon a 'mistaken understanding' that the position of the State Trustees 'had not changed at trial and continued to affirm the proposition that the forfeiture rule should be applied rigidly'. This observation was not consistent with how the trial judge described the State Trustee's submissions: Reasons [20]. On 7 March 2016, the Court granted Megan Edwards leave to file written submissions on the question of whether the rule that a person who kills another by an unlawful act forfeits any benefit arising as a direct result of that act ought to be applied strictly to the appellant and not on a discretionary basis.

[141] This account of the background facts has been taken principally from the description of them given in the Reasons of the trial judge and in the Sentence Reasons of Weinberg JA when he sentenced the appellant after she had pleaded guilty to one count of defensive homicide: R v Edwards [2012] VSC 138 ('Sentence Reasons'). Had they not been adduced in evidence, the Sentence Reasons may not have been able to be used by the trial judge as evidence of the facts contained in them. However, they were placed in evidence. See [109]-[116] below.

[147] At trial, in addition to the affidavit of the appellant, the following affidavits were filed: (a) Rebeka Pascuzzi (State Trustees); (b) Megan Edwards (the daughter of the deceased); (c) Jean Day (mother of the appellant); and (d) Andrew Brand (solicitor to the appellant). Exhibited to the affidavits were various wills together with statements made by various doctors with respect to the appellant. In addition, the Reasons indicate that an affidavit of Sarah Gittins was also filed: Reasons [10]. The transcript of the hearing below indicates that the Sentence Reasons were an exhibit to the affidavit of Ms Gittins. During the conduct of the hearing below, counsel for the appellant referred to the Sentence Reasons. The Sentence Reasons did not form part of the Appeal Book.

[148] The record of interview itself was not in evidence.

[149] The crime of defensive homicide was abolished by s 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014.

[151] In Troja v Troja, the New South Wales Court of Appeal also relied upon the 'remarks on sentence' of the judge who had sentenced Mrs Troja: (1994) 33 NSWLR 269, 274 (Kirby P) ('Troja'). Sentence reasons were similarly used by Coldrey J in Re Keitley [1992] VicRp 38; [1992] 1 VR 583, 584 and by Gillard J in In the Estate of Soukup (1997) 97 A Crim R 103, 115-18. Sometimes, the judge in the civil proceedings has had recourse to the depositions that were used in the criminal trial: Re Keitley [1992] VicRp 38; [1992] 1 VR 583, 584_; Public Trustee v Fraser_ (1987) 9 NSWLR 433, 435D (Kearney J). Of course, there are no sentence reasons where the beneficiary has been acquitted: see, eg, Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 and Gray v Barr [1971] 2 QB 554. In some civil proceedings there is no charge: see, eg, Dunbar v Plant [1998] Ch 412.

[153] [2007] NSWCA 341.

[154] Ibid [9] (citations partially omitted).

[155] [2012] NSWCA 325 [9]-[10].

[157] (1985) 2 NSWLR 188 (Young J) ('Evans').

[158] (1987) 9 NSWLR 433 (Kearney J) ('Fraser').

[159] [1992] VicRp 38; [1992] 1 VR 583 (Coldrey J) ('Keitley').

[160] Troja (1994) 33 NSWLR 269.

[161] (1997) A Crim R 103 ('Soukup').

[162] Reasons [87]-[90] (citations omitted).

[168] Ibid [102] (citation omitted).

[172] (Unreported, Supreme Court of Victoria, Nathan J, 24 March 1994) ('Miliankos').

[173] In several jurisdictions the forfeiture rule has been either abolished or ameliorated by statute. See Forfeiture Act 1982 (UK), Forfeiture Act 1991 (ACT) and the Forfeiture Act 1995 (NSW). In September 2014, the Victorian Law Reform Commission published its report entitled 'The Forfeiture Rule' in which it concluded that Victoria should introduce legislation 'that either excludes particular homicides from the operation of the rule or gives the courts a discretion to modify the effect of the rule on a case-by-case basis.'

[174] [1946] HCA 16; (1946) 72 CLR 1 ('Stevens').

[176] As indicated in [72] above the Court gave the appellant leave to make further written submissions on the disposition of the matter should the Court reach a conclusion that the forfeiture rule was not inflexible. Whelan JA has described the content of those further submissions. In so far as I am of the view that the forfeiture rule applies in the circumstances of the present case, it has been unnecessary to consider those further submissions.

[177] The State Trustees referred to Stevens [1946] HCA 16; (1946) 72 CLR 1, 28 (Dixon J) and Soukup (1997) A Crim R 103, 115.

[178] [1940] HCA 20; (1940) 63 CLR 691 ('Helton').

[179] (1994) 33 NSWLR 269.

[180] [1971] 2 QB 554 ('Gray').

[182] (1997) 97 A Crim R 103.

[183] In re Roche [1939] St R Qd 221.

[184] In re Roche [1940] St R Qd 1.

[185] [1940] HCA 20; (1940) 63 CLR 691, 709-10.

[186] See now s 92(2) of the Evidence Act 2008 which provides that evidence of a conviction is admissible in a civil proceeding to prove the existence of a fact that was in issue in a criminal proceeding. Pursuant to s 178(2) of the Evidence Act 2008, evidence of a conviction may be given by a certificate. In the present case, a certificate of the conviction of the appellant of defensive homicide was adduced in evidence.

[187] [1940] HCA 20; (1940) 63 CLR 691, 709 (citations omitted).

[188] [2007] HCA 22; (2007) 230 CLR 89 ('Farah').

[189] Ibid 151 [134]. See also 159 [158].

[190] Although the majority in Helton say that the rule was extended to include 'not only murder but manslaughter', the judgment is not authority for the proposition that it includes every case of manslaughter.

[191] [2007] HCA 22; (2007) 230 CLR 89, 151-2 [135] (citation omitted). See Justice Mark Leeming, 'Farah and its progeny: comity among intermediate appellate courts' (2015) 12(2) TJR 165.

[192] [2002] NSWCA 205; (2002) 55 NSWLR 113.

[193] An appeal to the High Court was dismissed: see Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469. However, the High Court was divided on the question whether any duty existed.

[194] Scott v CAL No 14 Pty Ltd [2007] TASSC 94; (2007) 17 Tas R 72 (Blow J).

[195] Scott v CAL No 14 Pty Ltd (No 2) [2009] TASSC 2; (2007) 17 Tas R 331 (Evans and Tennent JJ, Crawford CJ dissenting).

[196] [2009] HCA 47; (2009) 239 CLR 390.

[197] Ibid 412-13 [51] (citations omitted). In Narain v Euroasia (Pacific) Pty Ltd [2009] VSCA 290; (2009) 26 VR 387, 369[44], Nettle JA (with whom Bongiorno JA and Byrne AJA agreed) referred to CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 and said: 'As I understand the High Court's most recent edict on stare decisis, however, this court does not have power to change the common law of this country, only to apply it, and we are not to depart from another State appellate court's interpretation of the common law of this country unless we think it is plainly wrong. Strictly speaking, Santow and Campell JJA's remarks in Elkofairi were obiter, but I take them to be 'seriously considered' obiter and, with respect, I am not persuaded that they are plainly wrong' (citations omitted).

[198] See also Evans (1985) 2 NSWLR 188; Fraser (1987) 9 NSWLR 433.

[199] See the remarks of Phillips LJ in Dunbar [1998] Ch 412, 435-6.

[200] See Troja (1994) 33 NSWLR 269, 294 (Mahoney JA), 300 (Meagher JA).

[201] The use of the constructive trust to resolve issues that arise when the rule applies may have led some judges to consider that the rule itself is equitable in nature and, therefore, necessarily discretionary in character.

[202] [1892] 1 QB 147 ('Cleaver's case').

[203] Ibid 156. The Court held that any trust in favour of the wife became incapable of being performed in consequence of the rule of public policy. In those circumstances, there was a resulting trust in favour of the husband's estate which existed for the benefit of persons otherwise entitled.

[204] [1911] P 108.

[206] In the Estate of Crippen [1911] P 108, 112. The President referred to Cleaver's case.

[207] [1914] P 1.

[211] [1971] 2 QB 554, 569, 571-2 (Lord Denning MR), 581 (Salmon LJ).

[213] See Tinline v White Cross Insurance Association Ltd [1921] 3 KB 327; James v British General Insurance Co Ltd [1927] 2 KB 311.

[214] [1937] 2 KB 197 219-20 (Lord Wright MR, Romer and Scott LJJ) (citations omitted). See Gardner v Moore [1984] AC 584 in which it was held that it was not contrary to public policy to allow recovery under a policy of insurance even though there had been a case of manslaughter by virtue of negligent driving arising out of a motor vehicle accident.

[215] [1971] 2 QB 554, 581H. See, eg, Andrews v Director of Public Prosecutions [1937] AC 576.

[216] (1970) 70 SR (NSW) 407 ('Rasmanis'). In his reasons, Jacobs JA says little about the circumstances of the killing. He says simply: 'Andrej Jurewitsh feloniously slew his wife Helene Jurewitsh on 12th August, 1964'. The judgment of the primary judge is reported: see Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59 (Street J). However, it contains no description of the circumstances in which the defendant was found guilty of manslaughter.

[217] (1970) 70 SR (NSW) 407, 412B.

[218] [1971] 2 QB 554.

[219] [1970] 2 QB 626, 640.

[223] [1985] 1 Ch 85 ('Re K').

[229] Ibid. In the event, Vinelott J modified the operation of the forfeiture rule in favour of the wife. In Re K [1986] Ch 180, the Court of Appeal in England (Ackner, Griffiths and Browne-Wilkinson LJJ) dismissed an appeal from the order of Vinelott J. However, the appeal did not relate to the scope of the rule.

[230] (Unreported, Supreme Court of New South Wales, Powell J, 20 November 1985) ('Kemperle').

[231] As will appear below, Powell J held that the rule 'only applied in the case of felonious killing'; it did not apply where there had been an acquittal 'on the ground of mental illness': 15-16.

[232] (1991) 25 NSWLR 140 ('Permanent Trustee Company').

[233] Young J considered the decision of Vinelott J in Re K [1985] 1 Ch 85.

[234] (1985) 2 NSWLR 188, 192.

[237] (Unreported, Supreme Court of New South Wales, Powell J, 20 November 1985) 15-6 (citations omitted).

[238] (1987) 9 NSWLR 433, 439.

[243] [1992] VicRp 38; [1992] 1 VR 583, 584.

[247] His survey did not include Gray. See [157]-[158] above.

[248] (1991) 25 NSWLR 140, 148-9.

[249] (1994) 33 NSWLR 269, 299. See also Kirby P at 281.

[250] (Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992).

[252] (Unreported, Supreme Court of Victoria, Nathan J, 24 March 1994) 1.

[254] (1994) 33 NSWLR 269, 272.

[255] (Unreported, Supreme Court of New South Wales, Waddell CJ in Eq, 15 February 1993).

[256] (1994) 33 NSWLR 269, 289-90.

[257] Ibid 295, quoting Helton [1940] HCA 20; (1940) 63 CLR 691, 710.

[258] (1994) 33 NSWLR 269, 296.

[262] Ibid. Both Mahoney JA (at 294) and Meagher JA (at 300) explained that the rule had no application to the property entitlements which the wife had already acquired in equity at the time of her husband's death. Both referred to Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137.

[264] (1994) 33 NSWLR 269, 294 quoting the majority judgment in Helton [1940] HCA 20; (1940) 63 CLR 691, 709.

[266] (1994) 33 NSWLR 269, 297-8.

[268] (1997) 97 A Crim R 103, 117.

[271] Ibid. Gillard J said that he had been 'very much influenced by the thoughts on public policy' in the speech of Lord Wright in Fender v St John-Mildmay [1938] AC 1, 38-42.

[273] He referred to In Re Giles [1972] 1 Ch 544 (Pennycuick V-C),

[274] Dunbar [1998] Ch 412, 435-436 (citations omitted).

[278] Ibid. When considered with the rest of his remarks, the reference by Mummery LJ to the 'nature of the crime' is a reference to the description that a civil court would give to the conduct in question and not to what might have been the charge in any related criminal proceedings.

[280] [1946] HCA 16; (1946) 72 CLR 1, 28 (Dixon J).

[281] [1940] HCA 20; (1940) 63 CLR 691, 709.

[282] [1971] 2 QB 555, 567-9.

[284] (1994) 33 NSWLR 269, 299.

[285] (1985) 2 NSWLR 188, 192.

[288] [1946] HCA 16; (1946) 72 CLR 1, 28 (citation omitted).

[289] Gray [1971] 2 QB 554; see [137]-[138] above.