Re Settree Estates; Robinson v Settree

By a summons filed on 7 February 2017 and amended on 22 March 2017, the plaintiff applies, under section 11 of the Forfeiture Act 1995 NSW, for orders that the “forfeiture rule” apply to her brother, the defendant, in her administration of the deceased estates of their parents, each of whom was shot dead by the defendant, without lawful justification, on 3 December 2014.

Section 3 of the Forfeiture Act 1995 defines the “forfeiture rule” as “the unwritten rule of public policy that in certain circumstances precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing”.

At common law, the forfeiture rule applies, inter alia, to cases of murder (Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147; Re Estate of Crippen [1911] P108) and manslaughter (Re Estate of Hall [1914] P1); but not in the case of a person found not guilty of murder on the ground of mental illness: Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547 at 558; 51 WN (NSW) 141; Kemperle v Public Trustee (Powell J, 20 November 1985, unreported) BC 8500411 at 16. The rule applies to intestate estates as well as those governed by a will: Re Jane Tucker, deceased (1920) 21 SR (NSW) 175 at 181-182; 38 WN (NSW) 28 at 31.

In the case of an unlawful killing that does not constitute murder (section 4(2)(a)) the Forfeiture Act empowers the Court, if satisfied that that “justice” so requires:

The defendant was tried for the murder of his parents by Campbell J, sitting without a jury (for reasons explained in R v Settree [2016] NSWSC 1028), giving rise to a determination on 4 August 2016 that the defendant was not guilty of murder by reason of mental illness: R v Settree (No. 2) [2016] NSWSC 1079.

More particularly, Campbell J (under section 38 of the Mental Health (Forensic Provisions) Act 1990 NSW) returned a special verdict of not guilty of the charge of murder by reason of mental illness in respect of the deaths of each of the defendant’s parents and (under section 39 of the same Act) ordered that the defendant be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

In the wake of his finding that the defendant was “criminally insane” at the time he killed his parents ([2016] NSWSC 1079 at [80]), Campbell J accepted that the defendant was fit to plead guilty on a related firearms charge (possession of an unauthorised prohibited firearm contrary to the provisions of section 7(1) of the Firearms Act 1996 NSW) , for which his Honour sentenced the defendant to a term of imprisonment, backdated so as to have expired by the time of imposition of the sentence: [2016] NSWSC 1079 at [3] and [84]-[97]. Despite his finding that the defendant was mentally ill at the time he shot his parents, the judge accepted that the defendant “knowingly” had custody of the “murder weapon” (as His Honour described it), a 12 gauge pump-action shotgun.

The defendant continues to be detained pursuant to that order. He is represented in these proceedings by a paternal aunt who, by an order made on 5 June 2017, was appointed his tutor for that purpose.

Her appointment as tutor was supported by the facts that: (a) on 11 January 2016 the defendant executed an enduring power of attorney in her favour; and (b) there was no subsisting order (of the Court, the Guardianship Division of the NSW Civil and Administrative Tribunal or the Mental Health Review Tribunal) for the estate of the defendant to be subject to protective management under the NSW Trustee and Guardian Act 2009 NSW.

The necessity for a tutor arises from the defendant’s detention in a mental health facility pursuant to Campbell J’s orders: Guler v NSW Trustee and Guardian [2012] NSWSC 1369 at [3]. As a “forensic patient” he is a “person under legal incapacity” within the meaning of section 3(1) of the Civil Procedure Act 2005 NSW. That definition feeds into the provisions of Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 NSW. Rule 7.14 provides that a person under legal incapacity cannot ordinarily carry on proceedings except by a tutor, represented by a solicitor. Rule 7.17(1) provides that the plaintiff in proceedings against a defendant who is a person under legal incapacity can ordinarily take no further step in the proceedings following service of originating process until a tutor has entered an appearance on behalf of the defendant.

If satisfied that it is appropriate to do so in the circumstances of a particular case, the Court can dispense with these rules: Civil Procedure Act 2005, section 14. A dispensation order is not uncommonly made in proceedings involving an exercise of protective jurisdiction in which it is in the interests of an incapacitated person for the proceedings to be entertained. However, in proceedings such as the present, where entitlements of an incapable person are liable to forfeiture, the Court ordinarily requires him or her to have the benefit of both a tutor and legal representation.

A tutor having been appointed for the defendant, in circumstances in which the tutor had instructed a solicitor, on the same day (5 June 2017):

After the defendant’s legal representatives were allowed substantial opportunities to consider whether other evidence should be relied upon in opposition to the plaintiff’s application, both parties invited the Court to proceed on the basis that the factual parameters of the present proceedings are substantially defined by Campbell J’s thorough judgment in the criminal proceedings. Both parties accepted his Honour’s findings of fact as an accurate summary of the facts and circumstances bearing upon decisions to be made in the current proceedings.

Section 91 of the Evidence Act 1995 NSW (which provides that evidence of a decision or a finding of fact in proceedings is not admissible to prove the existence of a fact that was in issue in those proceedings) provides no impediment to the Court, in these proceedings, acting on the parties’ joint invitation to adopt, and act upon, undisputed findings of fact made in the criminal proceedings. Although Campbell J had to decide (as the only issue for his determination) whether the mental illness defence was available to the defendant in the criminal proceedings, there was general agreement between the prosecution and defence, and their respective medical experts, that it was, and that the underlying facts were not in dispute: [2016] NSWSC 1079 at [6], [12], [30]-[37].

With the acquiescence of the parties, a Forfeiture Act application may be determined by adoption of, or by reference to, findings made in an earlier judgment in criminal proceedings (eg, Jans v Public Trustee [2002] NSWSC 628 at [2]) or by a review of the evidence upon which such findings were made (eg, Hill v Hill [2013] NSWSC 524; 11 ASTLR 121), eschewing a fresh contest which may, in formal terms, be an available option (Public Trustee v Fitter [2005] in NSWSC 1188 at [10]-[11]; Nay v Iskov [2012] NSWSC 598). In the present proceedings, the parties accepted Campbell J’s special verdicts (of not guilty of murder by reason of mental illness) as correct and available to be relied upon.

In any event, the evidence before the Court in these proceedings includes (a) the evidence adduced in the criminal trial; and (b) a “certificate of court result” (under section 178 of the Evidence Act 1995) which formally proves (for the purpose of section 11 of the Forfeiture Act) the jurisdictional fact that, on the ground of mental illness, the defendant was found not guilty of the murder of his parents.

The hearing of the present summons was conducted without objection to any of the evidence adduced on either side of the record and without cross examination of any witness. The defendant did not personally give evidence on his own behalf.

The plaintiff and the defendant are the only children of the deceased. Sister and brother, both, are adults. The plaintiff was born in about 1962. The defendant was born in 1968.

The deceased parents were shot by the defendant at close range following a minor domestic dispute between the defendant and his father. The argument between father and son led, in succession, to a physical assault by the defendant on his father; a demand by his long suffering mother that the defendant leave the family home; and the defendant’s fatal deployment of the shotgun he kept in his bedroom. The mother, Margaret Catherine Settree (“Mrs Settree”), was the first to die. Her death was followed, in quick succession, by that of her husband, the father of the parties, Donald Ian Settree (“Mr Settree”). Mrs Settree was shot once, without warning. Mr Settree was shot twice, in disregard of a plea for mercy.

There is no suggestion that Mr and Mrs Settree were otherwise than blameless, loving parents.

Mr and Mrs Settree left reciprocal wills dated 23 February 1993 which, given their near simultaneous deaths, essentially provide, in terms, that the whole of each estate passes to their children (the plaintiff and the defendant) in equal shares as tenants in common. In broad terms, the combined value of the two estates (including superannuation and life insurance entitlements) is of the order of $2,000,000. Absent forfeiture application orders under section 11 of the Forfeiture Act, half of that will pass to the defendant.

Each will contains an express provision that, if either of the plaintiff or the defendant were to predecease their parents leaving children (that is, grandchildren of the deceased parents), then the grandchildren would, in equal shares, take the share which would have passed to their parent, the plaintiff or the defendant as the case may be.

The defendant has two adult sons, respectively born in February 1996 and April 1997. Each of them has affirmed an affidavit in support of the plaintiff’s application.

At common law, if the forfeiture rule applies, it generally operates to preclude, not only a person who has unlawfully killed another person from taking any benefit that might otherwise flow from the death, but, also, to preclude other persons from claiming a benefit through the offender.

The forfeiture rule, as a modern rule of public policy, is sometimes said to have been developed by judges in response to the statutory abolition of older common law rules governing forfeiture of property to the Crown, and loss of civil rights, following upon conviction of a felony: eg, Troja v Troja (1994) 33 NSWLR 269 at 277-278 per Kirby P.

The modern forfeiture rule lacks the clarity of focus of an old style forfeiture to the Crown; it focuses attention on a killer’s loss of benefits without certainty as to who, incidentally, acquires forfeited benefits. This is a problem inherent in the operation of the modern rule - determination of how far the rule operates derivatively and who takes the benefit of property the subject of a forfeiture: Public Trustee v Hayles (1993) 33 NSWLR 154; Egan v O’Brien [2006] NSWSC 1398.

If, under section 11 of the Forfeiture Act, forfeiture application orders affecting the defendant are to be made, then (subject to the possibility that those orders might be made in terms or on conditions designed to protect the interests of the defendant’s sons) the forfeiture rule will, or may, operate so as to extinguish any interest that the sons might otherwise have in their grandparents’ estates.

Against the possibility that they may be found to have an entitlement to the defendant’s share of the estates, each son has (by his affidavit in support of the plaintiff) disclaimed any interest in the estates: GE Dal Pont and KF Mackie, Law of Succession (2nd ed, LexisNexis Butterworths, Australia, 2017), paragraphs [7.42]-[7.46].

Accordingly, there is in this case no dispute about what should happen to the defendant’s share of his parents’ estates if an unconditional section 11 order were to be made. The only interests (other than the interests of the defendant) in competition with the interests of the plaintiff under her parents’ wills are the interests of the defendant’s sons, who have disclaimed any interest they might have. If the parents’ estates were to be administered on a partial intestacy then, with the defendant precluded from taking any share in the estates, the only beneficiary would ultimately be the plaintiff: Succession Act, sections 112 and 127.

By section 6, the Forfeiture Act expressly provides that a forfeiture modification order (under section 5 of the Act) can be made “in such terms and subject to such conditions as the Court thinks fit”.

There is no comparable, express power in the Act that authorises the making of a conditional forfeiture application order under section 11 of the Act.

However, section 86 of the Civil Procedure Act 2005 NSW provides, inter alia, that:

One of the questions for determination in these proceedings is whether, upon the proper construction of the Forfeiture Act and the Civil Procedure Act, the Court is empowered to make, or to decline to make, a forfeiture application order on terms and conditions and, if so, within what parameters.

There appear to have been only four reported cases in which section 11 of the Forfeiture Act has been the subject of a determination: Public Trustee v Fitter [2005] NSWSC 1188 (the subject of an unsuccessful application in Fitter v Public Trustee [2007] NSWSC 1487 for orders to be set aside); Guler v NSW Trustee and Guardian [2012] NSWSC 1369; Hill v Hill [2013] NSWSC 524; 11 ASTLR 121; and Estate of Raul Novosadek [2016] NSWSC 554.

Although Novosadek alludes to doubts about whether the operation of the forfeiture rule can be “modified” in the context of a section 11 application ([2016] NSWSC 554 at [25] and [57]-[59]), none of these cases otherwise involved discussion of whether a section 11 order can be made on terms and conditions, whether by reference to section 86 or otherwise.

In no reported section 11 case has an application for a forfeiture application order been refused. In two cases (Guler and Hill) the “offender”, through a tutor, consented to an order being made. In all cases, a major factor has been revulsion attending a perception of a violent or unnatural death.

Young AJ observed in Novosadek [2016] NSWSC 554 at [32]: “In circumstances where the Legislature has chosen to extend the application of the rule to persons found not guilty of murder by reason of mental illness, it would be odd if criminal or moral culpability were the touchstone in determining whether the forfeiture rule should be applied. However, what authority there is seems to take into account the significant actions of the killer and the public revulsion that a person who has committed such actions should reap a financial benefit from them.”

From their opposite perspectives, the primary submission of each party to these proceedings is that, upon a proper construction of the legislation, the Court has no power to make, or to withhold, a forfeiture application order on terms or subject to conditions.

In essence, three contentions are advanced. First, section 11 of the Forfeiture Act relating to forfeiture application orders is, in terms, unqualified by an express power such as appears in section 6 of the Act as a feature of the power (in section 5) to make a forfeiture modification order. Secondly, the legislative history of section 11 (as manifested in Hansard) is said to indicate a clear intention to implement the forfeiture rule where “justice” requires, unattended by a qualification about orders being made or withheld on terms and conditions. Thirdly, the fact that section 86 of the Civil Procedure Act appears under the heading “Part 6 - Case Management and Interlocutory Orders”, rather than in “Part 7 - Judgments and Orders”, is said to manifest an intention that section 86 be a power confined to interlocutory orders, not one applicable to final judgments or orders.

At my invitation, each party made an alternative submission against the possibility that the Court might be minded to make a forfeiture application order on terms or conditions. The plaintiff contended that an order should be made (in terms compatible with an open offer briefly made, but withdrawn by the defendant, during the course of these proceedings) that the defendant’s share of his parents’ estates pass to his sons rather than to him. The defendant submitted that an appropriate term on a forfeiture application order would be that some part of the money that the defendant would otherwise have received from his parents’ estates be held on trust for him to make provision for him while he remains in detention, or if and when he is released, or both.

Given the need for the Court, under section 11 of the Forfeiture Act, to make a determination whether justice requires the forfeiture rule to be applied to the defendant, it is necessary for me to form a view about the operation of the common law rule, and the proper construction and operation of the Act.

The application made by the plaintiff in these proceedings, expressly by reference to section 11 of the Forfeiture Act, is an application for a statutory form of order which, if made, will apply to the defendant, as a person who has unlawfully killed another person, a common law (that is, a non-statutory) rule of public policy.

An understanding of the common law is, for that reason, material to an understanding of the proper construction and operation of section 11.

The proper construction and operation of Part 3 (centrally, sections 10-13) of the Forfeiture Act, focussing upon “forfeiture application orders”, are informed by an understanding of the proper construction and operation of Part 2 (centrally, sections 5-8) of the Act relating to “forfeiture modification orders”. That is because there is a symmetry between the two types of orders.

Each type of order is defined by reference to the common law “forfeiture rule”. The making of each type of order requires the Court to be “satisfied that justice requires” the making of an order, and the consideration of common factors. Those factors are, in the broad: (a) the conduct of an “offender”; (b) the conduct of the person(s) killed by the offender; (c) the effect of the application of the common law forfeiture rule on “the offender and any other person”; and (d) such other matters as appear to the Court to be material.

Because the Court must be satisfied as to the “justice” of each case, the jurisdiction conferred by the Forfeiture Act cannot be exercised simply on the basis of an unsanctioned agreement between persons affected, or potentially affected, by the operation of an order made under the Act.

In contested proceedings for an order under the Act, there may be (as, in the present proceedings, there is) a need to be informed by a review of the law, generally, in order to address what is required by the “justice” of the case.

There is no single, universally correct statement of precise terms in which the common law “forfeiture rule” is to be expressed.

Subject to any future, contrary determination by the High Court of Australia, it is settled law in NSW that the forfeiture rule is a rule of public policy of general application. It cannot be characterised simply as an exercise of equitable jurisdiction, although an exercise of equitable jurisdiction might be called in aid of an application of the rule by imposition of a constructive trust: Troja v Troja (1994) 33 NSWLR 269; Edwards v State Trustees Limited [2016] VSCA 28.

In Gonzales v Claridades (2003) 58 NSWLR 211 at 220 [42] the Court of Appeal (constituted by Mason P, Beazley JA and Foster AJA) described the forfeiture rule in the following terms: “[It] is one of public policy, being an aspect of the maxim that a person shall not be permitted to profit from his or her own wrong. The rule seeks to deter serious wrongdoing by precluding unjust enrichment of the wrongdoer and those claiming through the wrongdoer.”

Variations in expression of the rule can be found even in judgments of judges who, in substance, agree with one another in disposition of a particular case. Those variations are probably best seen as different emphases on the facts of the particular case arising from a consideration of the complex array of ideas which provide a rationale for the rule and which inform its operation.

The principal authority in NSW, at an appellate level, on an application of the common law rule is Troja v Troja. In that case, the majority judges (Mahoney and Meagher JJA, Kirby P dissenting) explained the rule in different terms. So too did judges of the Victorian Court of Appeal in Edwards v State Trustees Limited [2016] VSCA 28.

Mahoney JA (at 33 NSWLR 294G-295B) articulated the rule in the following terms (with emphasis added):

In considering application of the principle to the facts of the case before him, Mahoney JA ( at 33 NSWLR 297 C-D) wrote (with emphasis added):

Meagher JA (at 33 NSWLR 299 B-C) explained the forfeiture rule in the following terms (with emphasis added):

As Meagher JA recorded, the origins of the rule are generally attributed to Cleaver v Mutual Reserve Fund Life Assurance [1892] 1 QB 147.

However, as Mahoney JA demonstrated, earlier origins can be identified. His Honour (at 33 NSWLR 295 C-E) both noted reference to Roman law and the English ecclesiastical courts in Re Tucker (1920) 21 SR (NSW) 175 at 177-178; 38 WN (NSW) 28 at 29 and confined his own historical analysis to a commencement with Amicable Society for a Perpetual Life Assurance Office v Bolland (Lord Fauntleroy’s case) (1830) 4 Bli NS 194; 5 ER 70.

The effect of the majority judgments in Troja v Troja was twofold. First, it called a halt to attempts by first instance judges to re-state the forfeiture rule in terms of a flexible general principle, attempts supported by Kirby P in his dissenting judgment in Troja. Secondly, by Meagher JA’s insistence that the common law was absolute and inflexible, the majority judgments moved Parliament to enact the Forfeiture Act.

The following extract from Meagher JA’s judgment (at 33 NSWLR 299 F-G) set the scene for legislative law reform (with emphasis added):

When it came, the legislative response to Meagher JA’s colourful rhetoric favoured the jurisprudential approach of “the equity judges” whose reasoning he rejected.

As enacted in 1995, the Forfeiture Act was, in substance, limited to what presently appear as sections 3-8 of the Act as amended in 2005. As first enacted, the Act simply allowed the Court to order that the operation of the forfeiture rule be modified.

Under the heading ”Overview of Bill”, the Explanatory Note to the Parliamentary Bill that became the Forfeiture Act 1995 explained the Bill in the following terms (with emphasis added):

In elaboration of what became sections 5 and 6 of the Forfeiture Act, the Explanatory Note provided as follows:

The second reading speech of the Attorney General for NSW (JW Shaw MLC QC) in support of the Forfeiture Bill (Hansard , Legislative Council, 25 October 1995, pages 2257-2258) provides an important exposition of the legislation (with emphasis added):

This exposition of the legislation is reminiscent of the reasoning of Young J in Public Trustee v Evans (1985) 2 NSWLR 188 at 192E-193E, where (as the Victorian Court of Appeal recognised in Edwards v State Trustees Limited [2016] VSCA 28 at [166]) his Honour conditioned the operation of the forfeiture rule upon an analysis of the justice of the particular case, in its particular factual setting, having regard to contemporary standards of social behaviour and moral judgement.

The reasoning in the Public Trustee v Evans was refined by Kearney J in Public Trustee v Fraser (1987) 9 NSWLR 433 at 444B-C by a more explicit invocation of equitable principles governing unconscionability and restitutionary principles relating to unjust enrichment.

In his dissenting judgment in Troja v Troja (1994) 33 NSWLR 269 at 282 et seq, Kirby J drew on the reasoning in Public Trustee v Evans and Public Trustee v Fraser, and the English and ACT legislation ultimately relied upon by the NSW Parliament in enacting the Forfeiture Act. His judgment, no less than those of Young and Kearney JJ, was, in substance, endorsed by the Parliament.

In the absence of appellate review, the common law forfeiture rule operative in NSW remains “absolute and inflexible” as found by the majority in Troja v Troja. However, its operation has been substantially qualified by the Forfeiture Act.

No Australian State or Territory other than NSW and the ACT presently has a Forfeiture Act, although questions about whether to enact one have been the subject of debate in more than one jurisdiction: eg, Tasmania Law Reform Institute, The Forfeiture Rule (December 2004); Victorian Law Reform Commission, The Forfeiture Rule (September 2014); Pike v Pike [2015] QSC 134 at [25].

The Forfeiture Act 1991 ACT provides for forfeiture modification orders, but not forfeiture application orders.

The NSW Parliament’s adaptation of the common law forfeiture rule has not been limited to empowerment of the Supreme Court to modify an application of the rule where it applies.

An amendment of the Forfeiture Act 1995, to extend the operation of the forfeiture rule to persons found not guilty of murder by reason of mental illness, was effected, somewhat obscurely, by provisions of the Confiscation of Proceeds of Crime Amendment Act 2005 NSW. The amendments to the Forfeiture Act appear, almost as an after thought, in the last schedule (Schedule 4) of the amending Act.

The Explanatory Note to the Parliamentary Bill described the object of the Bill to be “to enable the Supreme Court to apply the forfeiture rule (that is, the rule that prevents a person who is found guilty of murder from benefiting from the victim’s estate) to persons found not guilty of murder by reason of mental illness.”

In elaboration of this object, the Explanatory Note made the following observations as a preliminary to a fairly literal reproduction of the text of the sections of the Forfeiture Act presently governing the making of a forfeiture application order (with emphasis added):

There is in this exposition little fresh insight into the rationale and operation of the common law forfeiture rule as amended or proposed to be adapted by the Forfeiture Act, but it accords with decided cases.

The second reading speech of the Confiscation of Proceeds of Crime Amendment Bill was delivered by Graham West MLA (Parliamentary Secretary on behalf of the Attorney General, Bob Debus), as is recorded in Hansard (Legislative Assembly, 21 September 2005).

Insofar as it bears directly upon amendment of the Forfeiture Act, it is in the following terms (with emphasis added):

Lest it be thought that this speech deployed loose language in speaking of “mentally ill murderers” and “mentally ill people who commit serious offences”, notice should be taken of direct incorporation of the second reading speech in subsequent debate in the Legislative Council: Hansard, Legislative Council, 18 October 2005.

Although the legislative history of the 2005 amendments to the Forfeiture Act provides little elaboration of policy reasons for extension of the operation of the forfeiture rule to persons found not guilty of murder on the ground of mental illness, the terms of the amendments to the Forfeiture Act and the tone of the second reading speech in support of them suggest a reluctance to differentiate between conviction of an offence less than murder and a finding of not guilty on a charge of murder on the ground of mental illness. To quote a passage of the second reading speech not here extracted, the reforms embodied in the amendment bill (including amendments to the Forfeiture Act) were presented as reforms designed to “benefit victims of crime”… for this purpose, accepting that “mentally ill people [may] commit serious offences”.

Evidence given before Lloyd AJ, summarised in his judgment styled Public Trustee v Fitter [2005] NSWSC 1188 at [52](l)-(m) and [53], suggests that the 2005 amendments were the product of political representations made to the then NSW Attorney General (Bob Debus) on behalf of Homicide Victim Support Groups.

In his second reading speech on the Forfeiture Bill 1995, the Attorney-General, correctly, said of the common law forfeiture rule that “the motive of the slayer is irrelevant”… but the interests of justice required that the Court be given a statutory discretion to take into account all the circumstances of a case, including motive.

It is not altogether surprising that, in the fullness of time, questions of justice approached a similar point from opposite directions. It is not altogether surprising that “victims of homicide” should call for the justice of a case to be more closely examined notwithstanding that a death was caused by a person found wanting in capacity for the “guilty mind” required to constitute a crime. Although minds might differ about particular forms of order, there is a symmetry between the types of cases dealt with by sections 5 and 11 of the Forfeiture Act. That symmetry depends ultimately upon the Court being able to assess what “justice requires” by reference to particular facts.

In a Report styled The Forfeiture Rule published in September 2014, the Victorian Law Reform Commission made a recommendation (not yet the subject of legislation) in favour of a codified form of the common law forfeiture rule, retaining the existing exception to the common law rule for persons found not guilty by reason of mental impairment. In criticising legislation such as Part 3 of the NSW Forfeiture Act, the Commission (in paragraph 3.99) wrote the following (with footnote omitted):

The Commission (in paragraph 3.101) embraced an underlying public policy objective “that seeks to achieve a therapeutic aim by promoting an increased understanding and tolerance of mental illness that can give rise to a mental impairment”, and observed that “[exempting] persons found not guilty of an unlawful killing by reason of their mental impairment from the forfeiture rule is consistent with this policy aim.”

In discussion of options for development of the law leading to its recommendation against legislation such as Part 3 of the NSW Forfeiture Act, the Commission (in paragraphs 3.91-3.93) gave voice, in the following terms, to criticism of the three NSW judgments on section 11 of the Act then available (omitting footnotes, but with editorial adaptation and emphasis added):

The Commission’s criticism of NSW caselaw is a welcome contribution to development of jurisprudence governing the making of court orders vis a vis the operation of the forfeiture rule. It is, however, predicated on a policy preference for mentally ill “offenders” not to be subject to the forfeiture rule at all. In light of the NSW Parliament’s adoption of a contrary policy position, in Part 3 of the Forfeiture Act, the Commission’s criticism is deprived of force it might otherwise have in a NSW context. Contrary to the Commission’s preferred state of the law, Part 3 is predicated upon an assumption that an absence of criminal responsibility for an unlawful death does not necessarily, upon consideration of what justice requires in a particular case, carry with it an absence of adverse civil law consequences for the “offender”. In determining what justice requires the Court is bound by the legislation to consult interests beyond those of the “offender”, as well as those of the “offender”.

As in force on 3 December 2014 (when the parties’ parents were killed by the defendant) and as presently in force, the operative provisions of the Forfeiture Act (namely, sections 3-8 and 10-13) are in the following terms (with emphasis added):

Introduction. Via the definition of “forfeiture rule” in section 3 of the Forfeiture Act, sections 5 and 11 of the Act incorporate a definition of “benefit” that includes “any [family provision] entitlement under chapter 3 of the Succession Act 2006”.

The reference to the Succession Act in this definition of “benefit” was inserted upon commencement of the Succession Act in 2008, in substitution for a comparable reference to the Succession Act’s predecessor, the Family Provision Act 1982 NSW.

Forfeiture Application Cases. None of the reported cases on section 11 of the Forfeiture Act has addressed the implications of a reference to family provision “entitlements” in the statutory definition of “benefit”. Their focus has been elsewhere. In the handful of section 11 cases thus far decided, judges have cast an eye over factors (such as voluntary, intentional conduct preceding a death and the absence of remorse) which may bear upon an offender’s moral responsibility for his or her actions, taking into account social conditions and personal relationships generally.

Forfeiture Modification Cases. Some, but little guidance is available in judgments concerning the making of a forfeiture modification order under section 5 of the Forfeiture Act. More often implicitly than explicitly, the Court appears to have looked for: (a) an explanation for antisocial behaviour of an offender in a finding of diminished criminal responsibility associated with mental illness or abnormal social conditions; (b) an offender’s ongoing moral claim on the bounty of the deceased; and (c) an offender’s need for material assistance that can be met by restoration of benefits that, but for the forfeiture rule, he or she would enjoy.

This mode of reasoning differs from that characteristic of family provision jurisprudence because: first, it does not give primacy to a weighing up of competing needs of beneficiaries or others who have a moral claim on the deceased’s bounty; and, secondly, it is channelled through the prism of “justice” of the particular case in the context of consideration of the forfeiture rule, rather than a consideration of adequacy of provision for proper maintenance, education and advancement in life, a touchstone of the family provision jurisdiction.

In making a forfeiture modification order in Leneghan-Britton v Taylor [1998] NSWSC 218 Hodgson CJ in Eq analysed the justice of the case (involving manslaughter of a grandmother, with diminished responsibility associated with mental illness) by reference to a range of factors expressed in terms consistent with family provision jurisprudence. His Honour made an order so that the offender could receive a benefit provided for her in her grandmother’s will. He took into account the nature of the crime; a lack of premeditation on the part of the offender; an absence of intention on the part of the offender to profit from the crime; the existence of a strong moral claim on the bounty of the deceased, but for the crime; an assessment that the offender had been sufficiently punished by the criminal law; a finding that modification of the forfeiture rule would not provide any incentive to any other person to act as the offender had; and a finding that the making of a forfeiture modification order would not outrage the community. The order was made on the basis that the offender was seeking an indulgence from the Court. A factor implicit in the making of the order, and explicit in the making of costs orders, was that the Court’s orders could be made without other beneficiaries being disadvantaged by the relief granted to the offender.

Six months earlier, in R v R (Hodgson CJ in Eq, unreported, 14 November 1997) BC 9707619 his Honour made a forfeiture modification order in favour of a teenager who had killed his mother and his sister, pleading guilty to manslaughter. By the Court’s order the forfeiture rule was modified so that the young man was not deprived of his interest in his mother’s estate. The judge was satisfied that the teenager had been sufficiently punished by the criminal law; that the killings were substantially affected by his mental abnormality and diminished responsibility; that the offender’s domestic circumstances contributed to his commission of manslaughter; and that the application for a forfeiture modification order was supported by family members.

The idea that, in considering whether to make a forfeiture modification order (and, if so, upon what terms) punishment of an offender can be left to the criminal law – twice embraced by Hodgson CJ in Eq – also finds expression in Gzell J’s judgment in Batey v Potts (2004) 61 NSWLR 274 at [43].

In Permanent Trustee Company Ltd v Gillett [2004] NSWSC 278; 145 A Crim R 220 Austin J demonstrated a preparedness to make a forfeiture modification order, in combination with a grant of relief under the Family Provision Act 1982 NSW, designed to give effect to an agreement making provision for a family member (arguably responsible for the death of his father) who, by reason of an order made by the Mental Health Review Tribunal pursuant to the Protected Estates Act 1983 NSW, was the subject of a protected estate management regime.

In Strede v Eastwood [2003] NSWSC 280 Palmer J made a forfeiture modification order in circumstances in which he held that (unlike an exercise of family provision jurisdiction) needs of other beneficiaries could not be a sole and independent ground for refusing to make a forfeiture modification order. His Honour held that, on an application under the Forfeiture Act, competing needs of beneficiaries are only one of possibly many factors relevant to the question whether any (and, if so, what) modification order should be made: [44].

A Common Law Precedent. These judgments, under section 5 of the Forfeiture Act, might be supplemented by reference to a common law case pre-dating the legislation.

In Kemperle v Public Trustee (unreported, 20 November 1985) BC 8500411. Powell J, having found that the forfeiture rule did not apply to a person found not guilty of murder on the ground of mental illness (the deceased’s husband), granted to interests in competition with the “offender” family provision relief under the Testators Family Maintenance and Guardianship of Infants Act 1916 NSW.

In ordering that provision be made for various family members, his Honour moulded orders to ensure that provision was nevertheless made for “the offender”. That provision took the form of a lump sum entitlement (upon an intestacy) to a share of the deceased’s estate, the rationale for which was explained in the following terms: “So much of the Deceased’s husband’s future is suspect, that I feel that there should be provided to him some modest amount of capital to assist him, either, by enabling him to acquire such modest luxuries as can be obtained by those in custody, or, to provide for him, when he is released on license, a fund to which he may resort to meet any untoward emergencies to which he may be subject . ...”.

This measure of the need of a mentally ill person detained for an unlawful killing finds resonance in the current proceedings, although the facts of each case must be independently assessed.

General Observations. In considering what “justice requires” in the context of an application under the Forfeiture Act, the Court might draw upon learning acquired in the exercise of family provision jurisdiction. However, to the extent that that may be done in the absence of an application for family provision relief, it is reasoning by analogy only. Attention must remain focused on the nature, scope and purpose of the Forfeiture Act.

The statutory definition of “benefit”, in the context of the Forfeiture Act as a whole, is directed towards three ends.

First, it provides a means to address concerns (expressed before the legislation was enacted) about the availability of family provision relief in a case to which the common law forfeiture rule applies: Troja v Troja (1994) 35 NSWLR 182 (per Master McLaughlan). Those concerns highlight, not only the operation of the forfeiture rule, but also the jurisprudence persistently spoken of in terms of “conduct disentitling”: Cf, Price v Roberts [1992] NSWCA 191.

Secondly, it brings regulation of a right to apply for family provision relief within the ambit of the jurisdiction to make a forfeiture application order.

Thirdly, in combination with the requirement (in section 5(3)(c) and section 11(3)(c)) to have regard to “the effect” of the application of the forfeiture rule “on the offender or any other person”, it requires the Court, in the making of a discretionary decision under the Forfeiture Act, to consider any interplay between the Court’s family provision jurisdiction (discretionary in character) and the forfeiture rule (at common law, absolute in nature).

In this territory, a section 11 application has a potentially unique field of operation, with layers of complexity. That is because it relates to a person who has been found not guilty by reason of mental illness; a person who has killed without lawful justification but, equally, without criminal responsibility.

A lack of criminal responsibility, for a death might be accompanied by a lack of: (a) any form of moral culpability; (b) conduct capable of characterisation as “disentitling”; or (c) any estrangement in personal relationships with the deceased. It might also be accompanied by a perception that, however unjustified the killing may have been, a wise and just testator in the position of the deceased might recognise an ongoing obligation to make provision for the education, maintenance and advancement in life of the killer when all surrounding circumstances are taken into account. Another layer of complexity may be found in questions about whether, in the public interest, some part of the ongoing burden of maintenance of a mentally ill family member should be borne by resources of the family rather than the State.

These are not easy questions to untangle or resolve. They must be approached through an evaluative judgement about what “justice requires” in all the circumstances of the particular case.

The absence from the Forfeiture Act of an express power to make a forfeiture application order on terms and conditions, and the contrast with the existence of such a power (in sections 6 (1) of the Act) vis a vis a forfeiture modification power, does not of itself compel a conclusion that a forfeiture application order cannot be made on terms and conditions. Nor is such a conclusion compelled merely by the absence of discussion of orders made on terms and conditions in extrinsic materials evidencing the legislative history of the jurisdiction to make a forfeiture application order.

The ordinary meaning of section 86 of the Civil Procedure Act and section 11 of the Forfeiture Act, read together, supports the existence of a jurisdiction to make a forfeiture application order on terms and conditions.

To deny the existence of such a jurisdiction, one needs: (a) to elevate beyond the text of the two pieces of legislation an absence of an express power in Part 3 of the Forfeiture Act; (b) to read down section 86 (particularly its reference to “any other Act or otherwise”) as confined to “interlocutory orders” upon an assumption that a forfeiture application order is properly characterised, for all purposes, as a “final” order; (c) to ignore Parliament’s declared purpose in enacting the Forfeiture Act in the first place, to give the Court sufficient discretion to make orders in deserving cases, in the interests of justice, bearing in mind that there are varying degrees of moral culpability in unlawful killings; (d) possibly, to embrace a view that an unlawful killing by a criminally insane person is more heinous than an unlawful killing by a person to whom the criminal justice system attributes culpability falling short of a conviction for murder; and (e) to ignore a discretionary element in both Parts 2 and 3 of the Forfeiture Act inherent in the Act’s definition of “benefit” as including family provision entitlements.

In my opinion, a forfeiture application order can be made on terms and conditions. That is because:

The discretionary power of the Court to make a forfeiture application order, under section 11 (2) of the Forfeiture Act is conditioned upon the Court being “satisfied that justice requires the [forfeiture] rule to be applied as if the offender [defined by section 10 in terms that include the defendant in the present proceedings] had been found guilty of murder”.

Section 11(3) of the Forfeiture Act directs that, in determining whether justice requires the forfeiture rule to be applied, the Court is to have regard to the conduct of the offender; the conduct of the deceased person(s); the effect of the application of the rule on the offender or any other person; and such other matters as to the Court appear material.

One of those “other matters” may be the availability of an exercise of the Court’s family provision jurisdiction or a range of factors ordinarily taken into account upon an exercise of family provision jurisdiction. Another might be the availability, or otherwise, of an agreement within a family or other affected interests about what, if any, orders should be made. Yet another might be the availability or otherwise of orders able to be made on terms and conditions.

A determination that justice requires that “an order be made applying the [forfeiture] rule” to an offender, of itself, says nothing about the terms or conditions upon which an order should be made in the interests of justice. A forfeiture application order made on terms and conditions that do not negate its operation, but adapt it to the facts of the case, still bears the character of a determination that the rule apply. The words “as if the offender had been found guilty of murder” do not exclude the Court’s jurisdiction to make orders on terms and conditions but effect a forfeiture of the type to which the “forfeiture rule” (as defined by section 3 of the Forfeiture Act) provides.

If (as I apprehend) a section 11 order can be made on terms, an order can be made on terms that take into account such, if any, entitlements an “offender” might have to apply for a family provision order. That might facilitate a determination of whether any provision for the “offender’s” maintenance, education and advancement of life “ought” to be made, out of property entitlements subject to forfeiture, having due regard to well-established, accepted principles.

In approaching the legislative criteria for which chapter 3 of the Succession Act provides, the Court must endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, treating him or her for that purpose as wise and just, rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting statutory criteria directed towards the same end.

This could be of importance in the context, particularly, of an application under section 11 of the Forfeiture Act. That is because the family provision jurisdiction brings into focus particular personal relationships that may have involved a significant history of a family coping with mental illness, stoically recognising ongoing social obligations to a vulnerable member of family in circumstances which, but for family relationships, would have led to a termination of personal contact long before the intervention of a tragic death. Adapting OW Holmes’ aphorism (The Common Law, 1881, Lecture I) to a practical (not merely theoretical) engagement with law: The life of the law is not logic, but experience. Family bonds are not entirely, coldly rational.

The present case provides an example of this. There is evidence that:

Another interest liable to be consulted in the family provision context, although less noticed nowadays than it was in the early days of the jurisdiction’s development, is the public interest in looking to family assets to satisfy (or, at least, to contribute to satisfaction of) welfare needs of family rather than relying simply upon public expenditure to maintain those left without adequate provision for their maintenance, education or advancement in life.

Unless open to adaptation in the interests of justice, the tendency of the common law forfeiture rule is to pass over the nuances of actual experience of family life, emphatically but at a high level of abstraction, as if unnoticed. The criteria which the Forfeiture Act prescribes for decision making require focused attention to be paid to the facts of the particular case.

The statutory criteria (for which sections 11(2)-(3) provide) for the making of a forfeiture application rule find a parallel in the criteria (found in sections 5(2) of the Forfeiture Act) for the making of a forfeiture modification order. Similar criteria govern the making of an order revoking or varying a forfeiture modification order (Forfeiture Act, section 8(3)) or the making of an order for revocation of a forfeiture application order (Forfeiture Act, section 13(3)).

The criteria for the making of an order turn upon the Court being satisfied that “justice” requires the making of an order. Foundational though the word “justice” is to the law, and society generally, it has an elusive quality. Generally speaking, we speak of “justice”, but we more readily recognise “injustice”; an example of that can be found in the language used in the Explanatory Note published in aid of the Forfeiture Bill, 1995 extracted in paragraph 62 above. At a high level of abstraction, true justice may be what awaits us in the afterlife, leaving the highest expression of justice in this life the avoidance or minimisation of injustice. At the lower level of abstraction at which a court must generally operate, philosophical debates about the meaning of “justice” are recognised, but not allowed to paralyse decision-making, by the use of expressions such as “practical justice”, “the due administration of justice” or (as appears in the Forfeiture Act) “satisfaction” about what justice “requires” in the particular case.

The text of the Forfeiture Act, and its subject matter, compel an assessment by the Court of what “justice requires”, mediated by a judicial obligation to inquire whether the Court has the requisite level of satisfaction to make an order having particular effect under the law.

An application made under the Forfeiture Act is made in proceedings which are civil, not criminal, in character. Upon an assumption that an applicant for an order bears an onus of proving facts requisite to the making of an order, the onus to be applied is the civil onus of proof “on the balance of probabilities”, making due allowance for the gravity of the fact to be proved: Evidence Act 1995 NSW, section 140; Gonzales v Claridades (2003) 58 NSWLR 211 at 213[5]. Cf, Briginshaw v Briginshaw (1938) 60 CLR 336.

The object of the jurisdiction conferred by the Forfeiture Act is not punishment of an “offender”, but consideration of whether an offender should be denied a benefit consequential upon an unlawful killing. As Attorney-General Shaw noted in his second reading speech on the 1995 legislation, the common law rule may operate regardless of a killer’s motive or degree or moral guilt. In one of its dimensions, the common law rule exhibits the cold calculus of cause and effect: an unlawful killing causes a denial of consequential benefits.

An assessment of what “justice requires” for the making of an order under the Forfeiture Act must be relative to the facts of the particular case. However, such an assessment will commonly have an absolute dimension because any order made by the Court in disposition of an application under the Act must engage with profound questions about life, death, the capacity to make decisions, the capacity to accept responsibility for conduct, and community attitudes to such questions.

Because “justice” has profound but elusive qualities, the Forfeiture Act requires the Court to remain open to the competing narratives and nuances of the particular case, respecting the sanctity of life and rights and obligations arising from living in community.

The text of the Forfeiture Act cannot properly be glossed by substitution of different language for the text. Nevertheless, a working definition of the word “justice” in the context of the legislation, and in aid of its exposition, may be the word “fairness”. That is at best an approximation, and one that may suffer from a want of the gravitas that the word “justice” conveys: JR Lucas, On Justice (Clarendon Press, Oxford, 1980), pages 1-2. In any event, we speak not of fairness (justice) to one person or interest only, but of justice assessed in the light of considerations of all factors (legal, rational and moral) said, after due consultation of affected interests, to bear upon the decision to be made by the Court. One must look at an unlawful killing not only through the eyes of an “offender” but also through the eyes of the public and persons directly affected: Estate of Raul Novosadek [2016] NSWSC 554 at [66].

The legislation points in this direction, and endeavours to accommodate it, by deployment of the word “justice” without a formal definition of its metes and bounds, in the context of a common law rule of public policy open to adaptation, with a non-exhaustive list of statutory criteria, overlaid with a judicial obligation to act only on attainment of “satisfaction” about what “justice requires” and an accompanying discretion governed by the nature and scope of the legislation.

There is, in this, no licence for idiosyncratic decision-making. In any Forfeiture Act case, there is a requirement for something akin to what is required upon an exercise of family provision jurisdiction: a decision informed by considerations of wisdom and justice (to use the composite expression deployed in family provision jurisprudence) and contemporary community values.

As a child of his deceased parents, the defendant at all material times has had standing to apply (under chapter 3 of the Succession Act) for family provision relief from their estates. He has not at any time made such an application. In the course of these proceedings, his counsel expressly disclaimed an intention on his part to do so.

An application for family provision relief made now would require a court order granting the defendant an extension of time within which to apply. This is because, absent an extension of time, an application must be made within 12 months of the death of the person in respect of whose estate the application is made. That time has passed. The present proceedings have been litigated upon the basis of an absence of a claim for family provision relief.

It is common ground that the defendant is impecunious. Apart from his interest in his parents’ estates, he has no significant property.

He continues to live in detention, under State care, pursuant to orders made by Campbell J at the conclusion of the criminal proceedings. There is no evidence suggesting that he will be released from detention any time soon. Although there is evidence he does not suffer from any significant cognitive problems, Campbell J’s judgment and his continued detention suggest that he remains a danger to the public.

During the course of these proceedings, the defendant made an open offer to the effect that he would submit to “forfeiture” of his interest in his parents’ estates provided that his share of the estates passed to his sons. Upon an intimation that they proposed to pass to the plaintiff any estate property they receive, the defendant withdrew his offer.

The defendant gave no evidence at his criminal trial, and he has given no evidence in these proceedings. He did not, by swearing an affidavit, subject himself to the possibility of cross examination.

His case in the current proceedings has been conducted largely on the basis that, because he bears no criminal responsibility for the deaths of his parents, and because there is evidence of mental illness caused otherwise than by personal fault on his part, the Court should not make forfeiture application orders, the effect of which would be to punish him for conduct for which he has been held not to be criminally responsible.

That basic case has, however, been supported by evidence of two types of material need of the defendant unlikely to be satisfied otherwise than out of the estates of the deceased parents. First, although in detention, the defendant has opportunities to ameliorate his daily life by the acquisition of modest consumables from private resources. Secondly, if it should be the case, at some future time, that he is released from detention, he has no significant, accumulated assets upon which to draw in establishing a new life.

In the course of these proceedings, there has been no explicit expression of remorse on the part of the defendant for the, admittedly sad, deaths of his parents.

The deaths of the parties’ parents and the trauma of subsequent legal proceedings have profoundly soured personal relationships.

The plaintiff lives in fear of the defendant should he be released from detention. She is not quite satisfied with the outcome of the criminal proceedings because of her perception of moral culpability on his part, and a persistent belief that he deserves punishment. She cannot comprehend why her aunt would intervene in her brother’s interests as a tutor, and she resents that intervention.

The aunt, for her part, complains that she has been forced to bear acrimony and abuse emanating from the plaintiff’s side of the family for doing that which she apprehends the deceased parents (her brother and her sister-in-law) would themselves have wanted done for their mentally ill son.

The parties’ invitation to determine the current proceedings by reference to findings of fact made by Campbell J in R v Settree (No. 2) [2016] NSWSC 1079 carries with it an opportunity to act upon his Honour’s findings without repeating them in detail. Particular reference is, however, made to paragraphs 4-5, 7-11, 28, 42-77, 82, 86, 91 and 94-95.

At paragraph 5 of his Honour’s reasons for judgment, he sets out in full formal admissions made by the defendant pursuant to section 184 of the Evidence Act 1995. It is sufficient, for present purposes, to note that those admissions include an admission that, at the time the defendant fired his loaded shotgun at his mother, it was his intention to kill her; and, at the time he fired the shotgun on two occasions at his father, it was his intention to kill him as well.

For an account of the events directly associated with the defendant’s killing of his parents, counsel for the plaintiff specifically drew attention to paragraphs 7-11 of Campbell J’s judgment:

Upon an assessment of the defendant’s criminal responsibility (or, more accurately, his lack of criminal responsibility) for the killings, Campbell J found that, at the time the defendant killed his parents, he was labouring under a delusional belief system which was symptomatic of paranoid schizophrenia. This “left him unable to reason about his actions and beliefs with even a moderate degree of sense and composure in the relevant sense because his capacity to do so was overborne by his grievance delusion about his parents’ oppression of him”: [2016] NSWSC 1079 at [76]-[77]. Although “he may have known that killing his parents was against the law he felt justified in doing it because of what he perceived to be their mistreatment of him [; that] is to say he was at the time of the shooting labouring under an active grievance delusion directed at his parents”: [2016] NSWSC 1079 at [72] .

Although it was long appreciated that the defendant had a mental health problem (for which illness he sought treatment, which illness contributed to the breakdown of his marriage and which illness left him unable to settle in employment), the precise nature of his illness was not diagnosed until after he was taken into custody; and, even then, the diagnosis was but slowly reached: [2016] NSWSC 1079 at [33] and [73].

At the time of his criminal trial, the defendant was aged 48 years: [2016] NSWSC 1079 at [42]. Viewed longitudinally, his undiagnosed illness became manifest at around the age of 30: [2016] NSWSC 1079 at [49]. His delusional thinking may have dated back to when he was 14 years old: [2016] NSWSC 1079 at [74]. Although, as an adult, he had a history of drug taking and excessive alcohol consumption, his schizophrenia may have been “drug exposed rather than drug induced”: [2016] NSWSC 1079 at [49].

As a product of his mental illness, he had a history of violence towards family members which, for the most part, they patiently endured: [2016] NSWSC 1079 at [44]-[46].

In observations which find an echo in supplementary evidence adduced in the current proceedings, Campbell J recorded that evidence of the plaintiff (as she now is) suggested that the defendant (then the accused) had a history of violence and threats to his family, particularly towards his mother; but that, despite this, the mother, by the accounts of close family and friends, was always supportive of her son, procuring references on occasions when he ran foul of the law. His mother did this for him even when he was charged with assaulting her. His father, according to the plaintiff, thought that the mother was too indulgent of the defendant, and wanted him to be more self sufficient. In the weeks prior to his death, the father harboured fears that the defendant would commit suicide: [2016] NSWSC 1079 at [45].

It detracts not at all from the findings made by Campbell J to record that each of the defendant’s sons deposed to conversations with their father in which, well before the fateful day of his parents’ deaths, the defendant expressed a desire for the death of his parents so that he could have his share of their estates. Neither son appears to have believed that the defendant was seriously capable of doing what he did.

In a Victim’s Impact Statement placed before Campbell J in the criminal proceedings, and in affidavit evidence in these proceedings, the plaintiff has spoken of the profound, devastating effect of her parents’ deaths upon her personally, in her conduct of the family business in which she worked with her parents before their deaths, and in her local community.

In a countervailing Victim’s Impact Statement, and in affidavit evidence generally, the defendant’s aunt (his tutor) provides another narrative about the profound, devastating effect of tragedy flowing from undiagnosed mental illness.

In an affidavit sworn on 27 October 2017 the plaintiff, within the context of broader family relationships, deposed to conversations she had with her parents:

On 17 November 2008 the defendant’s mother wrote a letter to his sons, which she entrusted to their mother (the defendant’s former wife) with a discretion as to whether or not the letter should be delivered to the boys. It includes the following:

The mother’s empathy for the defendant was not hers alone. That is evident in a letter dated 8 December 2008 which the plaintiff wrote to her aunt (the defendant’s tutor) at a time when tensions between them had not been aroused by common tragedy:

In her affidavit sworn 4 December 2017 the defendant’s aunt (tutor), deposes to a conversation she had, inter alia, with the plaintiff at the time of the defendant’s criminal trial. She says the plaintiff said to her, and to others then present: “If mum was here she would still be looking after Scott regardless of what has happened.“

In the same affidavit the aunt (tutor) deposes to the following (here editorially adapted):

An assessment of “whether justice requires that the forfeiture rule be applied to the defendant as if he had been found guilty of murder” requires the Court to have regard to the several criteria specified in section 11(3)(a)-(c) of the Forfeiture Act and, as provided for in section 11(3)(d), such other matters as to the Court appear material .

A convenient starting point is an acknowledgement of the character of, and rationale for, the common law forfeiture rule. Having noted the observations of Mahoney and Meagher JJA in Troja v Troja (1994)33 NSWLR 269 at 294-295, 297 and 299 (extracted in paragraphs 53-55 above), it is sufficient to focus upon the declaration in Gonzales v Claridades (2003) 58 NSWLR 211 at 220[42] extracted in paragraph 50 above. The forfeiture rule is a rule of public policy. It is an aspect of the maxim that a person not be permitted to profit from his or her own wrong. It seeks to deter serious wrongdoing by precluding the unjust enrichment of a wrongdoer and those claiming through the wrongdoer.

In determining whether “justice requires” the making of a forfeiture application order, the Court can, and should, take into account the defendant’s lack of criminal responsibility for the unlawful killings of his parents.

However, by its enactment of Part 3 of the Forfeiture Act, Parliament has determined that a lack of criminal responsibility may not be enough, in a particular case, to exempt an “offender” from civil consequences of his or her conduct. A finding of not guilty of murder by reason of mental illness is the jurisdictional foundation for a section 11 application. It is not, of itself, an exculpatory fact.

The Court needs to consult the interests of persons affected by the conduct of an “offender” (including, but not limited to, the “offender”) and the public interest.

This must be done bearing in mind the public policy character of the forfeiture rule, its reflection of the maxim that a person should not be permitted to profit from his or her own wrong, the deterrent object of the rule, and the associated object of precluding unjust enrichment.

The Court should be slow to impose civil consequences upon a person found not to have been criminally responsible for unlawful killings recognising, however, that the interests of justice are broader than the criminal law.

As required by section 11(3) of the Forfeiture Act, I have regard specifically to the following matters, all of which are set in the context of this judgement, read as a whole:

Taking these various matters into account, in all the circumstances of the case, I am satisfied that justice requires that the forfeiture rule, in some form, be applied to the defendant as if he had been found guilty of murder attending the deaths of his parents. Allowing for the defendant’s experience of mental illness, and the absence of criminal responsibility for the deaths of his parents, a primary factor telling in favour of an order of any type being made is the pre-meditated, violent and merciless character of the killings, reinforced by a lack of remorse. To adapt Young AJ’s observations in Novosadek (as quoted in paragraph 37 above), a factor to be taken into account is public revulsion that a person who has engaged in such conduct should reap a substantial benefit from it.

Drawing support from the analogous example of Kemperle v Public Trustee (explained in paragraphs 99-101 above), I nevertheless conclude that an allowance of some provision in favour of the defendant, within parameters such as those described by Powell J, is consistent with contemporary community standards of justice focussed on dealing with mental illness in a family context.

The form of forfeiture application orders that justice requires is one conditioned upon modest provision being made in favour of the defendant (administered via a trust or managed via protected estate orders), with terms requiring provision to be made, for his maintenance, education and advancement in life taking into account all the circumstances of the case, as now known.

Particular factors which, in my opinion, tell in favour of conditional forfeiture application orders are those listed in paragraphs 120-122 above. At the time he killed his parents the defendant suffered from an undiagnosed form of mental illness which he, in common with his parents, had endeavoured to have identified and treated. There is evidence that his resort to alcohol and drugs in the several years before his parents’ death may have been a product, rather than a cause, of his mental illness. The parents themselves, particularly his mother, supported the defendant through thick and thin as he struggled to come to terms with his illness. Members of the family, generally, were aware of his propensity for violence and threats against his parents but, in common with the parents (or, at least, the mother), they never imagined that he was capable of doing what he did. Members of the family, including the plaintiff and the defendant’s tutor, have from time to time expressed the view that the defendant’s parents, subjectively, would not have wanted the defendant left without provision from their estates, even in light of his role in their deaths. There is a public interest element in looking to family assets for a contribution towards the defendant’s ongoing maintenance, education and advancement in life.

If, as I propose, forfeiture application orders are to be made predicated upon provision being made for the defendant’s maintenance, education and advancement in life, then, subject to any further order of the Court, that provision should be administered, or managed, by the NSW Trustee or another professional trustee/manager able to stand apart from members of the defendant’s family. The family should be able to conduct their lives (including any contact they may voluntarily have with the defendant) uncomplicated by ongoing monetary ties.

The amount of provision made for the defendant should, in these circumstances, include an allowance for fees which, in the ordinary course of business, might reasonably be chargeable by the NSW Trustee or another professional trustee/manager.

If, as I propose, the form of provision made for the defendant is to be administered through a trust, the defendant’s beneficial entitlement to trust property should be subject to a condition that he not terminate the trust without the leave of the Court, and ancillary terms. This is necessary to cater for the possibility that the defendant might, at some future time, contend that he is entitled, under that “the rule in Saunders v Vautier” (authoritatively stated in CPT Custodian Pty Limited v Commissioner of State Revenue (Vic (2005) 224 CLR 98 at 119[47]), to terminate the trust because no longer incapacitated by mental illness.

The object of the proposed condition, and ancillary terms, is not to keep the defendant out of property to which he may be entitled, but to provide a mechanism to enable any entitlement to terminate the trust, or to deal with trust property, to be dealt with in an orderly fashion. But for a need to provide a regulatory mechanism, the defendant’s entitlement to the provision to be made for him should be regarded as absolute. Any unconsumed balance of property still held on trust at the time of the defendant’s death should pass to those persons who may be entitled to his deceased estate.

The absence of any application by the defendant for a family provision order under chapter 3 of the Succession Act should not be held against him in moulding an analogous form of relief as a condition imposed on the making of forfeiture application orders. But for the making of discretionary decisions under section 11 of the Forfeiture Act, the defendant stands to inherit property valued at about $1 million – an inheritance unlikely to be supplemented by a grant of family provision relief. The absence of an application for family provision relief is sufficiently explained by that practical reality. Within the context of an exercise of jurisdiction under the Forfeiture Act, relief granted against the unconditional operation of forfeiture application orders is a function of the Court’s determination to make such orders upon the exercise of a discretionary Forfeiture Act jurisdiction rather than a function of an exercise of family provision jurisdiction. Relief allowed to the defendant in the form of conditions imposed on the making of forfeiture application orders affects no interests in the estates of the parties’ deceased parents beyond those which, but for the making of the Court’s orders, would have been the defendant’s entitlement to inherit.

In determining that justice requires conditional forfeiture application orders as here described, I have kept in mind: (a) the rationale of the forfeiture rule found in the description of the rule in Gonzales v Claridades, extracted in paragraph 50 above; and (b) the nature, scope and purpose of the Forfeiture Act, predicated upon adaptation of the forfeiture rule to accommodate what justice requires on the facts of the particular case.

The fact that the defendant was found not guilty of murder on the ground of mental illness (and, so, relieved of criminal responsibility) is not inconsistent with characterisation of the deaths of his parents as unlawful or, in the interests of justice, denying him civil benefits flowing from conduct which was plainly wrong.

A refusal to make a forfeiture application order would be an unjust determination of these proceedings insofar as a consequence would be that the defendant would obtain a benefit (of the order of $1 million) from conduct which, although not viewed as a crime, would generally be regarded by fair-minded members of the community as profoundly wrong.

The Court cannot assume that the making of a forfeiture application order in respect of a mentally ill person will have no deterrent effect on others similarly ill, lacking insight. It may well do, and that possibility presents itself as an element of what “justice requires” in the making of an order.

In any event, the making of a forfeiture application order may have a more broadly based deterrent effect. A reasoned application of the forfeiture rule in the case of a person found not guilty on the ground of mental illness may serve as a deterrent in the general community – involving, as it does, reinforcement of the law’s abhorrence of an unlawful killing, and affirmation of the truth that conduct has consequences even if not criminal in character. A mental illness defence to a charge of murder is no sure means of avoiding the operation of the forfeiture rule, in the interests of justice.

The making of a forfeiture application order is not a vehicle for punishment of a person found not guilty of murder on the ground of mental illness, or for compensation of his or her victim: Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59 at 63-64, affirmed on appeal (1969) 70 SR (NSW) 407. Nor is it (as the report of the Victorian Law Reform Commission apprehended) a vehicle for denigration of such a verdict. It is a means by which, in the interests of justice, in civil proceedings, a person may be denied benefits flowing from his or her wrongful conduct.

Community support for the mentally ill (in the criminal justice system, in therapeutic treatment and in everyday life) need not extend to tolerance of wrongful conduct without civil consequences. The fact that a mentally ill “offender” lacks insight to recognise a wrong does not oblige the community to be blind to the wrong, or to acquiesce in the “offender” receiving consequential benefits.

The legislative history of the Forfeiture Act, as enacted in 1995, manifests a determination on the part of the Parliament to bring to the law a regard for justice responsive to the facts of the particular case. The amendments to the Act effected in 2005 are, in true perspective, an extension of that same determination.

At the time this judgment was reserved for consideration, the parties made submissions about orders for the costs of the proceedings.

Prima facie (by reference to section 98 of the Civil Procedure Act, 2005 NSW and rule 42.1 of the Uniform Civil Procedure Rules 2005 NSW), the costs of the proceedings should follow the event.

However, the parties agreed that, whatever the outcome of the proceedings, the costs of the plaintiff (as her parents’ executrix) should be paid out of the estates on the indemnity basis.

The plaintiff also recognised, early in the proceedings, that a reasonable allowance should be made out of estate assets for the defendant (as an incapacitated person, necessarily to be represented by a tutor) to have the benefit of legal advice and legal representation: Guler v NSW Trustee and Guardian [2012] NSWLR 1369 at [3]; Smith v NRMA Insurance Ltd [2016] NSWCA 250.

In making an order for the defendant’s costs to be paid out of his parents estates, I am conscious that he was a necessary contradictor to the plaintiff’s application for forfeiture application orders; that, because he is an incapacitated person, it was necessary for the proceedings to be conducted on his behalf by a tutor; and that, by analogy with protective proceedings, the Court should have regard to what is a proper order for costs (CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640E), not merely the rule that the costs of adversarial proceedings ordinarily follow the event.

I acknowledge that at least some part of the legal work undertaken on behalf of the defendant was undertaken (to paraphrase Clyne v NSW Bar Association (1960) 104 CLR 186 at 203-205) on a “speculative” basis; but that fact does not bear upon my decision-making in the absence of any suggestion of a fee uplift contingent upon success.

In my assessment, the defendant (and his tutor) should have the benefit of an order for the payment of costs out of the estates of the deceased parents, assessed on the ordinary basis, not the indemnity basis. This accords with the practice of the Court in family provision cases, in which an executor is ordinarily allowed his, her or its costs out of an estate on the indemnity basis, and an applicant for family provision relief is ordinarily allowed costs out of the estate on the ordinary basis.

In ordering that the defendant’s costs be paid out of the deceased parents’ estates, I am not to be taken as having approved the rates of fees charged by the defendant’s lawyers to his tutor or particular items of work undertaken by them pursuant to their retainer by the tutor. During interlocutory processes leading to the final hearing of the proceedings, and during the final hearing itself, I expressed concerns about the course of the proceedings on the defendant’s side of the record before, late in the piece, senior counsel was retained to appear for the defendant. Senior counsel’s involvement in the proceedings brought to the defendant’s case a discipline not earlier apparent.

Having determined that the defendant should have the benefit of a costs order (charged, effectively, against what would have been his share of his parents’ estates had it not been for the operation of the forfeiture rule), in the absence of any agreement between the parties as to what costs should be allowed the interests of justice are best served by my leaving to a costs assessor questions about the reasonableness, or otherwise, of work done, fees charged and costs recoverable.

I do not order that costs of the defendant payable out of estate assets be capped (Civil Procedure Act 2005, section 98; Uniform Civil Procedure Rules 2005, rule 42.4), lest an injustice is inadvertently done to the defendant’s tutor. Nobody has invoked the Court’s general jurisdiction to regulate the quantum of professional charges (Woolf v Snipe (1933) 48 CLR 677 at 678-679) or to make a personal costs order against a practitioner (Civil Procedure Act, section 99).

Subject to allowing the parties to be heard as to the form of the orders to be made, and securing the consent of the NSW Trustee or another suitable person to act as trustee of a fund established as a vehicle for provision being made for the defendant, I propose to make orders to the following effect:

If the NSW Trustee does not consent to act as trustee of the proposed trust fund, I will consider the making of (partial) protected estate management orders under sections 40-41 of the NSW Trustee and Guardian Act 2009, committing management of the defendant’s beneficial interest in the fund to the NSW Trustee.

The practice of the Court, and the NSW Trustee, is that the NSW Trustee’s consent is not required as a condition of management of a protected estate being committed to the NSW Trustee: Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245 at [155] and [181].

If the NSW Trustee recommends protected estate management orders as better suited to the facts of the case than establishment of a trust I will, in consultation with the parties, consider that recommendation before making orders in disposition of the proceedings.