Unlawful Killing & the Forfeiture rule

In April 2012 Jemma Elizabeth Edwards pleaded guilty to defensive homicide. Jemma’s victim was her husband James, who was killed on 18 January 2011. James will of November 2004 left the whole of his estate to Jemma provided she survived him.

In May 2011, State Trustees’ obtained a grant of probate and 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 court applied the ‘forfeiture rule’ where a killer is prevented from taking a benefit brought about as a direct result of that killing. Accordingly, James was intestate and the estate was distributed according to intestacy rules to his daughter Megan.

Jemma appealed arguing that in the circumstances 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 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.

Over the last 20 years, Courts in several jurisdictions have considered the basis and scope of the forfeiture rule. It is worth noting that a position has been argued that as a matter of public policy the rule should not necessarily apply in circumstances occasioned by domestic violence. However this position has been rejected so that the rule was to be applied in the case of manslaughter at the hands of a beneficiary. Whilst others have found that a test should be applied was whether the taking of a benefit by a person through his crime would be unconscionable as representing an unjust enrichment. Similarly 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 beneficiary, or where the beneficiary had killed his or her will maker in order to obtain an advantage.

Jemma had a history of psychiatric illness, had been admitted to psychiatric care and had been subjected to a community treatment order. James was a heavy drinker with a lengthy and well-documented history of inflicting violence on his daughter and his mother.

Throughout their relationship police had been called to intervene in domestic disputes between Jemma & James. On each such occasion, James was found to be drunk, abusive and violent.

In September 2005, Jemma had stabbed James several times with a corkscrew and knife. Jemma pleaded guilty to one count of assault occasioning actual bodily harm; and was given a suspended sentence of one year and nine months.

On the night of 17 January 2011, a serious domestic dispute took place between Jemma and James. At about 10am on the following morning, Jemma called Ambulance Victoria. James had died following sustained multiple stab wounds.

Jemma told police that two men, both of whom had fled the scene, killed James. Jemma was arrested but was unfit to be interviewed; she was detained at a Psychiatric Unit untll the end of January. On that day, she confessed to killing the deceased but told police she had acted in self-defence.

Jemma was charged with murder, pleaded guilty to one count of defensive homicide, and was sentenced to seven years’ imprisonment with a non-parole period of four years and nine months.

In assessing the relevant cases the Court held that, at the very least, the rule would be applied where a person is guilty of ‘deliberate, intentional and unlawful violence, or threats of violence’; it applies in circumstances in which there is no legal justification for the killing. 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.

For these reasons the Victorian Supreme Court dismissed Jemma’s appeal and James daughter Megan was the beneficiary of the estate.