Manslaughter & the Conditional Forfeiture Rule

I have posted before about the forfeiture rule, which is a principle that prevents a person from benefiting from their wrongful conduct and can be described as a fundamental principle of justice. At its heart is the notion that it would be unconscionable to allow a killer to enjoy an unjust enrichment.

Courts permit no dilution of the rule and therefore the forfeiture rule applies following being convicted of murder or manslaughter regardless of the facts of the case. In New South Wales legislation was passed to amend the rule to take account of the variety of circumstances in which a homicide may occur.

Wendy Robinson and Scott Settree are the only children of Donald and Margaret Settree.

In December 2014 Scott shot his parents at close range following a minor domestic dispute with his father, Donald. The dispute escalated from an argument to a physical assault by Scott on his father; a demand by his mother Margaret that he leave the family home; followed by Scott shooting Margaret and then Donald in quick succession using a shotgun he kept in his bedroom.

On trial for the murder of his parents, the Court determined that Scott was not guilty of murder by reason of mental illness, ordering that Scott 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.

Donald and Margaret left reciprocal Wills (often called mirror Wills) dated 23 February 1993 which provided that the whole of each estate passes to their children in equal shares as tenants in common.

The combined value of Donald and Margaret’s estates (including superannuation and life insurance entitlements) was in the order of $2,000,000.

Each will contained 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.

Scott has two adult sons, respectively born in February 1996 and April 1997.

Wendy applied under section 11 of the Forfeiture Act 1995 NSW, for orders that the “forfeiture rule” apply to her brother, in the administration of the deceased estates of their parents, each of whom was shot dead by the defendant, without lawful justification, on 3 December 2014.

As Scott was ‘a person under legal incapacity’ his aunt was appointed as his tutor to defend the proceedings on his behalf; initially, her position was that she would consent to Scott’s forfeiture provided his inheritance passed to his two sons. 

However, Scott’s two sons did not want his inheritance and wanted it to pass to Wendy.

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”.

Courts have held that the forfeiture rule applies to cases of murder and manslaughter, but not in the case of a person found not guilty of murder on the ground of mental illness.  The rule applies to intestate estates as well as those governed by a will.

In cases where an unlawful killing that does not constitute murder the Forfeiture Act empowers the Court if satisfied that that “justice” so requires:

  1. to make a “forfeiture modification order” to modify the effect of the forfeiture rule where it otherwise applies (sections 5-6); and
  2. to make a “forfeiture application order” where a person who has killed another person has been found not guilty of murder by reason of mental illness (section 11).

In all cases, where the Court has applied section 11 a major factor in its application has been revulsion attending a perception that the person who committed the actions causing a violent or unnatural death should reap a financial benefit from those actions.

In applying these various matters, in all the circumstances of the case, the Court was satisfied that justice requires that the forfeiture rule, in some form, be applied to Scott as if he had been found guilty of the murder of his parents.

Owing to Scott’s experience of mental illness, and the absence of criminal responsibility for the deaths of his parents, a primary factor in favour of the Court making an order of any type is the pre-meditated, violent and merciless character of the killings, reinforced by a lack of remorse.

The Court ordered that

  1. Scott is allowed provision for his maintenance, education and advancement in life in the sum of  $50,000 out of the estate of each of his parents (a total of $100,000) to be held on trust by the NSW Trustee (together with any interest accruing thereon pursuant to these orders)
  2. Pursuant to section 11 of the Forfeiture Act 1995 NSW, that the forfeiture rule apply to the defendant as if he had been found guilty of the murders of Margaret and Donald.

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