Application of the ‘forfeiture rule’

A general principle in the law is that an offender should not benefit from their wrong. In a case where a person kills another then, that person should not obtain a benefit brought about by the death.

The Victorian Supreme Court of Appeal recently dealt with the application of this principle in a matter of defensive homicide. The applicant, who pleaded guilty to one count of defensive homicide was sentenced to seven years imprisonment with a non-parole period of four years nine months. There was a history of domestic abuse between the parties, both bearing responsibility. She was also the primary beneficiary under the deceased’s will. The question put before the Court by criminal lawyers was whether she was entitled to benefit under the will, or forfeited to deceased’s daughter?

In deciding this matter, Whelan JA concluded as follows:

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 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.

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.

The applicant’s appeal was refused and she received no benefit under the will.

Tom Isaacs

Tom Isaacs

Bachelor of Laws with Honours - LLB(Hons)

Tom has been part of the firm for the past 10 years, working initially as a law clerk and now as a fully qualified Solicitor. He completed his Bachelor of Laws with Honours at Deakin University, and undertook his legal training at the Leo Cussen Insititute where he was president of his class. Tom appears regularly at Magistrates' Courts, both metropolitan and in regional Victoria.