FEDERAL COURT OF AUSTRALIA
NSD 823 of 2017
Date of judgment:
3 December 2018
EQUITY – forfeiture rule
Criminal Code (Qld), s 304A
Youth Justice Act 1992 (Qld), ss 140, 176
Re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research  1 WLR 451
Edwards v State Trustees Ltd  VSCA 28; 257 A Crim R 529
Helton v Allen  HCA 20; 63 CLR 691
Nicholas v The Queen  HCA 9; 193 CLR 173
Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland  FCA 963
Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland (No 2)  FCA 1146
Troja v Troja and the Public Trustee (1994) 33 NSWLR 269
Date of last submission:
17 August 2018
New South Wales
National Practice Area:
Commercial and Corporations
Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:
Counsel for the First Respondent:
Mr R Whiteford
Solicitor for the First Respondent:
Office of the Official Solicitor of the Public Trustee of Queensland
Counsel for the Second Respondent:
The Second Respondent did not appear
DATE OF ORDER:
3 December 2018
THE COURT DECLARES THAT:
1. Subject to any proper costs of the Public Trustee of Queensland, Mary Jane Perks and Kevin David Perks are beneficially entitled to the balance of the funds paid into Court by the applicant Swiss Re Life & Health Australia Ltd in respect of life policy number 410264209.
THE COURT ORDERS THAT:
2. The proceeding be re-amended to refer to the second respondent by name.
THE COURT DIRECTS THAT:
3. The said funds be paid to the Public Trustee of Queensland for distribution in accordance with the above declaration.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This matter commenced in the Insurance List in May 2017 by application of Swiss Re Life & Health Australia Ltd. The first respondent was the Public Trustee of Queensland. The second respondent was Mitchell Allen David Perks.
2 The tragic circumstances of this matter concern the violent deaths of a mother and a sister stabbed to death by their son and brother. When the events occurred the son and brother was 16 years old. He was schizophrenic, and had suffered mental illness for some years. Despite his minority at the time of the events, after pleading guilty to manslaughter he was sentenced as an adult in Queensland. During the course of these proceedings, I had the names of the parties and persons involved anonymised because of the age of the offender. However, given that he was sentenced as an adult with no confidentiality as to his identity or the sentencing remarks, it is unnecessary to anonymise these reasons and I will reinstate the name of the second respondent.
3 During the course of these proceedings, the second respondent (the son and brother) was in custody. The Public Trustee has been responsible for serving all relevant documents on him. As I mention below, I sought the aid of pro bono counsel from the Queensland Bar for assistance as an amicus curiae to put what could be put in the interests of the second respondent concerned with the operation of the forfeiture rule. The Court was assisted by the helpful submissions of the now President of the Queensland Bar, Ms R M Treston QC. The Court is grateful for that assistance. Such assistance of the Bar epitomises the independent Bar’s service to the Court and to the public, and its intimate involvement in the judicial process, and so in the exercise of judicial power itself: Nicholas v The Queen  HCA 9; 193 CLR 173 at  per Gaudron J.
4 The application was made by Swiss Re under s 215 of the Life Insurance Act 1995 (Cth) for a declaration to protect itself in respect of 50% of a policy of life insurance issued by it over the life of Mrs Melanie Perks (the primary life insured) for her benefit (as policyowner). The two nominated beneficiaries, as to 50% each, in the “Life Benefit Amount” were Ms Ebonie Perks (the daughter of Mrs Perks, the policyowner) and the second respondent, Mitchell Perks (Mrs Perks’ son).
5 Section 215 is in the following terms:
215 Power to pay money into Court
(1) A life company may pay into the Court any money payable by the company in respect of a policy for which, in the company’s opinion, no sufficient discharge can otherwise be obtained.
(2) Payment of the money into the Court discharges the company from any liability under the policy in relation to the money.
(3) Any money paid into the Court under this section is to be dealt with according to the order of the Court.
(4) This section has effect subject to the Rules of the Court.
6 On 28 January 2014, Mrs Perks and her daughter, Ebonie, were both stabbed to death at their home in Newtown, Queensland by their son and brother, Mitchell, who was then aged 16 years.
7 At the time of the application being filed in 2017, Mitchell Perks, the second respondent, had been charged with the murders of his mother and sister.
8 The Public Trustee of Queensland (the first respondent) is the executor of the estates of both the late Mrs Perks and Ebonie.
9 In 2016, the applicant paid the Public Trustee 50% of the Life Benefit Amount, $57,881, as Ebonie’s share of the policy proceeds. There was no doubt about the right of the estate of Ebonie to receive those funds. The applicant believed that it could obtain no sufficient discharge in respect of the other 50% payable under the policy to Mitchell Perks. On 3 August 2017, I made a declaration under s 215 and delivered reasons therefor: Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland  FCA 963. On 28 September 2017, I made orders and delivered reasons permitting Swiss Re to have its costs paid from the moneys paid into Court: Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland (No 2)  FCA 1146.
10 On 18 August 2017, the Mental Health Court in Queensland found that at the time of stabbing his mother and sister, Mitchell Perks was suffering from schizophrenia. On 27 October 2017, he pleaded guilty to the manslaughter of his mother and sister in reliance on diminished responsibility provided for by s 304A of the Criminal Code (Qld). On 17 November 2017 Douglas J imposed a sentence of nine years’ imprisonment. The sentencing remarks reveal the psychiatric difficulties of Mitchell with clarity. For the reasons given by Douglas J he was required to be sentenced as an adult under ss 140 and 176 of the Youth Justice Act 1992 (Qld).
11 Some extracts from the sentencing remarks are appropriate:
You have been charged with two offences of manslaughter, to which you have pleaded guilty recently before me. They arise in tragic circumstances. You were 16 years and two months at the time, when you killed your mother and sister on the 28th of January 2014. You did so about 8.30 that morning. It appears you were due to return to school for the school year. Then, you had a significant history of psychiatric problems, since you were very young, from the age of four. And there were other episodes as you grew older which drew you into the mental health service system, including an admission to the Toowoomba Adolescent Mental Health Inpatient Unit for 15 days on the 14th of August 2013. You were then extremely agitated and reported strong homicidal and self-harming thoughts.
You were treated for that via an involuntary treatment order and prescribed some medication. During that period of treatment, you experienced homicidal thoughts towards your mother and sister and also talked about disembowelling yourself. You were diagnosed on the 21st of October 2013 with pervasive development disorder, unspecified, and social phobia. You clearly had problems then in dealing with other people socially. After that, however, you ceased taking medication which had been something supported by your mother at the time. You, as soon as you’d committed these offences, pretty well, called triple zero and requested ambulance and police attendance, telling the operator that you had stabbed your mother and sister and that they were both dead. Police and ambulance arrived. You told them they had gone to the wrong house and cooperated immediately with them.
… There had been differing diagnoses by some psychiatrists earlier, but by the time of the hearing all of them had agreed that you were suffering from schizophrenia and not simply from any personality disorder or personality trait, and this is at the time of the alleged offences, and at that time the finding was that you were suffering from an abnormality of mind arising from your schizophrenia and that abnormality of your mind was such as to substantially impair your capacity to either control your actions or to know you ought not to do the act or both.
In this case, in spite of the two deaths, even taking into account the fact that you were a youth at the time, however, it seems to me the appropriate punishment, even in a situation where I have found that a 10-year sentence is the maximum, should require a sentence of nine years. The statutory parole eligibility date for such a sentence is four and a-half years, but it seems to me that I do not need to make an order in respect of that.
12 The Court was informed by the Public Trustee that it would bring an application in the Queensland Supreme Court concerning the estate of Mrs Perks. This was done in May 2018. Mrs Perks’ last will gave the whole of her estate to her children equally. Thus, subject to the order of the Court and the forfeiture rule, Mitchell Perks was entitled to half of the estate of his late mother (whom he had unlawfully killed).
13 The Public Trustee’s application was for a declaration that the estate of Mrs Perks should be distributed to Mary Jane Perks and Kevin David Perks, who were Mrs Perks’ mother and father and who were, by the will, to take if a gift to either child failed to take effect.
14 On 30 May 2018, Boddice J made orders in the Queensland Supreme Court in accordance with the application of the Public Trustee. There were no reasons; but the submissions of the Public Trustee dealt with the forfeiture rule, which was the only basis upon which Mitchell’s share of the estate could be denied to him.
15 It must be that Boddice J accepted these submissions.
16 The application was then renewed before me, not by Swiss Re but by the Public Trustee for the forfeiture rule to apply to the balance of the proceeds paid into Court by Swiss Re and that the parents of Mrs Perks receive the funds as the beneficiaries of her estate, once Mitchell’s interest was forfeited.
17 The Public Trustee relied upon the submissions it had put to the Supreme Court. The second respondent (Mitchell) put no submission. Ms Treston QC from the Queensland Bar agreed to put all proper submissions as to the funds paid into Court. The request to the Bar Association for assistance included the following:
1. How the forfeiture rule should be applied in this case, and how the circumstances leading to the diminished responsibility of the second respondent may affect the rule’s application in this case;
2. The extent of the Court’s discretion as to the application of the forfeiture rule in a case such as this and the kinds of factors that may be relevant to the exercise of any discretion that the Court may have;
3. How the insurance moneys paid into Court should be distributed in this case; and
4. Whether, in the circumstances of this case, there is any power for the Court, if it is not appropriate to apply the forfeiture rule, to settle a trust or make some similar arrangement in favour of the second respondent’s interest in the moneys paid into Court.
18 As revealed by the questions, I was interested in obtaining assistance in seeing whether these funds might yet be able, despite the forfeiture rule, to be used for the benefit of Mitchell, for instance, for the funding of psychiatric help, given his mental health and the burden of the guilt that may now lie upon him.
19 The forfeiture rule is a rule of public policy which provides for the forfeiture of property if the vesting of the property is materially contributed to by the death of someone for whose deaths the person taking is criminally responsible. Fry LJ said in Cleaver v The Mutual Reserve Fund Life Assurance  1 QB 147 at 156:
It appears to me that no system of jurisprudence can, with reason, include amongst the rights which it enforces, rights directly resulting to the person asserting them from a crime of that person.
20 In Troja v Troja and the Public Trustee (1994) 33 NSWLR 269 at 299, Meagher JA said that the rule rested in “an abhorrence of the notion that one may profit from killing another” and described the rule as “absolute and inflexible”. His Honour rejected an argument that the Court had a discretion, saying:
All felonious killings are contrary to public policy and hence, one would assume, unconscionable. Indeed, there is something a trifle comic in the spectacle of equity judges sorting felonious killings into conscionable and unconscionable piles.
21 The traditional view was that the rule applied in all cases of manslaughter: Helton v Allen  HCA 20; 63 CLR 691 at 709–710 (Dixon J, Evatt J and McTiernan J) and cases there referred to; and Troja at 297–8 (Mahoney JA) and 299 (Meagher JA).
22 However, the Victorian Court of Appeal in Edwards v State Trustees Limited  VSCA 28 said that the rule did not apply inflexibly in manslaughter cases, and the rule was to be approached on a case-by-case basis in such cases. Whelan JA (with whom Kyrou JA agreed) said at  and :
 Cases of manslaughter have to be considered on a case-by-case basis. The issue is, does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death? The issue is not determined by reference to whether the conduct is advertent or inadvertent, whether it is by violent means or by other means, whether it is behind the wheel of a car or whilst in possession of a weapon.
 The relevant issue is whether the appellant’s criminal culpability requires the appellant should not take a benefit from the death. In my view it does … this is a sad case, as such cases are, but it is not a case of moral culpability so low as to warrant no, or almost no criminal sanction … it is closer to the position in Re Stone [ 1 Qd.R 361].
23 It is unnecessary for me to come to a view as to this apparent conflict in the intermediate appellate courts. Even if there is a discretion to be exercised in relation to whether the rule applies to manslaughter cases, for the reasons that follow such discretion cannot be exercised in favour of Mitchell.
24 If a discretion exists in a case-by-case approach, the central question must be whether the criminal culpability of the offender requires the application of the rule or permits its non-application. In Re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research  1 WLR 451 at 455, Ungoed-Thomas J spoke movingly of the circumstance of a woman of 58 years who had feloniously killed her helpless and stroke-affected 63 year old husband in tragic circumstances where she put an end to her own life and his by gassing herself and him using the fireplace coal gas heater. They had been a loving couple, but the wife was worn out and exhausted and at the end of her energy and capacity for life in looking after him; and she was desperately fearful for him should she predecease him, leaving him alone, helpless and without care. As his Lordship said, the circumstances called for compassion, not condemnation. Yet, the rule was held to apply.
25 Culpability and the relationship between the purpose of the rule and its application in particular circumstances can be debated. Here, however, though Mitchell’s culpability was diminished by his mental illness, it was not such as to remove completely the criminal culpability and responsibility for the violent killing of his mother and sister by repeated stabbing.
26 In these circumstances, the criminal culpability for the violent death of Mrs Perks must attract the operation of the forfeiture rule.
27 The rule thus applying, the insurance proceeds fall into the estate of Mrs Perks, the policyholder. The orders of the Supreme Court of Queensland make clear that the estate of Mrs Perks should be distributed to Mary Jane Perks and Kevin David Perks. If the funds are to be used in any respect for the health or benefit of Mitchell, it is for his grandparents to decide such matters.
28 I propose to make a declaration that Mary Jane Perks and Kevin David Perks are beneficially entitled to the balance of the funds held in Court from the moneys paid into Court by Swiss Re in respect of policy 410264209 of which the late Melanie Perks was the policyowner and life insured, and direct that the funds be paid to the Public Trustee of Queensland for their benefit.