The Forfeiture Rule: Report (html)

6. Conclusion

6.1 Without doubt, the forfeiture rule is a fundamental principle of public policy, and should continue to be so. It is consistent with the legal maxim that no one can derive an advantage from their own wrongdoing, and it conveys the community’s highest condemnation of the act of unlawfully taking another person’s life.

6.2 Nevertheless, the need for legislative reform in Victoria is clear. The rule has not evolved in step with changes to the criminal law and sentencing practices. It has remained inflexible while the number and types of homicide offences and sentencing options have diversified in response to shifts in community attitudes and behaviour.

6.3 The Commission is pleased to have had the opportunity to consider, and make constructive proposals on, the application and implications of the rule.

6.4 The new Forfeiture Act and legislative amendments that the Commission recommends in this report are a proportionate and targeted response to uncertainty about when, and with what effect, the rule applies, and the injustice it can cause in some cases. Experience in the jurisdictions from which the proposed legislation is drawn indicates that introducing a Forfeiture Act in Victoria will not lead to an upsurge in litigation. This is as it should be, as exceptions to the rule will be rare.

6.5 The recommended reform will refine and strengthen the rule. It will refine it by aligning it with developments in criminal law and sentencing practices. It will strengthen it by expressing it in an Act of Parliament and making its effect clearer and fairer for the personal representatives and innocent beneficiaries of the victim’s estate.

6.6 The Commission commends this report to you.