Using a house to kill

Legal historians and those with an interest in confiscation law are familiar with the deodand - The principle of forfeiting the instrument of a murder to the State. The modern successor to the deodand in Victoria is the definition of 'tainted property' in section 3(1) of the Confiscation Act 1997, which includes property that:

(a)  was used, or was intended by the accused to be used in, or in connection with, the commission of the offence

In one of the flurry of decisions from the Court of Appeal last week, the court considered when house in which a murder was committed would be caught under this definition.

In Chalmers v R [2011] VSCA 436, the appellant brought an appeal against conviction, sentence and a forfeiture order following his conviction of murdering his wife in their family home. The conviction and sentence appeals were dismissed, though the forfeiture appeal succeeded in part. As part of the decision, the court needed to interpret the phrase 'used ... in connection with the commission of the offence' from section 3(1). The Court summarised the following principles that emerge from the authorities:

1. The word ‘used’ should be given its ordinary meaning of ‘employed, or made use of, for a particular end or purpose’.
2. The statutory phrase is of wide scope. The inclusion of the words ‘in connection with’ was plainly intended to extend the scope of the definition of ‘tainted property’ beyond circumstances where the property could be said to have been ‘used in the commission of’ the offence.
3. Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a ‘substantial’ connection, or that the crime could not have been committed without using the property
4. The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the Court’s discretion whether or not to order forfeiture of the property.

The court then turned to consider the question of when a house can be 'used in connection with the commission of the offence'. This is not limited to the Wizard of Oz style usage of houses to kill the wicked witch of the east. Instead, as the court explains:

89 At one end of the spectrum are cases where the property is deployed in an instrumental sense to commit the offence. An obvious example is the weapon that is used to inflict an injury. Land can be used to cause death or injury, such as where a domestic pool is used to drown the victim. Another example is where a beam in a ceiling of a house is used to support a rope for the purpose of hanging the victim. A further example is where the victim is thrown off a second floor balcony. These are examples of cases where an attribute or feature of the property is actively used in the commission of the offence.
90 At the other end of the spectrum are cases where the property is merely the passive location at which the offence is committed. An example is where a discussion takes place in the offender’s home which constitutes a conspiracy to commit an offence at another location. Another example is where, during dinner in the family home, a domestic dispute erupts spontaneously which leads to one person reaching across the table and assaulting another person. These are examples of cases where an offence is committed at the property (the home) but there is no relevant connection between the use of the property and the commission of the offence.

In the circumstances of Chalmer, the court held that the house was merely the venue in which the crime was committed, but was not used in any instrumental sense, and so set aside the forfeiture order over the house. While the prospect is amusing, I don't think anyone will have success arguing that their house is just the passive venue in which hydroponic cannabis cultivation takes place, rather than being used in connection with the cultivation. If such an argument were successful, I expect we would see a rapid legislative response to close the 'loophole'.