Killing the goose and keeping the golden nest egg

Article


Hemming, Andrew. 2008. "Killing the goose and keeping the golden nest egg." QUT Law Review. 8 (2), pp. 342-363.
Article Title

Killing the goose and keeping the golden nest egg

ERA Journal ID33734
Article CategoryArticle
Authors
AuthorHemming, Andrew
Journal TitleQUT Law Review
Journal Citation8 (2), pp. 342-363
Number of Pages22
Year2008
Place of PublicationBrisbane, Australia
ISSN1445-6230
1445-6249
2201-7275
Web Address (URL)http://www.law.qut.edu.au/ljj/editions/v8n2/pdf/4_KillingtheGooseandKeeping_the_Golden_Nest_Egg_HEMMINGpdf.pdf
Abstract

The forfeiture rule is a common law principle which provides that where a person is criminally responsible for the death of another from whose estate that person will
benefit, then the person’s interest in that property is forfeited. The forfeiture rule has been modified both by equity and statute. This paper contends that whilst the forfeiture rule is based on an abhorrence of unlawful killing whether it be murder or manslaughter, an inflexible application of the rule will produce unjust results. The
underlying policy rationale for the forfeiture rule is that by committing a crime, including slaying a fellow beneficiary, no one can obtain a lawful benefit for themselves and so gain an advancing interest or an additional gift under a will. This policy will only deprive a killer from those benefits which flow from the wrongful act.
This paper argues that statutes allowing judicial discretion in cases of manslaughter based on ‘the justice of the case’ have both skewed the outcome in favour of the killer and added unnecessary complexity and uncertainty. It is contended that the better view is to abrogate the common law, which applies in all Australian jurisdictions apart from New South Wales (NSW) and the Australian Capital Territory (ACT), by substituting a codified solution (Parliament rather than judges being the appropriate body to balance the public interest with the interests of individuals) which is designed to achieve greater fairness, improve the efficiency of the distribution of justice, provide a comprehensive solution involving other relevant legislation and reflect contemporary values within the Australian community.
It is argued that any changes in this area of the law have complex and far reaching ramifications which not only cannot be accurately assessed on a case by case basis, but
also risk leaving the law floundering in a quagmire of uncertainty.

Keywordsforfeiture rule; criminal law
ANZSRC Field of Research 2020489999. Other law and legal studies not elsewhere classified
480410. Legal theory, jurisprudence and legal interpretation
480402. Family law
Public Notes

The original article has been published in the QUT Law and Justice Journal 2008, 8(2). The article as it appears at that site is the only authorised version of this article. The copyright in the print and electronic appearance of the article are held by QUT and the copyright in the content of the article is held by the author.

Byline AffiliationsCharles Darwin University
Institution of OriginUniversity of Southern Queensland
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