Hemming, Andrew (2008) Killing the goose and keeping the golden nest egg. Queensland University of Technology Law and Justice Journal, 8 (2). pp. 342-363. ISSN 1445-6249
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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.
|Item Type:||Article (Commonwealth Reporting Category C)|
|Additional Information:||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.|
|Uncontrolled Keywords:||forfeiture rule; criminal law|
|Fields of Research (FOR2008):||18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure|
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
18 Law and Legal Studies > 1801 Law > 180113 Family Law
|Socio-Economic Objective (SEO2008):||C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940403 Criminal Justice|
|Deposited On:||11 Mar 2011 17:24|
|Last Modified:||15 Aug 2012 12:19|
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