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8 Queensland U. Tech. L. & Just. J. 342 (2008)
Killing the Goose and Keeping the Golden Nest Egg

handle is hein.journals/qutlj8 and id is 348 raw text is: KILLING THE GOOSE AND KEEPING THE GOLDEN NEST EGG ANDREW HEMMING* 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 afellow 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. I INTRODUCTION 'If once a man indulges himself in murder, very soon he comes to think little of robbing; and from robbing he comes next to drinking and sabbath-breaking, and from that to incivility and procrastination'.' * Lecturer in law, Charles Darwin University. T de Quincey, On Murder Considered As One of the Fine Arts (Blackwood's Edinburgh Magazine, November 1839) 662-663.