Killing the Goose and Keeping the Golden Nest Egg

Abstract

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.