Wilkinson Kate: Succession (Homicide) Bill — In Committee 
Wilkinson Kate: Succession (Homicide) Bill — In Committee 
[Volume:639;Page:9795] 
KATE WILKINSON (National) 
: 
 In speaking further on the Committee stage I repeat that we acknowledge there may be a need to regulate the common law principle that prevents a killer from benefiting financially from the death of his or her victim. In some respects the existing common law has been regarded as uncertain in some of its scope and in some of its effects. Those uncertainties have up to now been resolved by the courts on a case by case basis which as we know and as we have heard can be costly and slow. Having said that I tell the Committee that this bill in itself creates some of its own uncertainties and those uncertainties themselves will still have to be resolved by the courts on a case by case basis and that can also be somewhat costly and slow. 
I mentioned before that I was concerned that the bill was a wee bit too inflexible and that because no consideration had been given to the degrees of moral culpability it may lead to some harsh results in certain circumstances. It is not unusual in other jurisdictions to have legislation that does provide for exceptions. In fact legislation in the United Kingdom and some of the Australian states gives the courts a discretion to modify the rules except in cases where the moral culpability of the killer does not warrant the application of those rules. Time will tell I am sure as to whether this bill will lead to some harsh results. When that happens then forgive me if I say “I told you so.”—not you Mr Chairman but the Committee. 
I would also like to reiterate the somewhat brief explanation of why the civil test on the balance of probabilities is OK when it comes to criminal law. We have to look at the results—the consequences—of that. Under our law at present for a person to be convicted of murder the prosecution is required to prove the case beyond reasonable doubt. But for the purposes of benefiting from the murderer’s estate a family member has to prove it only on the balance of probabilities. That is a much lesser standard of proof. 
If we go back to the David Bain situation we can say that on the balance of probabilities he may or may not have killed his family. In that case I think it did warrant some more comprehensive discussion and perhaps a reason why such a difference in the standard of proof should be admitted under this bill when we are talking in effect of a criminal conviction or a criminal offence. So it is all very well to talk about the inheritance the estate the law of intestacy the will and all the rest of it as being civil but this bill deals with homicide and homicide is not civil. Homicide is criminal. In that regard I believe that some further discussion in relation to that test—of whether it should be on the balance of probabilities or beyond reasonable doubt—should have been undertaken. 
I go back to the scenario of the reckless driver. Maybe the driver was not convicted of being a reckless driver or maybe he was but when one has differences in that standard of proof then that can lead to unintended consequences. It can lead to injustice and that as lawmakers is what we really want to avoid.