Wilkinson Kate: Succession (Homicide) Bill — Third Reading 
Wilkinson Kate: Succession (Homicide) Bill — Third Reading 
[Volume:642;Page:12189] 
KATE WILKINSON (National) 
: 
 In rising to support the third reading of the Succession (Homicide) Bill which is intended to codify the law that precludes a person who unlawfully kills another person from benefiting from the death of that person I want to mention just a couple of cautions. I had mentioned these in the Committee stage of the bill and I would have to admit that they were brushed aside somewhat carelessly and indeed in my mind recklessly. My concern as raised initially not only by me but by some of the submissions concerns the fact that this bill does not take any account of differing degrees of moral culpability. The bill itself defines “homicide” as “the killing of a person … intentionally or recklessly by any means that would be an offence under New Zealand law … but does not include (a) a killing caused by negligent act or omission; or (b) infanticide … or (c) a killing of a person by another in pursuance of a suicide pact; or (d) an assisted suicide”. 
 This code this bill has a degree of inflexibility. Bearing in mind that flexibility of laws must always be balanced with certainty I note that with any inflexible law there is always the danger of unintended consequences of harsh and perhaps even unreasonable results. To illustrate this I repeat some of the examples I gave in earlier addresses on the bill. There may be domestic killings that on compassionate grounds do not have the same moral abhorrence as a cold-blooded murder. A battered woman abused over a long period of time may suddenly snap and kill the abuser with whom she may have shared and owned a house. Under this bill she would not inherit her share of that family house. Is it fair that she is treated exactly the same as a cold-blooded serial killer? Or is it fair that the judge be given discretion and although not condoning such a situation at least give some understanding and compassion to the issue? Why should the judge not be able to determine that in such a circumstance extraordinary though it may be—and extraordinary it would have to be—the abused woman would be subject to punishment but would not also lose her family home to which she would have been entitled? 
In the case of a person convicted of failing to provide the necessities of life for some reason—again in very extraordinary circumstances—is there any reason why a judge could not exercise a discretion if he or she finds that the moral culpability is at the lower end of the scale and therefore enable any inheritance to stand? 
My last example was that of the reckless driver. Let us suppose he has a car accident recklessly but not necessarily negligently—recklessness has a higher threshold than negligence—and kills his loving wife. He is punished enough by losing his wife. He is punished enough by being convicted of recklessness. Does he really need to be punished again by being deprived of the ability to inherit his share of the family home—something his deceased wife would have wanted in any event? These situations could so easily have been provided for by inserting a simple proviso for the judge to have discretion in exceptional circumstances. That would not go so far as to condone any killing because any killing whatever the circumstances should not be so condoned but it would merely provide that after taking into account all the evidence and all the circumstances there may be exceptional enough circumstances whereby it is right that the killer should be able to inherit. 
I raise these matters again now because when I raised them initially the answers I received came in two somewhat surprising versions. Firstly we were told that “given the wide-ranging definition of homicide in the legislation there is probably sufficient flexibility for a judge to do justice in individual cases with the flexibility afforded.” I do not agree that there is that much flexibility in the definition and more important I am not convinced that it is usual for a judge to look first at the penalty and then decide the offence. That I would have to suggest is totally the wrong way round. The penalty should fit the crime not the crime fit the penalty. 
The other reason or justification that was suggested by the Government in earlier debates to my example of the reckless driver was that “Recklessness is included because it involves an element of intention.” Actually no; it does not. Being reckless is not caring whether something happens. There is no intention component to recklessness. A reckless driver does not intend to kill. His actions are such that he is reckless whether or not death results. In fact the Crimes Act definition of murder or culpable homicide is: “if the offender means to cause to the person killed any bodily injury that is known by the offender to be likely to cause death and is reckless whether death ensues or not:”. There is not an intention component to recklessness. In fact if we look at the actual offence of reckless driving we see that there is no intent to kill by driving. It is driving in a manner that is or might be dangerous but in which the driver gives no thought to whether it is dangerous. In other words he is reckless as to the consequences but there is not intent. So to exclude “recklessness” in the definition of homicide in this bill because someone erroneously thought recklessness involves intent is misguided at best reckless at worst but certainly careless as to the consequences. 
The other issue I have with this bill is in relation to the burden of proof. Currently for a person to be convicted of murder the burden of proof is the criminal burden namely “beyond reasonable doubt”. Yet under this bill for the purposes of benefiting from the murderer’s estate one need only to prove murder on the balance of probabilities—in other words the civil burden of proof. I find that these mixtures of the burdens of proof are somewhat concerning and we certainly have a similar issue with the Criminal Proceeds (Recovery) Bill. A murderer for example could be acquitted of murder on the basis of beyond reasonable doubt but for the purposes of this bill could be deemed guilty on the balance of probabilities. I am not convinced that this is good law or good justice. On the lesser burden of proof an innocent person could be deprived of his or her rightful inheritance. 
On top of that there is the issue of the time delays that it may take to even get the matter to court. We constantly hear of the court logjams of median waiting times of 200 300 or 400 days. For the administration of an estate to be delayed or deferred for a year or more may certainly be unconscionable and unreasonable and lead to harsh effects especially in relation to the beneficiaries of that estate. 
I will repeat what the New Zealand Law Society submitted on the bill which was that the society “acknowledges the need for legislation to regulate the common law principle that precludes a killer from benefiting financially from the death of his or her victim” but it “opposes the proposed codification in its present form because it takes insufficient account of differing degrees of moral culpability … it is concerned that an inflexible code will lead to harsh results in certain circumstances.” At this stage I point out that the code does differ from other approaches in the UK and in some Australian states which do in fact give the courts a discretion to modify the rules except in cases where the moral culpability of the killer did not warrant the application of the rules. In other words if the circumstances are extraordinary enough then the judge has a suitable discretion. 
So although we support the bill there are still fishhooks in it. But the intent of the bill is right. A person should not benefit from his or her own unlawful action or from the death of the very person he or she is responsible for killing. The bill is supported.