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Succession (Homicide) Bill 2006 (Consistent) [2006] NZBORARp 19 (13 June 2006)

Last Updated: 9 December 2018

Succession (Homicide) Bill 2006

13 June 2006 Attorney-General

Succession (Homicide) Bill 2006 Our Ref: ATT395/10


  1. I have considered the Succession (Homicide) Bill 2006 and conclude that it is not inconsistent with the New Zealand Bill of Rights Act ("BORA").

General comments


  1. The Bill seeks to codify the law that precludes a person who unlawfully kills another person from benefiting as a result of the death, whether from the victim's estate, or from other property arrangements (clause 3.)
  2. The effect of clause 13, together with clauses 7 to 12, is that any person convicted of a homicide in New Zealand will be disentitled from claiming from the victim’s estate or from other property arrangements.
  3. This raises the issue as to whether or not section 26(2) of the BORA is engaged. Section 26(2) provides that "no one who has been ... convicted of ... an offence shall be ... punished for it again".
  4. In our view section 26 of the BORA is not engaged as it is referable only to criminal penalties: Daniels v Thompson [1988] 3 NZLR 22 per Henry J at pp33-34; see also Thomas J at pp57-58. Section 26(2) does not prohibit the imposition of civil penalties or sanctions that impact adversely for the same conduct that constituted the criminal offending: Harder v Director of Land Transport Safety (1998) 5 HRNZ 343 at p347.
  5. In our view the regime contained in the Bill is civil rather than criminal. Indeed it is questionable whether the provisions could be considered to amount to a civil penalty or 'punishment'. The purpose is not to (re)punish offenders. Rather the provisions prevent persons from profiting from their own wrongdoing.
  6. Even if s26(2) of the BORA was engaged, the provisions are a justifiable limitation upon the right.
  7. I also note that clause 15 of the Bill enables a court to make a determination as to whether a person would be guilty of homicide if they had been prosecuted in New Zealand. Clause 15(2)(b) provides that a person who alleges that another person is guilty of homicide for the purposes of the Act must satisfy the court of that fact on

the balance of probabilities. Clause 15(2)(c) provides that a person who alleges that he or she is not guilty of the homicide for the purposes of the Act by reason of insanity must satisfy the Court of that fact on the balance of probabilities. These provisions are limited to determinations of whether a person is guilty of homicide for the purposes of the Act. In my view proceedings under the Act are civil and do not engage the rights in s25 of the BORA (including the right to be presumed innocent).

Joanna Davidson Crown Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Succession (Homicide) Bill 2006. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.


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