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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
- 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
- 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.)
- 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.
- 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".
- 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.
- 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.
- Even
if s26(2) of the BORA was engaged, the provisions are a justifiable limitation
upon the right.
- 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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