Succession (Homicide) Bill

Hon CLAYTON COSGROVE (Associate Minister of Justice) Link to this

I move, That the Succession (Homicide) Bill be now read a first time. At the appropriate time I intend to move that the Succession (Homicide) Bill be referred to the Justice and Electoral Committee for consideration.

No one would dispute that it is repugnant to allow a person to benefit financially from his or her criminal activity. That concern is reflected in the general rule that killers cannot benefit from their victim’s estate. The Law Commission reviewed the operation of this judge-made rule in 1997 as part of a wider review of succession law. It recommended enacting legislation to codify and clarify the general rule for the following reasons. Firstly, the general rule is well accepted, but its application to individual cases can be uncertain. Those uncertainties are currently resolved through litigation on a case by case basis but can delay administration of the estate and be costly for modest estates. Secondly, these cases are more common than one would like to think, because a significant proportion of homicides occur in a domestic setting. Finally, legislation would remove any doubts about whether a judge can, as a matter of constitutional law, properly override the statutory provisions concerning the distribution of estates of people who die without making a will.

The bill will make it easier to administer estates, and reduce the number and scope of disputes. I am grateful to the Law Commission once again for its assistance in preparing the Succession (Homicide) Bill for introduction. The bill was introduced into the House at the same time as the Wills Bill that we have just debated, and as the Arbitration Amendment Bill, which we are about to debate. These three bills give effect to useful reforms recommended by the Law Commission. They will improve the operation of existing law and make it easier to understand. I will now outline the key features of the Succession (Homicide) Bill.

SIMON POWER (National—Rangitikei) Link to this

This will be one of the rare occasions when Clayton Cosgrove and I agree. The National Party will be supporting the Succession (Homicide) Bill through its first reading and its referral to a select committee. But it would be wrong for the House to assume that this matter is straightforward or simple, because actually it is not.

The Minister raised in his speech a number of issues, which I stand to be corrected on if I heard him incorrectly. It seems to me that a number of issues remain outstanding in respect of this bill. One relates to the situation the Minister described of the effect of somebody who, acting in self-defence, kills another human being, and whether that individual would be considered to be a killer for the purposes of this legislation. Although members would agree that killers should not benefit from their actions in respect of any inheritance they may gain, it is important that the rights of certain individuals—in terms of their classification as killers—are made clear during the select committee process. If a woman, acting in self-defence in a very violent relationship, killed another human being, was considered to be a killer for the purposes of this legislation, and then found herself without recourse to the deceased’s estate, I would have difficulty with that.

There is also a further interesting question—and I certainly look forward to taking part in the select committee process, if I am able to do so—around the Minister’s comments regarding joint tenants. Unless I heard the Minister incorrectly, which is always a possibility, it seems to me that in the event of one joint tenant killing the other joint tenant, and the killer joint tenant being considered to be deceased prior to the victim’s death, under the law of joint tenancies, he or she does not automatically inherit the victim’s property. The question for the Minister and for the select committee is whether the killer joint tenant’s heirs and successors have any ability to access the estate of the joint tenant who was killed during that particular exchange.

Although at first glance the legislation seems to make sense and to be sensible, having listened to the Minister, I find there are a number of complex issues that indicate to me that this bill will require some work. For example, I ask the Minister at what point the killer, as defined in this legislation, is disinherited, as it were. Is it at the point when all appeals have been exhausted, or is it at a defined point along the road of appeals? For example, if the killer disputes the circumstances surrounding the death of another human being, is it then that the decision is taken—at that time; at the point of first conviction—that that individual is no longer entitled to inherit? What if, for example, Arthur Allan Thomas had, under legislation like this, been considered to be disinherited, but, subsequent to a series of appeals having been exhausted, a royal commission or the like found that that individual was, in fact, not the killer in question? You see, that issue might be solved by way of compensation at that point, but would that compensation have to take into account the lost opportunities that such an individual would otherwise have had if he or she had legitimately inherited the goods and property of the person who was then deceased?

So although at first glance the bill makes some sense and National will support its referral to a select committee, I say—through you, Madam Assistant Speaker, to the Minister—that these issues are complex. It seems to me that some other parties in this Parliament will need to give some pretty clear thought to some of the issues. We need to be sure, at the point when guilt is aligned with an individual and the circumstances surrounding the crime are established, that defences have been exhausted. For example, if an individual kills another human being and is found guilty but insane, is it then the case—in the case of joint tenants—that that individual’s heirs and successors have no claim at all on the other tenant’s property and other estate?

I note that the bill addresses the issue of assisted suicide, and knowing Peter Brown’s interest in matters relating to euthanasia, I am sure he and his colleagues will need to be reassured in regard to that issue.

I do not want to say much more than that. I thought at first glance that this bill was relatively straightforward. The more I think about it—and I do thank the Hon Clayton Cosgrove for his opening remarks, because members often tend to listen to a Minister’s first reading speech and think that the officials did a good job of putting the speech together—the more I think that a number of issues arose in the Minister’s opening statements that National will need some clarification on. Firstly, I think that the issue of the killer—the issue of someone who has acted like an automaton or in self-defence, or who has been found guilty by reason of insanity—is one that needs to be addressed. Secondly, I think that the appeal process and the point of defining guilt are important, particularly if we use, say, the Arthur Allan Thomas case to highlight that issue. Thirdly, I think that the issues around the joint tenancy problem—in particular, the rights of the heirs and successors of the killer joint tenant, for want of a less clumsy phrase—need to be clarified for the sake of certainty at the point of the select committee’s consideration of the bill.

There is no doubt that New Zealanders and the National Party believe that those who break the law should not benefit from the breaking of that law—curious, in the current political environment. But the point is that the law around homicide is complex. I look forward to seeking the permission of National’s whip to attend the Justice and Electoral Committee in order to debate these issues further and to listen to the submissions on the bill. We will support this bill at its first reading and the sending of the bill to the select committee.

CHARLES CHAUVEL (Labour) Link to this

I rise briefly to support the first reading of the Succession (Homicide) Bill. As has been said, the bill is based on the principle that no one should profit from his or her own wrongdoing. That is a settled principle of New Zealand law. It is a principle that the bill will follow and that, in my view, deserves support. Obviously, despite that principle—as the previous speaker mentioned—there can be uncertainties as to how the principle ought to be applied in certain cases. We have seen numerous examples through the courts of time-wasting, time-consuming, and costly litigation as a result of uncertainties around the application of the principle.

As the Minister said, numerous homicide cases are domestic—I think that the figure was up to about half of them. So the issue of profiting through murder—for example, through inheritance—is very pertinent. The bill seeks to codify the law that prevents a killer from inheriting his or her victim’s estate. This will reduce the number and scope of disputes over victims’ estates, and that principle deserves support.

I just want to add one other matter. I attended the Law Commission’s 20th anniversary seminar on 25 August. One of the matters raised there was the need for the Law Commission’s recommendations and reports not to be ignored by this House, or by Parliament itself in general. The point was made that often—as Mr Finlayson has said in respect of an earlier bill—law reform matters are seen as lawyers’ law. They do not grab headlines. They are not something that often the general public is drawn to consider, but the draft bills appended to Law Commission reports are usually important technical legislation. They almost invariably follow a long and considered process whereby experts in the area consider the issues at stake and come to a considered view as to what the law should be.

It is good, in my view, to see that Law Commission proposals are now being advanced through Parliament. This bill is one, as the Minister mentioned earlier. The Law Commission has been consulted extensively over the provisions of this bill, and the earlier bill to which the Minister referred is also the product of a Law Commission recommendation. It is a good thing from the point of view of our democracy and our constitution that we make proper use of the Law Commission and its considered law reform processes, and that we advance recommendations through Parliament in an orderly way. It is a good thing to hear that this bill may well have, at least in principle, bipartisan support. That is the sort of support that usually ought to be accorded measures on which the Law Commission has been consulted. I commend the bill and the process.

KATE WILKINSON (National) Link to this

In speaking in support of the first reading of the Succession (Homicide) Bill and its referral to select committee scrutiny—and I would emphasise that we do believe that it should be properly scrutinised by the select committee—it is interesting to delve back into history and into the Law Commission report issued in 1997. It is now 9 years after that report, and it recommended back then that our homicidal heirs laws should be codified. Very simply, this bill is based on—and it has been said before—the principle that nobody may profit from his or her wrongful conduct, that a killer should not take any benefit under a victim’s will, and that a killer should not benefit economically as a result of the death of the person he or she killed. It all sounds very, very reasonable. But then, as is often the case, there is some devil in the detail, and my colleague Mr Power has already explained some of the concerns he has about this bill.

If I can just go back, a “killer” is defined in clause 4 as “a person who kills a person or child who has not become a person in any manner and in such circumstances that the person is guilty, … of the homicide … or would be so guilty if the killing had been done in New Zealand”. To carry that further, “homicide” is defined in clause 4 as including “… intentionally or recklessly” killing “by any means that would be an offence under New Zealand law, …”, but excludes certain killings, namely: “(a) a killing caused by negligent act or omission; or (b) infanticide under … the Crimes Act; or (c) a killing … in pursuance of a suicide pact; or (d) an assisted suicide”. Those are the exemptions provided in this bill.

It is possible, however, that a husband driving recklessly with his loving wife might have a car crash. His wife is, unfortunately, killed. He loses, under this bill, not only his wife but also any entitlement to his bequests and legacies under her will. She may have wanted him to inherit, even if he was reckless and even if he did cause her death, but does this all equate to a killing by homicide? Under this bill it would appear that it does, and under this bill the reckless husband—the reckless widower—would be disinherited.

Even the Law Commission report itself referred to a similar scenario. It stated: “The unhappy husband who, by his negligentdriving of the family car, kills his wife in the seat beside him should not be treated in the same way as such a cold-blooded murderer as Crippen. The abhorrence attaching to profiting from intentional killing does not extend to accidental killing; as the adjective ‘negligent’ suggests, the law of succession, whatever its terms, can provide no conceivable incentive for killings by negligent (rather than conscious) act or omission.” Similarities and parallels can be drawn with Mr Power’s reference to self-defence.

Going back to the unhappy husband, the unhappy husband is indeed reckless. The homicide under this bill, however, does not have to be intentional and reckless to exclude him from inheriting; the homicide can be intentional or reckless. Yet, under this bill, such reckless driving causing death would or may exclude the unhappy, albeit reckless, husband from inheriting from his deceased wife.

I think that when the bill reaches the select committee stage, the committee will need to consider what is really intended by this bill. It may be difficult to prove how wrongful a wrongful killing must be before the bar on profiting shall apply. That is our role as legislators, and it is certainly the role of the select committee, in scrutinising the bill.

One has to look at the scenario of the deceased wife killed in the car accident as the result of her reckless husband’s actions. If she would still have wanted her reckless husband to inherit, then should not her wishes be respected and be abided by and not overruled by heavy-handed legislation?

The bill also provides that if no criminal prosecution has taken place, if any party alleges that another is guilty of the homicide of a person, and the person who is alleged to be guilty of homicide has not been prosecuted, then a court, in civil proceedings—not criminal proceedings—may decide whether that alleged killer would be guilty of homicide if that person had been prosecuted. What concerns me about this is that the test for this provision is not the usual criminal test of beyond reasonable doubt. It is the civil test of on the balance of probabilities. I believe that the select committee needs to look at the different onus and different tests and at whether the balance of probabilities is appropriate in this unusual homicide criminal situation.

Another issue I think needs some mention and is of concern, is timing; and, again, my colleague Mr Power alluded to this. How long will it take to establish that the killer is guilty of homicide beyond reasonable doubt in the criminal jurisdiction, or on the balance of probabilities in the civil jurisdiction? We already know that at present the longest waiting time for a District Court jury in Auckland is 1,179 days. The median time is about 1 year. We have to ask whether the poor residuary beneficiaries of the will are expected to sit and bide time for between 1 and 3 years before a decision can be made over whether a killing by way of homicide has occurred and, therefore, who is entitled to inherit under the will of the poor victim.

It is not only that, but under estate administration rules, partners and spouses have 6 months in which to make an election under the will over whether to take proceedings under the will or under the property relationships legislation. What I would like the select committee to scrutinise, and the Minister to consider, is how a lengthy delay in the District Court in Auckland, for example, while waiting to decide whether a homicide has occurred and, if so, by whom, will interface with the existing rules of estate administration. Or is this just another unintended consequence—another example, perhaps, of justice delayed being justice denied?

The Law Commission report itself referred to two cases involving homicidal heirs, where around 4 years elapsed between the killing and the courts giving judgment. Delay has been given as one of the mischiefs that this bill is intended to remedy. If one has to wait 1,179 days for a hearing date in the Auckland District Court, one still has the delay. If one has to wait the median time for a trial in the High Court in Christchurch of 203 days, then justice is delayed. If one has to wait 262 days in Gisborne, then justice is delayed.

I have to say that although the Succession (Homicide) Bill is well intentioned, it is still one part of the jigsaw puzzle. Unless the court waiting-times issue is seriously addressed, this bill has every opportunity of merely illustrating more delaying of justice, more denial of justice, and less access to justice.

We all know that criminals should not benefit from their crimes, and it is about time, 9 years after the Law Commission report, that killers’ rights and disentitlements in relation to succession should indeed be clarified and codified. But we also need to make sure that the rules are clarified, not confused; that there is certainty, not confusion; and that access to justice is expedited, not delayed. This bill is a start; National supports it going to the Justice and Electoral Committee, but it needs serious select committee scrutiny.

RON MARK (NZ First) Link to this

I rise to take a call on behalf of New Zealand First, and to say that New Zealand First will likewise be supporting the Succession (Homicide) Bill through its first reading and on to the Justice and Electoral Committee. We point out that we do not have a representative on the Justice and Electoral Committee, so we will be reliant upon the people who sit on that committee to produce a clear report.

In acknowledging all of the concerns raised by previous speakers, we wish to point out a couple of things. We point out that report No. 38 from the Law Commission, Succession Law: Homicidal Heirs, was produced in 1997. I have just sat and listened to a speech that said we need to expedite matters. How expeditious, one would ask, has it been to have legislation sitting on the shelves of the House and gathering dust for coming up to 10 years, and to not have moved it? I take note of Mr Power’s speech in the House, but I say that report was produced for the then Minister of Justice, the Hon Doug Graham—a National Minister. One could rightfully ask the previous National speakers what the heck their members of Parliament and Ministers were doing at that time. What did they do subsequent to receiving the report? Why did they sit on it for so long? If the issues are of such concern, why was the bill not progressed before now? We have seen the bill languish again for a further 6 or 7 years, and now we are talking about being cautious and taking our time.

I understand the concerns expressed by members who were formerly in the legal fraternity, but let me point to page 2 of the Law Commission’s report: “Homicidal heirs cases arise more often than may at first be thought.” Members should bear in mind that the report was written in 1997. It continues: “From 1982 to 1992 the number of culpable homicides and attempted homicides almost doubled, from 53 to 103, and about half of these occurred in a domestic setting. Culpable homicide that was murder increased steadily in New Zealand between 1960 and 1985: from an average of six per year between 1960 and 1964, to an average of 27 per year”—am I right that that is an increase of 800 percent; I would have thought that that would have been a concern some time ago—“between 1980 and 1984. The Public Trust Office alone identified eight estates it had administered involving problems of homicidal heirs in the last 10 years or so.” Again, I ask members to remember that this report was written in 1997 for the Hon Doug Graham. The report continues: “Even over the brief period from November 1996 to March 1997”—what are we talking about there; 5 months?—“two current High Court proceedings involving homicidal heirs problems were made known to the Commission.”

Well, if ever there was a message that said we should hurry up and catch up because we have a looming problem, that would be it. Yet nothing happened between 1997 and 1999, when there was a change of Government, and nothing has happened since then, until now. Now we have speakers who are standing up and saying we have to be cautious and know what we are doing and study this bill carefully. I would have thought 10 years of study would have been ample. I would have thought 10 years of examination of the Law Commission’s report and its recommendations by the legal fraternity would have been ample.

But we are tolerant people in New Zealand First. We will watch the select committee do its work. We do not expect to see an undue extension of the report-back time of this bill. The fact is that politicians around the country rattle on about crime and how we must clamp down on violent crime, and rattle on about how they want to quickly and expeditiously pass laws to confiscate the assets of criminals who gain monetarily through their illegal activities. We have had legislation put before the House in respect of the confiscation of assets. This bill is but another tool in the weapons against crime, another tool to deter crime, and another tool to stop criminals from profiteering from their criminal acts. And here we are saying we should be careful about the legislation! Quite frankly, some of us get tired of hearing that sort of thing. We want to see some work done on the issue, and New Zealand First would have thought that 10 years on the waiting train was perfectly long enough for that. People who are members of the Law Society and the legal community know full well what is needed to be done in this legislation. After all, they made the submissions to the Law Commission, did they not?

NANDOR TANCZOS (Green) Link to this

I think Mr Mark is perhaps being a little bit unkind to suggest that a desire to look carefully at the legislation, and to make sure we are enacting legislation that works and does not have various unintended consequences, is unnecessarily delaying. It is important that the Justice and Electoral Committee takes the time needed to comb through the legislation and to make sure that it does what Parliament intends it to do. There are some difficult issues in the legislation, as there are in some of the other matters that the member raises, such as the proceeds of crime legislation, which I know that the Government has mooted. Although there is a concern to make sure that people do not derive benefit from criminal activities, there is also a valid point in ensuring that the right people are being targeted and that we do not introduce legislation that is so draconian as to punish people unfairly. So it is important that we take the time necessary to look at this issue carefully.

Having said that, I point out that the Green Party certainly supports this bill going to the select committee and, I would imagine, through the various stages, as long as some of the difficult issues can be teased out and properly sorted out. We support the bill because in principle, of course, it is right. Other members have said before me that it is repugnant that someone should kill a person, then benefit from the act by getting access to that person’s estate or property. The point has been made, quite properly, that this matter is reasonably settled in law but that some specific applications are uncertain and therefore need to be clarified in order to reduce court time and make things move more speedily. So it is useful for Parliament to be addressing this legislation.

One of the benefits of having a Government that is a bit hamstrung on the numbers, is that there is much less on the legislative agenda and therefore the House has the opportunity to go back through these Law Commission reports. The commission does an enormous amount of good work in making all these recommendations, and they are often ignored for decade after decade. It is only when we have a hamstrung Government that we able to bring this stuff to the House and get it through. This is not sexy legislation but is important law reform. Indeed, that is the role of the Law Commission. So I say: “Yay for the MMP environment!”.

I thank Mr Power for making a number of good points, which were backed up by Kate Wilkinson. Although the bill looks quite straightforward on the face of it, it has some difficult, knotty issues. It has complexities that we need to work through.

I would like to touch on a couple of points raised by Mr Power. The first is whether the bill would apply where a person kills someone in self-defence. The way I read the bill, I would have thought that it would not apply. Perhaps I misunderstood what is meant by “homicide”. I would have thought that someone using the defence of “self-defence” would be found not guilty. It raises another question around the interpretation of self-defence, particularly in cases raised by Mr Power of domestic violence and longstanding abuse. I know of difficulty and uncertainty in the courts around the interpretation of self-defence where a person does not kill someone in the heat of the moment when under attack, but after perhaps decades of oppression and abuse, one day that person snaps and kills another person. I understand there have been cases of that nature where there has not been a finding of self-defence. I think many members would have a great deal of empathy with that sort of case. There are difficult issues around self-defence that we need to work through.

Another issue raised by Mr Power, and also by Ms Wilkinson, related to timing when someone is found guilty and, ultimately, the conviction is quashed, as provided for in clause 13(1), but that applies after considerable time. That raises difficult issues in terms of the restitution that will go to people who have been unfairly deprived of a benefit, possibly a substantial benefit, through no wrongdoing of their own.

The fact of people being wrongfully found guilty is a live issue in this country. A number of cases concern those of us who are worried about the state of the criminal justice system. A number of people in jail have convictions that raise concern among members of the public, and some members of this House. The proposal for an independent body to review cases for possible miscarriages of justice is an idea whose time has come. That issue relates to the bill, as well.

Mr Power raised the question of insanity, but I think he is wrong. From my reading of clause 14, I think that concern is addressed. He wondered what happens when a person kills someone and is found to have been insane at the time. I think clause 14 is quite clear. Although we could argue about the policy intent, I do not think there is any confusion.

The only other issue I would like to raise on behalf of the Green Party at this stage, was also raised by Kate Wilkinson. If someone is alleged to be guilty of the homicide of a person but has not been prosecuted in New Zealand, this bill would allow a court, in hearing the proceedings, to decide, for the purposes of this legislation, whether the killing of a person or a child who has not become a person has taken place; if so, if the alleged killer had been prosecuted in New Zealand, that person would have been found guilty of the homicide of that person, or been found not guilty by reason of insanity. The point that concerns me, and was raised by Ms Wilkinson, was that the decision would be based on the balance of probabilities. That is a concern, because it seems to produce a real anomaly within the justice system whereby if a person is going to be criminally prosecuted it must be beyond reasonable doubt, but for the purposes of this bill it would be on the balance of probabilities.

That is a real concern, and particularly in light of increasing reliance of the test of balance of probabilities into areas where it does not rightly belong. Again I refer to the Proceeds of Crime Act that Mr Mark mentioned, and although the legislation has not yet been introduced to the House, we know the Government has announced a policy intention of saying that people will have their property confiscated on the basis of a balance of probabilities test. Even if a person has been acquitted in this country, under that proposed legislation property could still be confiscated on the balance of probabilities if the person is assumed to have committed an offence.

This bill is simply a part of that broader package of the extension of the balance of probabilities test into areas that really lie on the border between civil and criminal proceedings, and in areas where they do not rightly belong. Even if a person has not been found guilty of a homicide, if he or she is found, on that basis, to have killed someone wrongfully, then the effect on the person’s reputation will be considerable. These are very real issues, but, nevertheless, the Green Party supports the bill to the select committee and looks forward to dealing with these questions in more detail at that stage.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Tēnā koe, Mr Speaker. Tēnā tātou te Whare. I would like to start my kōrero today by referring to some comments made by both the Labour Party and National Party speakers on this bill, all of whom referred to the “settled principle” or the “established and accepted practice” that people should not be able to profit from their wrongdoings. I have to ask, if that is so, then how come Governments in the 21st century in this country are still making millions and millions of dollars off the resources that have been stolen from Māori people for the last 180 years, continuing with the foreshore and seabed and are likely to continue with the theft of the water, as well? I think if we are going to start throwing out those kinds of phrases, then perhaps people need to be thinking about making them stick to reality in this House.

The Succession (Homicide) Bill brings with it a heavy burden for the Māori Party, because of the huge and gut-wrenching impact homicide—murder—has on Māori. Murder breaks the sanctity of whakapapa, which is one of the foundation blocks of a healthy Māori society. Everything has a mauri, a life essence, and every human life is a precious and revered gift. So homicide is the severing of whakapapa. It is more than just the destruction of an individual; it is also about the shattering of whānau, of hapū, and of iwi. I regret to add that recent studies confirm that those adults most at risk from homicide are Māori men aged 20 to 24. Even more alarming is the fact that those most at risk from child homicide are Māori baby boys.

This bill is supposed to stop people who kill somebody from benefiting from their victim’s death, whether it is through insurance, inheritance, or other means. In general terms I can say that the Māori Party supports the intention of this bill to clarify the law preventing murderers from benefiting from their victim’s death, to reduce the number of disputes referred to the courts, which is often costly, complex, and lengthy, and to clarify the principle that nobody should profit from the murder of another or from their own wrongdoing.

As we debate this issue, I note that there are still many other major questions about the trends in homicide that warrant further inquiry. One of the most obvious is that while most of the other rich nations have reduced their child homicide rate over the last 20 years, New Zealand’s has increased. I am not trying to score points; this is too serious for that. But in the whole of the OECD New Zealand is the third-worst for child homicide, and, within that, Māori children are twice as likely to be killed as any other. It seems that for all our good intentions we are failing ourselves, and even more important, we are failing our future generations.

There are heaps of theories about why homicide is on the rise in Aotearoa. Professor Eru Pōmare in his 1995 report, Hauora: Maori Standards of Health, said that increasing homicide rates amongst Māori “indicate a classic pattern of a population undergoing an upturn in unemployment and hardship”. His statement is backed up by the US experience, which shows that a 1 percent rise in unemployment leads to a 6 percent rise in homicide rates.

Another explanation for rising homicide trends is the impact of alcohol. In Australia homicide rates have gone up in line with higher per capita alcohol consumption, and in New Zealand alcohol abuse has also been identified as one of the major risk factors in our annual average of 71 homicides. Again, drawing on international experience and our own statistics, we see that domestic violence and homicides are increasingly associated with problem gambling. Studies show that many gamblers are becoming even more reliant on loan sharks, and more desperate to keep their heads above water—and, indeed, on their own shoulders. In this week, Mental Health Awareness Week, I would just like to point out that contrary to popular misconception, only a small number of homicides are committed by people with severe mental illnesses.

I do not mention these arguments to detract in any way from the brutality of murder or to try to lessen the numbing sense of loss for those families who have suffered a loss by homicide. I raise them because they highlight a number of areas where we as a nation can and should be taking concrete steps to reduce our murder statistics. Most murders in Aotearoa are committed by people who are closely related to the victim, but perhaps the most chilling analysis applies to child homicide, which shows that nearly every child killed is killed by someone within his or her immediate family circle. Our kids are being killed by parents, step-parents, grandparents, de facto partners, brothers, sisters, or other relatives. Our kids are being killed by us, and for me the most chilling aspect of that analysis is that nearly half of those kids are being killed by Māori.

I said earlier that the Māori Party was apprehensive about this bill because Māori live every day with the profile of those who die from homicide; indeed, we live with the profile of those who commit homicide as well, for both the perpetrators and the victims are disproportionately Māori. It is because of that and because of our knowledge of the impact that this bill will have on future generations that I signal here a number of concerns about the effect this bill may have on denying a person’s whakapapa because of an act they will regret for the rest of their life, the possibility of denying a person’s descendants their inheritance, and the ready acceptance by society of a Māori profile when homicides are committed but the denial of tikanga Māori as a way of dealing with many of the factors that lead to homicide. The Māori Party will be watching carefully to ensure that convicting someone of homicide does not disenfranchise his or her mokopuna from their rights to their whakapapa, their whānau, and their whenua.

We also notice that there are still some critical issues that need to be defined in this bill, in terms of how we deal with people who, whether intentionally or recklessly, unlawfully kill another person. These are questions like: if the person who kills is prevented from receiving property, then who should receive it? What if all parties affected by a homicide feel that denial of inheritance should not apply? What about the succession to and disposal of Māori land, which is dealt with under the Te Ture Whenua Maori Act of 1993, if the bill details only the relationship of the Land Transfer Act? What about the provisions regarding Māori freehold land or Māori land interests that are not properly covered by this bill but that have huge implications for Māori?

I return to some of the key issues I raised during this kōrero. Of course, there is already a huge body of research about many of the factors critical to the understanding of homicide, such as alcohol consumption, the availability of weapons, gambling, poverty, stress, unemployment, and hardship. We know that most of these factors can be positively addressed through well-understood and clearly targeted policy intervention. That they are not suggests a massive and abysmal failure in the Government’s ability to manage the transition between hard data, positive policy-making, and effective intervention. This bill may be specific to one aspect of homicide, but any time is a good time to speak to the factors contributing to this problem and what value we truly place on the right to life, liberty, and security.

In closing I wish to mention something my co-leader is noted for having said about the death of the Kāhui twins. When asked whether they looked peaceful, he said: “No, they looked dead.” We need to restore hope and pride in the people of this nation. Just as we as a Māori people need to look beyond the beauty, the traditions, and the highlights of our own history, and take up the challenge of dealing with the unacceptable levels of murder within our own whānau, hapū, and iwi, so too do we as a nation need to look beyond the romanticism of death, and deal with the reality of homicide and the factors that contribute to this blight on our society. Kia ora, Mr Speaker.

CHESTER BORROWS (National—Whanganui) Link to this

With the expected caveat of the comments made by the previous speaker, Hone Harawira, in relation to our colonial history, it has long been a tenet of criminal law in New Zealand that an offender does not benefit from his or her crime. I am pleased that he spent some time talking about the murder statistics within this country. As this country unfortunately has a well-deserved reputation and an abysmal record in relation to murder, I do not think we should consider legislation that contains in its title the word “homicide” without stopping to think about our statistics in relation to that.

To our shame, the New Zealanders killed by homicide—that being the killing of one person by another—whether through murder, manslaughter, infanticide, or some other culpable killing, number about 100 people a year. If we killed at the same rate as that of the United Kingdom, it would be only 25 people a year. I say “only” advisedly, because even 25 is too many. The fact is that I do not believe for a moment that enough consideration is given to why that actually happens. Any one of us probably stops and thinks for a few moments about why that may be happening, but it does not seem that a heck of a lot of people think seriously about why it is the case, and what we can do to change that. As has already been alluded to, we know a lot of the demographics of the people who are involved, either as victims or offenders. We do know that it happens principally within our families, and we do know that it is a disgraceful record.

So the challenge is a real one. We in this House need to grab hold of the challenge and do something with it, rather than refer to it from time to time, just as I am doing now and just as I did in my maiden speech—as I am sure all members will remember. This tenet is applied to the lesser crimes of theft, robbery, or burglary: a person does not profit from his or her own crime. A convicted accused who does not cough up as to where the stolen items or money are will receive a more serious sentence than people who do. In order to take account of the fact that the accused knows where the profits of his or her crime are but has not disclosed that, the accused will receive a stiffer penalty than if he or she had led the police to the stash and made it available for return. National will support this bill, because it is fair and just that a murderer who has killed—one way or another—a person from whom he or she would inherit is prevented from inheriting, even if the profit was to come by way of a non-testamentary bequest like an insurance policy or payout, or of an appropriation of property jointly owned and tenanted.

The question was raised by my colleague Simon Power as to just when the offender is deemed to be guilty: is it after the defended hearing, is it on conviction, is it after a subsequent appeal or some supplementary appeal on top of that—say, the Supreme Court—or is it at the end of some sort of commission of inquiry? That is unclear and needs to be made clear.

I have some objection too to the circumstances of assisted suicide. Why should one sibling be able to profit from the assisted suicide of, for example, a sick parent, when that action may be a decision taken by the sibling of the now deceased parent? For instance, a parent who is very sick may be incapable of making a reasonable, rational decision, or may not be soberly situated so as to be able to make such a decision. One member of a family could have a discussion and maybe arrange for an assisted suicide—maybe as a result of a long discussion, or as a result of manipulation. That would be a situation of an assisted suicide occurring without any prior knowledge by the other siblings. The other siblings could have some real concerns about the brother or sister who aided the suicide benefiting from the homicidal act. We have seen that situation arise, significantly, in our media—and in that situation, of course, the person was convicted of manslaughter.

In a slightly lesser category of assisted suicide—and that was, more or less, the defence run in the case I mentioned—we are left with the circumstance of a homicide by way of an assisted suicide, however that may have been accomplished, whereby the other beneficiaries of the estate, the siblings, the grandchildren, or maybe the partner, may have had no input into the decision of the deceased to take his or her life. Maybe it has been done in secret, maybe the deceased was not capable of conveying the decision, or maybe the other beneficiaries did not even know that such a discussion was being held. At the end of it, the person who assisted in the suicide may be a beneficiary of the will, or at least of part of the estate. I think the courts should not assist a person like that to profit from that situation. It does not appear that that concern has been relatively well canvassed or considered by those who have prepared this legislation.

Another concern I have is about who will monitor the applications. Who will watch just who is making applications for probate? If we take a situation like the scenario outlined by my colleague Kate Wilkinson—the situation of the reckless-driving husband—we can imagine a scenario whereby mum and dad have their wills with a local law firm, each is named as an executor of the other’s will, and their common solicitor is part of that, as well. If mum is killed in the crash caused by the reckless-driving husband, who is left? The bill quite clearly says that the husband cannot be an executor or have rights of administration over the will, but it is the duty of the solicitor to act in the best interests of his client—and the surviving client, of course, is the husband. I have some concerns around that issue.

The bill also amends the Sentencing Act 2002 by inserting section 146A, which states that a certificate of conviction can be issued by the court on application by an informant. I wonder who is expected to be the informant in that situation. Maybe we are making the assumption that members of the public or other beneficiaries will be watching on. In the scenario Kate Wilkinson laid before the House, the only other beneficiaries may be the couple’s children. Who will intervene on behalf of them? Surely there should be some sort of Government agency to look after that. It could not be expected that the police should follow that issue through after, for instance, the court case around the car crash and the subsequent coroner’s hearing. There is no obligation on the police at the moment to follow through and to monitor subsequent civil actions in respect of an estate.

So those are a couple of issues that I have highlighted. I hope that they will be covered during the course of select committee debate and that those concerns will be laid to rest.