Adams on Criminal Law

Crimes Act 1961

167 Murder defined

Culpable homicide is murder in each of the following cases:

(a) If the offender means to cause the death of the person killed:

(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be
likely to cause death, and is reckless whether death ensues or not:

(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily
injury as aforesaid to one person, and by accident or mistake kills another person, though he does not
mean to hurt the person killed:

(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby
kills any person, though he may have desired that his object should be effected without hurting any one.
Compare: 1908 No 32 s 182

Commentary - Adams on Criminal Law

Cross references

ss 158-166 homicide

s 168 further definition of murder

CA167.01 “Culpable homicide”

Sections 167 and 168 need to be read along with the definitions of “homicide” and “culpable homicide” in ss 158
and 160; and it must be borne in mind that nothing can be murder under s 167 or s 168 unless it is homicide as
defined in s 158, and a culpable homicide as defined by s 160. Conversely, murder may be committed in any of
the ways contemplated by s 160.

CA167.02 Requisite mens rea

Sections 167 and 168 define the mental element required for murder. At common law the mens rea of murder
has traditionally been called “malice aforethought”, and historically it included:

(a) “Express malice” (intention to kill);

(b) “Implied malice” (intention to cause grievous bodily harm); and

(c) “Constructive malice” (where the accused may not have had either of those intentions, but killed in the
course of committing a violent felony, or while resisting lawful arrest or detention).

In England the definition of murder has yet to be reduced to statutory form, but as a result of legislative reform (s
1 Homicide Act 1957, which abolished constructive malice) and judicial development, it now appears that what is
always required is proof of an intention to kill or cause really serious injury, and “intention” does not include mere
foresight that one of these consequences was a probable, or even a highly probable, consequence of the
accused’s conduct: R v Moloney [1985] AC 905; [1985] 1 All ER 1025 (HL); R v Hancock [1986] AC 455; R v
Woollin [1999] 1 AC 82; [1998] 4 All ER 103 (HL). The provisions of s 167(b) and (d) and s 168 preserve aspects
of “implied” and “constructive” malice, but in significantly qualified forms. In New Zealand the law is no longer
concerned with common law definitions of the mens rea of murder, but solely with the construction of ss 167 and
168; English decisions will be of value only in so far as they may assist in construction: compare R v Piri [1987] 1
NZLR 66 (CA); see also R v Martin 14/2/05, CA199/04.

CA167.03 Proof of intent

In so far as DPP v Smith [1961] AC 290; [1960] 3 All ER 161 (HL) laid down an objective test of intention, that
there is a presumption of law that a person intended the natural and probable consequences of his or her
conduct, it is now regarded as wrong: Frankland v R [1987] AC 576 (PC); see also R v Martin 14/2/05,
CA199/04 (application for leave to appeal dismissed: Martin v R [2005] NZSC 33). Where ss 167 and 168
require intention, knowledge, or some other mental state, the test is a subjective one depending on what in fact
was the intention, knowledge, or mental state of the accused, and not an objective one having reference to the
way in which other persons’ minds might be expected to work. The use of the word “presumption” is to be
avoided because it can be understood as importing a legal presumption, which would be entirely wrong: R v
Kamipeli [1975] 2 NZLR 610 (CA); Martin (above). On the other hand, although the test is subjective,
consideration of what a reasonable person would anticipate as a consequence of the act is relevant, along with
all the circumstances, to the determination (by inference) of what in fact was the accused’s state of mind: for
example, R v Noel [1960] NZLR 212 (CA), at pp 215-216; R v Steane [1947] KB 997; [1947] 1 All ER 813 (CA),
at p 1004. However, the Judge should be careful not to invite the jury to “resort to a tenet of general human
behaviour”. In R v Schonewille [1998] 2 VR 625 it was held to be wrong to direct that “one normally intends the
consequences of one’s act”. Murder may sometimes be withdrawn from the jury because the circumstances
were such that no reasonable jury could infer any of the states of mind required for murder: R v Neutroski (1990)
6 CRNZ 96; R v Pira (1991) 7 CRNZ 650. For the onus of proof, see Woolmington v DPP [1935] AC 462 and
CA20.38, 48, 23.01, 44, 46, 47.

However, the fact that an accused may have been in a state of reactive depression at the time of the killing and
had been suffering from a depressive illness will not necessarily mean that he or she was not capable of forming
the necessary intent: R v Taylor 26/11/93, Williamson J, HC Dunedin T26/92. As to the relevance of stress and
exhaustion to intent to kill, see Martin (above).

CA167.04 Psychiatric evidence as to intent

Generally, it may be said that a psychiatrist’s opinion is relevant to determining why an accused acted in a
certain way and may be relevant to determining the degree and nature of the accused’s intent. However, it is not
relevant to the issue of whether the accused had the necessary intent, which is quintessentially a matter for the
jury: Ferguson v R [2010] NZCA 2. Formerly, when life imprisonment was the mandatory penalty for murder,
such evidence was also irrelevant to the question of punishment. However, s 172 now provides that anyone who
commits murder is liable to life imprisonment but that provision is subject to s 102 Sentencing Act 2002 which
enacts a presumption in favour of life imprisonment unless, given the circumstances of the offence and the
offender, such a sentence would be manifestly unjust: see CA172.01. Expert evidence of the nature and degree
of intent may therefore be relevant in determining the punishment for murder. As to the relevance of diminished
intellectual capacity in imposing a sentence of less than life imprisonment, see R v O’Brien (2003) 20 CRNZ 572
(CA); R v Mayes [2004] 1 NZLR 71; (2003) 20 CRNZ 690 (CA); R v Harrison-Taylor 12/9/05, Ellen France J, HC
Auckland CRI-2004-092-1510.

A psychiatrist who gives evidence of an illness may also give evidence as to the possibility that it resulted in
absence of intent: R v Gordon (1993) 10 CRNZ 430 (CA); CA23.38. However, the Courts remain reluctant to
allow expert evidence on whether an accused was or was not acting with a particular intent, although properly
supported evidence on the issue from an appropriately qualified expert may be permitted if the accused was
abnormal, whether mentally or in some other relevant way: R v Makoare [2001] 1 NZLR 318; (2000) 18 CRNZ
511 (CA); Ferguson (above).

In R v Martin 14/2/05, CA199/04, the Court of Appeal considered it inappropriate for a clinical psychologist to
have given evidence about “cognitive dissonance”, particularly when that evidence went to the central issue of
intent and suggested, without any proper basis, that what was only a speculative possibility was a high
probability.

CA167.05 Paragraph (a) — intentional killing

This is the plainest case of murder. The equivalent at common law is where the accused “intended” to kill, and
what s 167(a) requires is “an actual intent to kill”: R v Aramakutu [1991] 3 NZLR 429; (1991) 7 CRNZ 114 (CA),
at p 432; p 117. If an accused acts for the purpose of killing, or in order to kill, he or she means (and intends) to
kill, whatever may have been his or her motive or reason for pursuing that object. It is equally clear that if killing
is not the accused’s purpose the mere fact that he or she realised it was a probable or even highly probable
consequence of his or her conduct does not mean that he or she “intended” it: R v Moloney [1985] AC 905;
[1985] 1 All ER 1025 (HL); R v Hancock [1986] AC 455; R v Woollin [1999] 1 AC 82; [1998] 4 All ER 103 (HL).
While this may be more true of “means”, which would seem to have a more purposive connotation than
“intends”, the two terms have been held to be synonymous: R v Juanetty (2005) 200 CCC (3d) 116 (Ont CA).
However, if the accused has the purpose of bringing about one result but believes that it is certain, or virtually
certain, that in achieving this he or she will also cause another result (for example, a killing) it is perhaps
arguable that he or she necessarily “intends” the latter, although it seems that English Courts regard this as no
more than evidence from which intent may be inferred, although the inference may be “irresistible”: R v Nedrick
[1986] 1 WLR 1025; 3 All ER 1 (CA), at pp 1027-1028, interpreting Moloney and Hancock; Woollin. See also
CA20.14-18.

In the context of murder, the terms of s 167(b) and (d) are such that this issue is unlikely to trouble New Zealand
Courts: compare R v Piri [1987] 1 NZLR 66 (CA), at p 82. However, these provisions would not resolve the issue
in a case such as Woollin (above), where the accused had killed a young child by throwing him on to a hard
surface, and it was contended that he neither wanted nor thought about the consequences of his act. It was held,
approving Nedrick (above), that the required “intention” to kill or cause serious harm could be inferred from the
accused’s foresight only if he was aware that such a consequence was “a virtual certainty (barring some
unforeseen intervention) as a result of the defendant’s actions”.

As to the relevance of intoxication to the formation of intent, see CA23.51; R v Kamipeli [1975] 2 NZLR 610
(CA); R v Dixon [2008] 2 NZLR 617; (2007) 23 CRNZ 911 (CA); R v Tukaki 14/6/06, CA360/05; R v Barlow
15/11/06, CA268/06; R v Turaki 23/11/06, CA47/06.

CA167.06 Paragraph (b) — reckless killing

Under this paragraph the accused need not have had the object of killing anyone; it suffices that the offender’s
object was to cause bodily injury to the person killed, knowing it to be likely to cause death, and being reckless.
“Reckless” in para (b) means a conscious taking of the risk of causing death; and it does not suffice that the
accused failed to give thought to a serious risk of this, or would have foreseen it if he or she had paused to think
about it. The requirement of recklessness indicates that the accused was willing to risk causing death, and
serves to point the contrast with para (a), but usually it adds nothing of significance to the preceding words.
These require that the accused had an actual or conscious appreciation that death was a likely consequence of
the act, a state of mind that must exist at the time of an act which either caused death, or was an operating and
substantial cause of death: R v Harney [1987] 2 NZLR 576 (CA); R v Fryer [1981] 1 NZLR 748 (CA); R v Nathan
[1981] 2 NZLR 473; R v McKinnon [1980] 2 NZLR 31 (CA); R v Dixon [1979] 1 NZLR 641 (CA); R v Aramakutu
[1991] 3 NZLR 429; (1991) 7 CRNZ 114 (CA), at p 432; p 117; R v Bristow 2/3/00, CA490/99; R v Lee [2006] 3
NZLR 42; (2006) 22 CRNZ 568 (CA). See also R v Lawford (1993) 61 SASR 542 (SC). In R v Meads 20/4/00,
CA514/99; CA525/99 the Court concluded that “reckless” in s 167(b) simply means “that there must be a
conscious taking of the risk of causing death”, and it was unwise for the Judge to also say that it meant
“careless”, which obscured the need for conscious awareness of the risk.

In R v Cooper (1993) 18 CR (4th) 1 (SCC), the aspect of recklessness in a provision identical to s 167(b) has
been considered to be an afterthought, since to secure a conviction under the section it must be established that
the accused had the intent to cause such grievous bodily harm and knew it was likely to cause death. It was
stated at p 7:

“One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a
deliberate disregard for the fatal consequences which are known to be likely to occur.”

See also Harney (above) which considers Court of Appeal decisions where it had been suggested that the
reference to recklessness in s 167(b) added nothing of significance to the preceding requirement of knowledge.
There is no equivalent to para (b) at common law where murder requires either an intent to kill or an intent to
cause grievous bodily harm. Unlike para (b), the latter form of murderous mens rea does not require knowledge
that the intended harm is likely to cause death. The availability of reckless murder in New Zealand under para (b)
avoids the difficulties that occur at common law in establishing intent for murder: see R v Martin 14/2/05,
CA199/04, referring to R v Nedrick [1986] 1 WLR 1025; 3 All ER 1 (CA); CA167.04.

There must be a nexus between the injury and the knowledge and recklessness of the accused: R v Pira (1991)
7 CRNZ 650. This test refers to the accused’s actual state of mind and is “purely subjective”: R v Dixon (above);
R v Gush [1980] 2 NZLR 92 (CA), at p 96. It is not sufficient that the accused should have known that death was
a likely consequence, although it is proper to determine that there was such knowledge by inferring from the
nature of the act and the circumstances that he or she must have known: R v Leaaetoa 30/6/94, CA520/93;
CA521/93; CA544/93; see also R v C 24/6/99, CA90/99 (very young age of victim supported the inference).
Moreover, “likely” does not mean that the accused must believe that death is more likely than not to result, and it
suffices that the accused knew that death “could well happen”, or was a “real” risk: R v Piri [1987] 1 NZLR 66
(CA); Harney (above); Gush (above). In general, it is prudent to use one or both forms of words in directing
juries: R v Meynell [2004] 1 NZLR 507; (2003) 20 CRNZ 526 (CA).

It has also been suggested that there may be cases where the circumstances “irresistibly compel” the conclusion
that the accused was reckless within the meaning of para (b), so that in the absence of provocation the
possibility of manslaughter need not be considered: R v Black [1956] NZLR 204 (CA), at p 210. However, when
a jury is required to decide whether an accused was guilty of murder, it may be doubted whether it could ever be
correct to remove from the jury the question whether the test in para (b) was satisfied, when the prosecution
relies on it.

Where, during the course of a prolonged beating, multiple and serious injuries were inflicted on the victim, the
Crown was not bound to isolate the fatal blow. It was enough to point to a range of possibilities. Nor was the jury
required to agree on the precise mode of death so long as it was satisfied that the accused must have caused it
with the requisite intent: R v Ryder [1995] 2 NZLR 271; (1995) 13 CRNZ 81 (CA); R v Bristow 2/3/00, CA490/99.
However, it seems that unanimity as to cause will be needed if there were two possible causes and a defence
might be available in respect of one but not the other: R v Menzies 16/10/97, CA222/97.

Where intoxication is in issue, the jury must be directed on the relevance of intoxication to each of the mental
elements required by s 167(b): R v Tukaki 14/6/06, CA360/05; R v Dixon [2008] 2 NZLR 617; (2007) 23 CRNZ
911 (CA)

CA167.07 Paragraph (c) — killing by accident or mistake

Paragraph (c) extends the effect of paras (a) and (b) to cases where “by accident or mistake” the accused kills
someone other than the person he or she meant to kill or injure. Although in a general sense a killing by
“mistake” can also be described as an “accident”, and vice versa (Timoti v R [2006] 1 NZLR 323; (2005) 21
CRNZ 804 (SC)), the case will be one of “mistake” when the accused accomplished what was intended but
mistook the identity of the victim, and one of “accident” when the accused aimed at an identified victim but killed
another. See Droste v R (1984) 6 DLR (4th) 607 (SCC), at pp 613-614, where the Supreme Court of Canada
applied a similar provision to affirm a conviction of murder when the accused had tried to kill his wife (who
survived) but in fact killed his children (perhaps unintentionally).

Paragraph (c) is a particular statutory application of a more general principle commonly called “transferred
malice”, pursuant to which an accused is guilty of an offence if he or she brings about the actus reus of an
offence in respect of which he or she had the required mens rea, notwithstanding that the result may be
unintended and unforeseen in a way which is immaterial to the definition of the offence: see Timoti (above). Thus
if A intended to kill B but by accident or mistake killed C, A’s malice towards B was transferred to C. In such a
case A will be guilty both of the murder of C and the attempted murder of B: see, for example, R v Clayton
[2008] NZCA 523. In the context of murder it is a very old principle (Gore’s Case (1611) 9 Co Rep 81; 77 ER
853) which has also been applied to uphold convictions for manslaughter or wounding when the accused acted
with the mens rea appropriate to those crimes but struck an unintended victim: R v Gross (1913) 23 Cox CC
455; (1913) 77 JP 352; R v Latimer (1886) 17 QBD 359. For the application of the principle to assault, see
Chandler v Police [2010] NZAR 25 (HC); Narayan v Police [2010] NZAR 36 (HC). In A-G’s Reference (No 3 of
1994) [1996] 2 All ER 10; [1997] 3 WLR 421; [1998] AC 245 (HL), the House of Lords held that if the accused
attacked a pregnant woman with murderous intent directed at her, and as a result her unborn child was injured
and died after birth, that could not be murder at common law, although it was manslaughter. However, s 167(c)
appears to be capable of making such killing of the child murder, regardless of whether the accused knew of the
pregnancy. If the only injury intended was to the unborn child, the case might fall within s 167(d). See CA167.10.
See also R v Martin (1995) 13 WAR 472 and CA159.02.

In some cases the accused may have intended to kill or injure one person but may be held to have killed or
injured another notwithstanding that the most immediate cause of the death or injury was an innocent act of the
intended victim, or a third person: for example R v Pagett (1983) 76 Cr App R 279; R v Mitchell [1983] 2 All ER
427; (1983) 76 Cr App R 293 (CA). Presumably such a case involves an “accident” within s 167(c).

The words “by accident or mistake” also appear in s 169(6) which preserves the partial defence of provocation in
any case where the accused, under provocation given by one person, by accident or mistake kills another: see
CA169.21.

CA167.08 Killing in attempting to commit suicide

At common law suicide was the crime of self-murder and if an accused unintentionally killed another when he or
she unsuccessfully tried to kill himself or herself the doctrine of transferred malice applied and the accused was
guilty of murder: R v Hopwood (1913) 8 Cr App R 143; R v Spence (1957) 41 Cr App R 80. It is submitted that
para (c) cannot apply to such a case. Homicide, and therefore culpable homicide, is confined to the killing of a
human being “by another” (s 158) and it follows that s 167(a) and (b) requires an intent to kill or injure someone
other than the accused. Consequently, there is no murderous mens rea to transfer under para (c). The same
conclusion would follow at English law as a result of the abolition of the crime of suicide by the Suicide Act 1961
(UK). The equivalent provision to s 167(c) in the Canadian Criminal Code has been held not to apply to the
killing of another person in the course of a suicide attempt: R v Fontaine (2002) 168 CCC (3d) 263. See further
R v Fontaine (2005) 199 CCC (3d) 349 (Man CA).

CA167.09 Paragraph (d) — killing in pursuing an unlawful object

Paragraph (d) is a qualified application of the old common law felony murder rule: Timoti v R [2006] 1 NZLR 323;
(2005) 21 CRNZ 804 (SC). Under the provision, an accused need not intend to harm anyone and may even
have desired that his unlawful object should be effected without hurting anyone. Although recklessness is not in
terms an element of liability, para (d) is essentially directed at consciously running a risk that death could well be
caused in pursuing an unlawful object.

The words “known to the offender to be likely to cause death” in para (b) connote the same mental element as
the words “knows to be likely to cause death” in para (d), although the subject-matter of the knowledge, bodily
injury in the first case and an act done for an unlawful object in the other, may embrace different circumstances:
R v Fryer [1981] 1 NZLR 748 (CA); see also R v Aramakutu [1991] 3 NZLR 429; (1991) 7 CRNZ 114 (CA).
Since the omission of the words “or ought to have known” from para (d) in 1961, both paragraphs require that
the offender actually foresees that death might well result, or is a real or substantial risk, at the time he or she
does the act which causes or substantially contributes to death: Fryer; R v Piri [1987] 1 NZLR 66 (CA). That is a
strict test, although the act which is the most immediate cause of death need not be viewed in complete
isolation, and in some circumstances the offender’s conduct immediately preceding it may be regarded as part of
the act causing death: R v Wickliffe [1987] 1 NZLR 55; (1986) 2 CRNZ 310 (CA). There is no requirement that
the offender foresaw precisely how death would occur: R v McKeown [1984] 1 NZLR 630 (CA); R v Meiler
(1999) 136 CCC (3d) 11 (Ont CA).

In Timoti (above), the Supreme Court held that, for the purposes of provocation under s 169(6), a killing under
para (d) can be by accident or mistake even though the accused foresaw that killing someone was a likely
consequence of pursuing an unlawful object. See further CA169.09A.

CA167.10 “Unlawful object”

Under para (b), the accused must have meant the act which caused or substantially contributed to death to
cause bodily injury, but this is not required under para (d); instead it is essential that the accused did the fatal act
for some “unlawful object”. Although it has been suggested that “all acts have an object” (R v Vasil (1981) 58
CCC (2d) 97 (SCC), at pp 107-108), it appears that it is required that the accused did the fatal act with the
motive or purpose of achieving some further or separate unlawful result: compare R v Hughes (1951) 84 CLR
170; R v Hakaraia [1989] 1 NZLR 745 (CA), at p 748. However, the fatal act and the unlawful object may be
different elements of a single offence, and the Court of Appeal has held that there is no requirement that the
further unlawful object must be “clearly distinct from the immediate object of the dangerous act”: R v Aramakutu
[1991] 3 NZLR 429; (1991) 7 CRNZ 114 (CA), at p 433; p 118. There the Court held that para (d) covered a case
where the accused, with knowledge that death was a likely result, lit a fire with the unlawful object of damaging
property (these two events being parts of the one offence of arson). The Court declined to follow the contrary
decision in R v Nichols [1958] QWN 46, without noticing that it had been overruled in Stuart v R (1974) 134 CLR
426. See also Timoti v R [2006] 1 NZLR 323; (2005) 21 CRNZ 804 (SC), where the appellant’s conviction,
though set aside on other grounds, was based on the unlawful object of burning down a building. Similarly para
(d) may apply if, with the requisite knowledge, the accused does a dangerous act for the purpose of unlawfully
procuring a miscarriage: R v Gould and Barnes [1960] Qd R 283. See Yeo [2001] NZLJ 41.

CA167.11 “Unlawful”

While New Zealand Courts have not found it necessary to consider the meaning of “unlawful” in this context, a
criminal offence would seem to be required: compare CA160.02. In relation to an equivalent code provision the
Supreme Court of Canada has been even more restrictive in declaring that “unlawful object” means “the object of
conduct which, if prosecuted fully, would amount to a serious crime, that is an indictable offence requiring mens
rea”: R v Vasil (1981) 58 CCC (2d) 97 (SCC). Be that as it may, it is apparent that the unlawfulness of the object
may result from the unlawfulness of the act or acts done to achieve it: compare R v Piri [1987] 1 NZLR 66 (CA),
at p 78 (in relation to acts of assault and false imprisonment done with the object of “extorting information by
compulsion or torture of her mind”); R v Hakaraia [1989] 1 NZLR 745 (CA) (assault with the object of stopping
calls for help); and the nature of the object may establish the unlawfulness of the act: compare R v Hamilton
[1985] 2 NZLR 245 (CA) (firing a gun with the object of frightening another).

CA167.12 “Object”

In Downey v R [1971] NZLR 97 (CA), the unconscious victim had died from carbon monoxide poisoning resulting
from a fire which had spread from some paper lit by the accused. It appeared that the accused’s object in lighting
the fire had been the “assaulting or injuring” of the victim, and not the burning of the house. In these
circumstances it was held that para (d) could have no application. The Court suggested that the unlawful object
“must be something other than personal injury to the victim”, for if that was the object the concluding words of
para (d) do not make sense (“though he may have desired that his object should be effected without hurting
anyone”). Subsequently the Court has held that the statement in Downey means only that for the purpose of
para (d) the unlawful object cannot be the same personal injury as that which causes death: R v McKeown
[1984] 1 NZLR 630 (CA); compare R v Hughes (1951) 84 CLR 170. However, para (d) can apply if the act
causing death is an assault on the victim (for example by beating and gagging) done with the ulterior object of
inflicting some other injury or assault (such as indecent assault): R v McKeown (above). Although Downey is
apparently assumed to have been a case where the accused’s “whole object” was to hurt the victim in the very
way he was hurt it is suggested that it would make no difference if (as seems likely) the object of the accused
was to damage property and also to (thereby) injure the victim, for assuming the requisite knowledge, such a
case falls within para (b), and it would be merely confusing to suggest that para (d) provided a distinct alternative
route to liability.

CA167.13 Homicide after series of acts (including killing a supposed corpse)

In some cases a person may have died after being subjected to a number of acts of unlawful violence, but there
may be doubts as to which caused death. The Courts have interpreted s 167 strictly and as a general rule a
conviction of murder requires proof that the accused had one of the states of mind required by s 167 at the time
when he or she did or was a party to an unlawful act which caused death. This may require the jury to be
directed that they are required to identify the act which caused death and to determine whether at the time of
that act the accused acted with one of the specified states of mind, although the jury may have regard to the
surrounding conduct to the extent that it assists in revealing the accused’s state of mind: R v Ramsay [1967]
NZLR 1005 (CA), at pp 1014-1015; R v Lewis [1975] 1 NZLR 222 (CA), at pp 226-227; R v Dixon [1979] 1 NZLR
641 (CA); R v Nathan [1981] 2 NZLR 473, at p 477; contrast Adams (1968) 1 Otago LR 278, p 291.

The difficulties inherent in this principle have been alleviated in a number of ways.

(1) Contributing causes

Where a number of different acts will each have contributed to cause death, it suffices if the accused acted with
one of the specified states of mind when he or she did an act which was “a substantial and operative cause of
death”. This will include a case where the accused did an act with murderous mens rea and as a result of that
the victim was incapacitated, and so was unable to avoid the fatal effects of a subsequent act, which may not
have been accompanied by mens rea: R v McKinnon [1980] 2 NZLR 31 (CA), at pp 36-37; R v McKeown [1984]
1 NZLR 630 (CA); R v Manuel and Grant (1984) 10 Crim LJ 110 (CA). Compare R v Wickliffe [1987] 1 NZLR 55;
(1986) 2 CRNZ 310 (CA), where the fact that the ultimate cause of death might have been a reflex action, or
accident, did not necessarily prevent a finding of murder, the immediately preceding unlawful acts being
identified as a cause of death, or as “part of the act causing death”.

(2) Unvarying state of mind

Where the victim died as a result of one or more acts forming part of an attack by the accused, and it is properly
to be inferred that during that attack the accused acted with one of the required states of mind, but there is no
evidential foundation for supposing his or her state of mind varied in any significant way during that time, it will
suffice that the jury be directed to determine whether the accused had the requisite intent or knowledge during
the attack. In such a case they need not be required to identify the particular act or acts which caused or
contributed to death: R v McKeown [1984] 1 NZLR 630 (CA) (this approach was applied when there had been
asphyxia after a virtually continuous attack involving beating, binding, and gagging over a short space of time); R
v Warren 20/11/00, CA315/00; see also R v Peters [2007] NZCA 180; R v Kengike (No 1) 30/4/07, Priestley J,
HC Rotorua CRI-2005-077-1325. Similarly, it may not be possible to identify which act caused death but a
finding of murder will be justified because the nature of each of the possible lethal acts was such that it can be
inferred that whichever it was was accompanied by mens rea; compare R v Ryder [1995] 2 NZLR 271; (1995) 13
CRNZ 81 (CA); Meyers v R (1997) 71 ALJR 1488. This may be important in the case of a joint attack where the
identity of the actual killer is uncertain. See R v Nathan [1981] 2 NZLR 473, at p 477, where the inference of
mens rea could not be drawn because the probable cause of death was a “minor blow” by an unidentified
member of a group of attackers. It may also be necessary to identify the fatal act if a defence may have been
available in respect of some acts but not others: R v Menzies 16/10/97, CA222/97. Unanimity on this may also
be necessary if the different possible causes of death were completely separate acts, and not part of a
continuous course of conduct: R v Boreman [2000] 1 All ER 307; [2000] 2 Cr App R 17 (CA); see also
CA167.15.

(3) One transaction

In Thabo Meli v R [1954] 1 WLR 228; [1954] 1 All ER 373 (PC), four persons had formed a plan to kill the victim
and fake an accident. Pursuant to this one of them struck the victim with intention to kill and, believing him dead,
they rolled him over a low cliff. In fact the victim was then still alive, but later died from exposure while
unconscious at the foot of the cliff. It was argued that this was not murder because while the blow was
accompanied by mens rea it did not cause death, and although the subsequent act did cause death it was done
without mens rea in the mistaken belief that the victim was already dead. It now seems clear that this argument
could have been rejected on the ground that the blow was a substantial contributing cause: R v McKinnon [1980]
2 NZLR 31 (CA); Turpin [1965] Camb LJ 170; Adams (1968) 1 Otago LR 278, p 287. However, the Privy Council
did not take this point, and instead affirmed the convictions of murder on the ground that:

“It appears to their Lordships impossible to divide up what was really one transaction in this way … the accused
set out to do all these acts in order to achieve their plan and as part of their plan; and it is much too refined a
ground of judgment to say that, because they were under a misapprehension at one stage and thought that their
guilty purpose had been achieved before in fact it was achieved, therefore they are to escape the penalties of
the law.”
This principle has also been applied to manslaughter, so that the accused may be convicted of that crime if he or
she injures the accused by a dangerous unlawful act without intending to kill, but in fact causes death by
disposing of what is mistakenly believed to be a corpse: R v Church [1966] 1 QB 59; see also R v Le Brun
[1992] QB 61; [1991] 3 WLR 653. Contrast A-G’s Reference (No 4 of 1980) [1981] 1 WLR 705; [1981] 2 All ER
617.

CA167.14 Mens rea and actus reus

When the principle in Thabo Meli v R [1954] 1 WLR 228; [1954] 1 All ER 373 (PC) applies, the accused may be
convicted if the actus reus was part of a single “transaction” or “series of acts” for which he or she was
responsible, provided he or she had mens rea during that transaction, although not at the moment the actus reus
was accomplished. The mens rea must, however, precede the actus reus: R v Dixon [1979] 1 NZLR 641 (CA), at
pp 646-647. The principle does not appear to be confined to where the offender causes the actus reus in the
mistaken belief that he or she has already done this (see R v Le Brun [1992] QB 61; [1991] 3 WLR 653), but in
other respects it has been allowed only restricted application in New Zealand.

In R v Ramsay [1967] NZLR 1005 (CA), the accused had beaten and gagged the victim, who had died of
asphyxia. This might have been caused by the blows or the gag and it was argued that even if the blows had
been accompanied by one of the states of mind in s 167 it could not be inferred that this was so of the gagging.
The trial Judge, however, directed that as the blows and the gagging were part of a single course of conduct, it
was murder if death had resulted from it and if the accused had any of the states of mind required in s 167
during the attack. In ordering a retrial the Court of Appeal appears to have held that this involved three errors:

(a) The Judge had appeared to direct the jury that the accused’s actions were an inseparable interconnected
series of acts, whereas this was a question for the jury to decide.

(b) The accused had not acted according to a “preconceived plan”. This was a fundamental distinction
between this case and Thabo Meli (above).

(c) Although Thabo Meli might apply in New Zealand where the prosecution asserts a deliberate intention to
kill in terms of s 167(a), at least if “there was a dominating intention running throughout a series of acts
which can fairly be taken as the intention actuating the fatal act”, it cannot apply when para (b) or para (d)
is relied on, for the terms of those provisions require proof of knowledge of the risk of killing at the time
when the act causing (or contributing to) death is committed: Ramsay (above), at pp 1014-1015.

CA167.15 Restriction of principle

The judgment in Ramsay has been criticised: Adams (1968) 1 Otago LR 278. The suggested restriction of the
principle to cases where the accused acted pursuant to a preconceived plan has not been applied in some other
jurisdictions: R v Church [1966] 1 QB 59; R v Moore [1975] Crim LR 229; R v Le Brun [1992] QB 61; [1991] 3
WLR 653; S v Masilela [1968] (2) SA 558; contrast R v Chiswibo [1961] (2) SA 714 (SR); compare Shoukatallie
v R [1962] AC 81. However, it was apparently maintained (obiter) in R v Manuel and Grant (1984) 10 Crim LJ
110 (CA). If the principle is not confined to cases where the offender acted pursuant to a plan, it might be
objected that the concept of “one transaction” is excessively uncertain, although perhaps this would be
sufficiently answered if it were confined to cases where the lethal act is done for the purpose of concealing the
offence the accused believes has already been committed: R v Le Brun (above).

Moreover, although the terms of paras (b) and (d) expressly or impliedly require knowledge to accompany an act
which causes death, the same is implicitly true of the intention required by para (a). Each paragraph applies only
to conduct which is “culpable homicide” or a “killing of a human being”: s 158. However, the correctness of the
distinction is perhaps assumed in R v Chignell [1991] 2 NZLR 257, also reported as R v Chignell and Walker
(1990) 6 CRNZ 103 (CA), at p 265; p 111, where the principle is regarded as confined to cases where it is
possible “to treat a number of successive acts as one transaction animated by the same intent”. See also R v
Takiari 22/7/99, CA273/98; CA274/98; R v O’Brien (2003) 20 CRNZ 572 (CA). In R v Menzies 16/10/97,
CA222/97, the Court of Appeal emphasised that even where the concept of “an indivisible series of act” is open,
it is for the jury to decide whether it applies.
See also R v Lee [2006] 3 NZLR 42; (2006) 22 CRNZ 568 (CA), for the general application of the series of acts
principle in the context of manslaughter by unlawful act; CA160.05.

CA167.16 Suicide in relation to murder

At common law suicide was regarded as murder, being “felony of a man’s self”: R v Dyson (1823) Russ & Ry
523; although attempted suicide was not attempted murder within a particular statute, and there was no such
thing as manslaughter of oneself: R v Burgess (1862) Le & Ca 258; R v Dias [2002] 2 Cr App R 5 (CA). Persons
aiding or abetting, or (after the passing of the Accessories and Abettors Act 1861 (UK)) being accessories before
the fact were also guilty of murder: R v Croft [1944] KB 295.

In New Zealand suicide at the latest ceased to be a crime when the Code of 1893 was enacted. It is not murder
because of the words “by another” in s 158 (words carried over from the Codes of 1893 and 1908), and it follows
that attempted suicide cannot be attempted murder of oneself. Under the earlier codes attempted suicide was a
crime (ss 173 and 193 of the earlier statutes), but this is not so under the present Act. Express provision,
however, is made in s 179 for parties to suicide. If a person actually kills another, the latter’s consent is no
defence to a charge of murder (s 63), although the offence is manslaughter only if done pursuant to a suicide
pact: s 180 (a new provision). Aiding or abetting suicide, or inciting, counselling, or procuring suicide or
attempted suicide, is a crime punishable by up to 14 years’ imprisonment (s 179) although the survivor of a
suicide pact is liable only to a maximum of 5 years’ imprisonment: s 180(2).

CA167.17 Assisting or inducing suicide

Generally a person who assists or induces another to commit suicide cannot be convicted of murder. Such a
person does not “kill” the other in terms of s 158. The common law liability of a person assisting or procuring
suicide did not depend on a theory that he or she had “killed”, but rather on the principle that he or she was a
secondary party to the suicide’s crime, and as such could be convicted of murder: R v Croft [1944] KB 295; R v
Dyson (1823) Russ & Ry 523; R v Russell (1823) 1 Moo 356. It is submitted that in general if a person kills
himself or herself by a voluntary act it is wrong to suppose that an aider, abettor, or procurer also “kills”. There is
a novus actus which breaks the chain of causation between the latter’s act and the death, and such a case is
more than adequately covered by s 179. The contrary view would leave prosecutors and Courts with no
adequate guidance on the question whether murder or s 179 should be relied on. However, a conviction for
murder is possible if an accused intentionally induces suicide by threats or fear of violence or by deception (s
160(2)(d)) and if the deceased was insane or an infant it may be that an abettor or procurer could be held to “kill”
that person, but otherwise in criminal law the conscious act of a sane person of responsible age should prevent
the act being imputed to another: contrast Pallister v Waikato Hospital Board [1975] 2 NZLR 725, at p 742; R v
Nbakwa 1956 (2) SA 557 (SR).

It will be homicide by the accused if death results from the combined effect of the actions of the accused and the
deceased, although not if the accused’s contribution was “negligible”: R v Jemielita (1995) 81 A Crim R 409 (WA
CCA) (a case of multiple injections). If the accused injures a person who later commits suicide because of the
injury, it has been suggested that the accused might be found to have caused death, and that the concepts of
novus actus interveniens and foreseeability should be avoided: R v Dear [1996] Crim LR 595. However, the
need to distinguish killing from aiding, abetting, and procuring suicide may mean that these concepts cannot be
avoided.

CA167.18 Killing by excessive force in self-defence or otherwise

Under s 62 where the law authorises the use of force, for example in self-defence or to prevent crime, there is
criminal responsibility for any excess, “according to the nature and quality of the act which constitutes the
excess”. It now seems quite clear that this means that if the accused caused death by an act done with
murderous mens rea the crime is not reduced from murder to manslaughter merely because there would have
been a complete defence but for the fact that a greater degree of force was used than the law authorised. At one
time Australian Courts held that at common law it might be manslaughter only if the accused had believed the
force to be necessary but had used force which was excessive because it was more than was objectively
reasonable: R v Howe (1958) 100 CLR 448; Viro v R (1978) 141 CLR 88. This has been rejected by the Privy
Council: Palmer v R [1971] AC 814; [1971] 1 All ER 1077 (PC); the English Court of Appeal: R v McInnes [1971]
3 All ER 295; the Supreme Court of Canada: R v Faid (1983) 145 DLR (3d) 67; and has now been abandoned
by the High Court of Australia, particularly because of the complexity it involves: Zecevic v DPP (1987) 162 CLR
645. It has also been rejected by the House of Lords: R v Clegg [1995] 1 AC 482; [1995] 2 WLR 80 (HL). It
seems inconceivable that it would now be adopted by New Zealand Courts: compare G Orchard [1978] NZLJ
478, p 480; Brookbanks, “Compulsion and Self-Defence”, in Essays on Criminal Law in New Zealand —
Towards Reform (1990) 20 VUWLR Monograph 3, pp 115, 116.

CA167.19 Indictment and alternative verdicts

It is sufficient to allege that “A murdered B at . . . on . . .” (form 4 in Schedule 2 to Act), without specifying which
of the provisions of s 167 and/or s 168 will be relied on. Before 1973 a proviso to s 340(1) prevented any count
charging any offence other than murder being joined with a charge of murder. This was repealed by s 9 Crimes
Amendment Act 1973 and there are no longer special rules restricting what charges may be included in an
indictment for murder. Pursuant to s 339(2), as substituted by s 8 Crimes Amendment Act 1973, on a count
charging murder the accused may in appropriate cases be found guilty of attempted murder, manslaughter, or
infanticide, but not of any other offence; attempt was not included before 1973.

CA167.20 Verdicts open to jury

It not infrequently happens that, on a charge of murder, the only verdicts that are properly open are murder or
manslaughter. This is so where the evidence unquestionably proves culpable homicide against the accused, and
there is no evidence to support any defence negativing responsibility (for example, insanity or self-defence). For
discussion of manslaughter as an alternative to murder, see CA171.11-18. It is now legally possible for an
indictment for murder to include a separate count for manslaughter as an alternative. In practice this is not done,
reliance being placed on the fact that the murder count includes manslaughter as an unstated lesser alternative.
It is thought that to include a separate count for manslaughter would tend to confuse the jury, and might invite
unjustified argument that manslaughter must on the facts be a proper alternative: R v Saunders [1988] AC 148,
at pp 162-163. When the evidence might justify acquittal of murder but a conviction of manslaughter, and the jury
return a verdict of not guilty of murder, the jury may and should be expressly asked whether they find the
accused guilty or not guilty of manslaughter: DPP v Nasralla [1967] 2 AC 238 (PC); R v Dwight [1990] 1 NZLR
160; (1989) 6 CRNZ 162 (CA), at p 166. In the latter case the Court of Appeal left open the question whether a
verdict of guilty of manslaughter may be accepted where the jury disagree on murder.

CA167.21 Culpable homicide by two or more persons

There is in this connection no difference in principle between murder and other offences, and questions of
complicity have already been discussed at length in the notes to s 66: see especially CA66.06, 09, 11 and
CA66.26. However, as questions of complicity are apt to arise in rather acute form in cases of homicide it is
desirable to refer here to some of the decisions. Mention may first be made of cases where there is uncertainty
as to who was the principal offender.

CA167.22 Principal or secondary parties

If the case is one where the evidence establishes murder on the part of one or more of a number of accused, but
it does not establish which, each may have to be acquitted if the evidence does not establish that they were
acting in concert, because the prosecution has not proved its case: R v Witika (1991) 7 CRNZ 621 (CA); R v
Singh 10/12/03, CA53/03; CA67/03; R v Abbott [1955] 2 QB 497; (1955) 39 Cr App R 141 (CA), at p 503; King v
R [1962] AC 199 (PC); R v Gibson and Gibson (1985) 80 Cr App R 24; R v Lane (1986) 82 Cr App R 5; R v
Russell (1987) 85 Cr App R 388. There is no special principle of law designed to ensure conviction when two or
more persons have attacked another who has subsequently died as a result of injuries received: R v Lewis
[1975] 1 NZLR 222 (CA), at pp 229-230.

On the other hand, an accused who joined others in an attack may be convicted as a principal if it is proved that
his or her acts, done with murderous mens rea, caused or contributed to the death, notwithstanding that acts of
others also contributed: Lewis (above), at pp 226-227. Even if it cannot be established whose acts immediately
brought about or contributed to a killing which resulted from an attack by a number of people, each may still be
convicted of murder if it is proved that, although there may have been no prearranged plan, each was aiding or
abetting the others, and each had murderous mens rea: Mohan v R [1967] 2 AC 187 (PC); R v Renata [1992] 2
NZLR 346; (1991) 7 CRNZ 616 (CA).

In at least some such cases, however, it seems to be the view of the Court of Appeal that an accused cannot
safely or lawfully be held guilty unless each of the attackers had the same murderous intent: Lewis (above); R v
Chignell [1991] 2 NZLR 257, also reported as R v Chignell and Walker (1990) 6 CRNZ 103 (CA), at p 266; p
111. In other cases it may be open to the prosecution to rely on the theory that whoever killed did so with
murderous mens rea, and the others aided and abetted with knowledge that the killer had one of the states of
mind required by s 167: R v Beazley [1987] 2 NZLR 760 (CA), at pp 762-763. Alternatively, if it can be inferred
that whoever caused death did so with murderous mens rea, and that the killing was done in furtherance of a
common unlawful purpose, every party to that common purpose may be convicted of murder if the various
requirements of s 66(2) are made out, whether or not the identity of the killer is established: R v Nathan [1981] 2
NZLR 473, at pp 476-477.

CA167.23 Guilt of secondary parties

Where the killer is guilty of manslaughter, a secondary party may also be guilty of manslaughter, but it is
uncertain whether a secondary party may be guilty of the more serious offence of murder except where a
statutory provision expressly provides for this: ss 169(7), 180(5); compare s 178(8); see CA66.06. However,
where the killer is guilty of murder, a secondary party may be guilty of either murder or manslaughter, according
to his or her mens rea, and such differentiation is possible under both s 66(1) and (2): R v Tomkins [1985] 2
NZLR 253; (1985) 1 CRNZ 627 (CA); R v Hamilton [1985] 2 NZLR 245 (CA); R v Te Moni [1998] 1 NZLR 641;
(1997) 15 CRNZ 439 (CA); R v Rapira [2003] 3 NZLR 794; (2003) 20 CRNZ 396 (CA). Although some details
remain uncertain, the law can be summarised as follows.

(1) Liability under s 66(1)

Where the killer is guilty of murder, anyone who helped or encouraged the act causing death will also be guilty of
murder under s 66(1) if he or she meant to help or encourage that act and knew or believed that the killer had or
would have one of the states of mind required by s 167 or s 168: see, for example, R v Hamilton [1985] 2 NZLR
245 (CA), at pp 249-250; R v Tomkins [1985] 2 NZLR 253; (1985) 1 CRNZ 627 (CA), at p 256; p 630; R v
Hardiman [1995] 2 NZLR 650; (1995) 13 CRNZ 68 (CA); see also CA66.19. It has been suggested that a
secondary party must personally have one of the intents required by s 167 or s 168, but this is not necessarily
the case: compare R v Te Moni [1998] 1 NZLR 641; (1997) 15 CRNZ 439 (CA), at pp 647-648; pp 445-446; R v
Powell; R v English [1999] AC 1; [1997] 4 All ER 545; [1997] 3 WLR 959 (HL).

Where the killer is guilty of manslaughter, a secondary party may also be guilty of manslaughter under s 66(1) if
he or she intentionally helped or encouraged the act that caused death with knowledge of circumstances making
it unlawful and dangerous, even though death was neither intended nor foreseen: R v Renata [1992] 2 NZLR
346; (1991) 7 CRNZ 616 (CA); see also R v Rapira [2003] 3 NZLR 794; (2003) 20 CRNZ 396 (CA). It must be
established, however, that the secondary party helped or encouraged the type of act which caused death. Thus,
unless the secondary party was aware for the purposes of s 66(2) that the death of the victim was a probable
consequence of prosecuting a common unlawful purpose, he or she will not be liable for manslaughter under s
66(1) where he or she was a party to punching or kicking the victim but the principal party committed an entirely
different act by stabbing the victim with a knife, of which the secondary party was unaware: R v Hartley [2007] 3
NZLR 299; (2007) 23 CRNZ 420 (CA). See also CA66.19(1)(a).

Even if the principal offender is guilty of murder, it appears that a secondary party will be guilty of manslaughter if
he or she intentionally helped or encouraged the dangerous unlawful act but was ignorant of the killer’s
murderous intent. See R v Malcolm [1951] NZLR 470 (CA), at p 485; Murray v R [1962] Tas SR 170; R v
Hartford (1979) 51 CCC (2d) 462 (BCCA); Kwaku Mensah v R [1946] AC 83, at p 91; Hui Chi-Ming v R [1991] 1
AC 34; 3 All ER 897; (1992) 94 Cr App 236 (PC), at p 41; R v Betty (1963) 48 Cr App R 6; R v Reid (1975) 62 Cr
App R 109; R v Murtagh [1955] Crim LR 315. Although the possibility of such different verdicts has usually
arisen in common purpose cases under s 66(2), in R v Leuluaialii 22/11/06, CA122/06, the Court of Appeal could
see no reason in principle why a verdict of manslaughter should not also be open to a secondary party in a s
66(1) case. See also R v Kopelani 23/11/05, CA79/05.
(2) Liability under s 66(2)

Where s 66(2) is relied on to inculpate another, it must first be established that the killing was done in the
prosecution of a common unlawful purpose to which the accused was a party. This will not include an act that
was a “complete departure” from the pursuit of the common purpose (for example, if the offender commits rape
or a grudge killing while engaged in an agreed robbery) or that was done when the jury finds that the common
purpose had come to an end. However, it will normally include acts contemplated by the parties before and
during the commission of an agreed offence, and in seeking to escape after it, even if the offender was furthering
some other purpose as well as the common purpose. See R v Te Moni [1998] 1 NZLR 641; (1997) 15 CRNZ 439
(CA).

In addition, to be a party to an offence under s 66(2) an accused must have known that the commission of “that
offence” was “a probable consequence of the prosecution of the common purpose”. That means that he or she
knew there was a substantial or real risk that the offence would be committed or that it could well happen: R v
Tomkins [1985] 2 NZLR 253; (1985) 1 CRNZ 627 (CA); CA66.25. Where the principal is guilty of murder under s
167, this will require the secondary party to have known that there was a real risk that the principal would kill
another with one of the states of mind specified in s 167: R v Hamilton [1985] 2 NZLR 245 (CA), at p 250-251;
Tomkins (above), at p 256, p 630; R v Tuhoro [1998] 3 NZLR 568; (1998) 15 CRNZ 568 (CA), at pp 576-578; pp
576-578.

However, where the killer is guilty of murder under s 168, there is no requirement that he or she intended or
foresaw a killing, and it is now established that the same principle applies to parties under s 66(2) (as well as
parties under s 66(1)). It was initially suggested that, in respect of culpable homicide, s 66(2) required knowledge
by a secondary party that there was a real risk of a killing, because otherwise such an offence would not be
known to be a probable consequence: R v Greening (1990) 6 CRNZ 191, at pp 194-195; G Orchard [1997] NZLJ
93. However, the Court of Appeal has rejected that view, holding that if the principal is guilty of murder under s
168, another may be a secondary party to the offence under s 66(2), even if the risk of killing was not foreseen,
provided the secondary party knew there was a real risk that the principal would act with a state of mind that
satisfied the requirements of s 168 (in particular, an intention to cause grievous bodily injury in order to facilitate
a listed offence such as robbery): R v Rapira [2003] 3 NZLR 794; (2003) 20 CRNZ 396 (CA); R v Tuhoro
(above); R v October 31/7/96, CA477/95; CA510/95; R v Hardiman [1995] 2 NZLR 650; (1995) 13 CRNZ 68
(CA); R v Morrison [1968] NZLR 156 (CA).

Whether the principal is guilty of murder or manslaughter, there are a number of circumstances in which another
party may be guilty of manslaughter under s 66(2). The Courts have identified cases in which manslaughter will
be the appropriate verdict when the accused has foreseen the risk of an unlawful killing: when the accused knew
there was a real risk of a killing “short of murder”; or if he or she foresaw a real risk of murder but it was
committed in circumstances “totally outside the accused’s contemplation”, or “at a time or in circumstances very
different from anything he ever contemplated: so different that the jury are not satisfied that the murder should
fairly be regarded as occurring in the carrying out of the plan”. See Tomkins (above), at p 256; p 630. See also
Greening (above), at p 195, where it was held to be manslaughter where the accused knew there was “an ever
present risk of a killing, albeit outside the scope of the original common intention” but as part of an “enterprise”
from which “he did not wholly disassociate himself”.

These are cases in which the accused was aware of a “real” risk of an unlawful killing. Reference has also been
made to a case where the accused foresaw the possibility of murder, but considered it to be such a remote
possibility that it was “never a real risk in the accused’s mind”, or was a risk he or she dismissed as “altogether
negligible”: Tomkins (above); Chan Wing-siu v R [1985] AC 168, at pp 178-179; see further G Orchard [1986]
NZLJ 45. Although the language of remoteness could suggest the absence of any liability, it was perhaps
intended that manslaughter should remain a possible verdict in such cases, although in Te Moni (above), at p
650; p 448, the Court of Appeal suggested that offences seen as only remote possibilities will not be part of the
“prosecution of the common purpose”.

Even if knowledge of the risk of a killing is not inferred, a secondary party may be convicted of manslaughter
(where the principal is guilty of murder or manslaughter) if he or she knew that the principal was armed with the
weapon that killed, but thought that it would be used only to frighten (Hamilton (above), at p 252) or to commit a
dangerous unlawful act that involved the risk of harm to another (R v Tuhoro 19/11/97, Panckhurst J, HC
Christchurch T87/97). Compare R v Davy (1993) 86 CCC (3d) 385 (SCC). For tactical reasons, in order to avoid
undue complexity, manslaughter directions confined to these possibilities may often be preferred.

(3) Exclusion of liability for murder and manslaughter

Where one party to a joint enterprise (or, in terms of s 66(2), a “common purpose”) commits culpable homicide in
furthering the enterprise, other parties will be guilty of neither murder nor manslaughter if they did not have any
of the degrees of knowledge outlined above. In addition, at common law it has been held that even if a party to a
joint enterprise did foresee a real risk that another might act with the intent required for murder, the former will be
guilty of neither murder nor manslaughter if the lethal act that eventuated was of a “fundamentally different” type
from any foreseen by the secondary party. This will be the case if, for example, the secondary party anticipated:

(a) An unarmed attack but the principal used a dangerous weapon (such as a gun or a knife);

(b) Only the use of one kind of weapon (such as a wooden post) but the principal used a more dangerous
weapon (such as a gun or a knife); or

(c) Only one kind of serious injury (such as kneecapping) but the principal deliberately killed the victim by
cutting his throat.

Where there is a difference between the type of act which was foreseen and that which was done, but the
difference might reasonably be regarded as not sufficient to take the act “outside the scope of the joint venture”
(as when a gun is used rather than a knife, or the victim is deliberately shot in the trunk rather than the knee), it
will be for the jury to say whether this test has been met, although the distinction may be fine. See R v Rahman
[2008] 3 WLR 264; [2008] UKHL 45 (HL); R v Powell; R v English [1999] AC 1; [1997] 4 All ER 545; [1997] 3
WLR 959 (HL), at pp 564-567, approving R v Anderson [1966] 2 QB 110; R v Rahman [2008] 3 WLR 264;
[2008] UKHL 45 (HL); R v Gamble [1989] NI 268; see also R v Perman [1996] 1 Cr App R 24 (CA); R v Mitchell
[1999] Crim LR 496 (CA); R v Crooks [1999] NI 226 (NI CA); R v Uddin [1999] QB 431; [1998] 2 All ER 744
(CA); R v Greatrex [1999] 1 Cr App R 126 (CA); R v Gilmour [2000] 2 Cr App R 407; [2000] Crim LR 763 (CA);
R v Roberts [2001] EWCA Crim 1594; R v Bentley [2001] 1 Cr App R 21; R v Mair [2002] EWCA Crim 2858; A-
G’s Reference (No 3 of 2004) [2005] 1 Cr App R (S) 52.

Difficulties in applying the principle have arisen in cases where the killer employed a weapon foreseen by the
accused but may have acted with an unforeseen murderous intent and a significantly greater degree of violence
than was foreseen. See, for example, R v Stewart [1995] 1 Cr App R 441; [1995] 3 All ER 159; compare R v
Dunbar [1988] Crim LR 693; compare commentaries by Sir John Smith at [1995] Crim LR 422-423; [1998] Crim
LR 49-53. See also Perman(above), where it was held that an accomplice in a robbery in which the victim had
been shot was not guilty of manslaughter where, although he had foreseen the use of a gun to frighten, he had
believed it to be unloaded.

These principles have been developed in cases which in New Zealand would probably be considered under s
66(2), but they will also apply where the secondary party aids or abets an attack by the principal, who kills by an
act of an entirely different kind from those the accomplice contemplated: see R v Hartley [2007] 3 NZLR 299;
(2007) 23 CRNZ 420 (CA); CA66.26(4) and CA167.23(1). See also Uddin (above), and Greatrex (above).

For discussion of the application of these principles in New Zealand see CA66.26.