Adams on Criminal Law

Crimes Act 1961

168 Further definition of murder

(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not
mean death to ensue, or knows or does not know that death is likely to ensue:

(a) If he means to cause grievous bodily injury for the purpose of facilitating the commission of any of
the offences mentioned in subsection (2) of this section, or facilitating the flight or avoiding the
detection of the offender upon the commission or attempted commission thereof, or for the purpose
of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such
injury:

(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death
ensues from the effects thereof:

(c) If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and
death ensues from such stopping of breath.

(2) The offences referred to in subsection (1) of this section are those specified in the following provisions of
this Act, namely:

(a) Section 73 (treason) or section 78 (communicating secrets):

(b) Section 79 (sabotage):

(c) Section 92 (piracy):

(d) Section 93 (piratical acts):

(e) Section 119 to 122 (escape or rescue from [prison] or lawful custody or detention):

[(f) section 128 (sexual violation):]

(g) Section 167 (murder):

(h) Section 208 (abduction):

(i) Section 209 (kidnapping):

[(j) section 231 (burglary):]

[(k) section 234 (robbery):]

[(l) section 267 (arson)]

Compare: 1908 No 32 s 183

History Note - Statutes of New Zealand

Subsection (2)(e) was amended, as from 1 June 2005, by s 206 Corrections Act 2004 (2004 No 50) by
substituting the word “prison” for the words “penal institution”. See cl 2 Corrections Act Commencement Order
2005 (SR 2005/52).

Subsection (2)(f) was amended, as from 1 February 1986, pursuant to s 2 Crimes Amendment Act (No 3) 1985
(1985 No 160) by substituting the words “sexual violation” for the word “rape”.
Subsection (2)(f) was substituted, as from 1 October 2003, by s 7(1) Crimes Amendment Act 2003 (2003 No 39).

Subsection (2)(j) to (2)(l) was substituted, as from 1 October 2003, by s 7(2) Crimes Amendment Act 2003 (2003
No 39).

Commentary - Adams on Criminal Law

Cross references

s 167 murder defined

CA168.01 Scope of s 168

Sections 168 and 167(d) derive from the common law felony murder rule, although at common law it sufficed if
there was a killing in furtherance of any felony involving violence, and an intent to cause grievous bodily injury
was not required: see CA167.02. The fundamental distinction between s 168 and s 167 is that under s 168 the
offender need not mean to kill or know that death was likely to ensue. To that extent “constructive malice”
suffices under s 168, although the practical effect of this extension of liability is somewhat restricted because of
the requirement in subs (1)(a) that the offender “means to cause grievous bodily injury”: compare R v Hamilton
[1985] 2 NZLR 245 (CA), at pp 250-251. “Grievous bodily injury” is no doubt synonymous with “grievous bodily
harm”, so that it means really serious bodily harm: CA2.16.01. Where the actual killer is guilty of murder under s
168, a secondary party may also be guilty of murder under either subs (1) or subs (2) of s 66 even if he or she
may not have known that a killing was a real risk: R v Rapira [2003] 3 NZLR 794; (2003) 20 CRNZ 396 (CA); R v
Tuhoro [1998] 3 NZLR 568; (1998) 15 CRNZ 568 (CA); see CA167.23.

CA168.02 Accidental victim

Under s 167(c) there may be murder where the act was not aimed at the person killed, but there is no express
provision on this point in s 168. However, there seems to be nothing to the contrary in the wording of the section
and, consistently with the common law, it seems likely that it will be interpreted to extend to such a case:
CA167.07. In R v Rowe [1951] 4 DLR 238 (SCC), the accused was convicted under a similar provision, although
the shot, presumably intended for a fleeing taxi driver, killed another person whom the accused did not know
was present.

CA168.03 Intention of offender

For a case to be within s 168 the offender must have acted for a particular ulterior purpose. When the purpose is
to resist lawful apprehension it may be in respect of “any offence whatsoever”, but in all other cases it must
relate to one of the crimes specified in subs (2).

Under subs (1) the offender must mean to cause grievous bodily injury or do one of the specified acts for one of
the specified purposes. Thus a killing as a result of the accidental discharge of a firearm during a robbery is not
murder under s 168, though it may be so under s 167(d): R v Wickliffe [1987] 1 NZLR 55; (1986) 2 CRNZ 310
(CA).

“Flight” in s 168(1)(a) does not require pursuit, and “upon” in the phrase “upon the commission” means “after”
and not “immediately after”: R v Rowe [1951] 4 DLR 238 (SCC).

CA168.04 Specified offences

Under s 7(1) Crimes Amendment Act 2003, the previous reference in para (f) to “section 128 (rape)” was
replaced by “section 128 (sexual violation)”. Prior to the amendment, the reference to rape alone was anomalous
in view of s 2 Crimes Amendment Act (No 3) 1985 which substituted a new s 128 providing for the generic crime
of sexual violation, of which rape is one form. The substitution of “sexual violation” removes any doubt that s
168(1) applies not just to rape but to other forms of unlawful sexual connection.

By s 7(2) Crimes Amendment Act 2003, paras (j), (k) and (l) of s 168(2) were amended to correspond with the
redesignation of burglary, robbery and arson in ss 231, 234 and 267.

The specified offences in subs (2) include robbery under s 234 but not aggravated robbery under s 235.
Nonetheless, in R v Rapira [2003] 3 NZLR 794; (2003) 20 CRNZ 396 (CA), it was held that there is no basis in
logic or statutory policy for excluding reliance on s 168(1)(a) where the offence facilitated is aggravated robbery.
The Court concluded that specific reference to aggravated robbery in subs (2) is unnecessary because that
offence includes the qualifying offence of robbery. In addition, the legislature could not have intended that an
accused could be guilty of murder under s 168(1)(a) where the offence facilitated was the lesser offence of
robbery but not guilty of murder under the same provision if the offence facilitated were robbery with aggravating
features. See also R v Kelly 18/7/94, Smellie J, HC Auckland T65/94.