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Adams on Criminal Law

Crimes Act 1961

171 Manslaughter

Except as provided in section 178 of this Act, culpable homicide not amounting to murder is manslaughter.
Compare: 1908 No 32 s 186

Commentary - Adams on Criminal Law

Cross references

s 160 culpable homicide

s 178 infanticide

CA171.01 General

For the punishment see s 177. This section must be read along with ss 158-170. “Homicide”, “culpable
homicide”, and “murder” are defined by ss 158, 160, 167, and 168. By virtue of s 160(3), and of this section,
unless the offence is infanticide within s 178, manslaughter includes all cases of culpable homicide not falling
within s 167 or s 168, and it also includes every killing which would be murder except for the fact that it is
reduced to manslaughter by reason of provocation (s 169) or because it is committed pursuant to a suicide pact
(s 180). As to what constitutes culpable homicide, and therefore manslaughter: see s 160 and the commentary
thereto. At common law manslaughter is sometimes said to be either “voluntary” manslaughter (that is, killing as
a result of provocation, diminished responsibility, or a suicide pact) or “involuntary” or “constructive”
manslaughter (that is, killing by an unlawful act or by gross negligence). These terms have no significance under
our Act, and in New Zealand diminished responsibility does not reduce murder to manslaughter: R v Burr [1969]
NZLR 736 (CA).

CA171.02 Parties to manslaughter

An accused may be guilty of manslaughter either as a principal offender or as a secondary party under either s
66(1) or s 66(2): see s 66 and commentary.

CA171.03 Attempt

It has been said that attempted manslaughter, and conspiracy to commit manslaughter, “are clearly offences
unknown to the law”: R v Creamer [1966] 1 QB 72, at p 81. Presumably the explanation is that for such an
attempt there would have to be an intent to kill, and the offence would therefore be attempted murder: see
CA173.04. However, if the accused was acting under provocation or a suicide pact, the intent would be to
commit manslaughter rather than murder, which, moreover, could be legally impossible. Logically this suggests
that in such a case the offence is attempted manslaughter. Such a conclusion was accepted in R v Duvivier
(1981) 5 A Crim R 89, at p 107 per Zelling J, but has not been accepted in England: R v Bruzas [1972] Crim LR
367; R v Campbell [1997] Crim LR 495. It has been rejected as “attractive” but “unsound” in Ontario: R v
Campbell (1977) 38 CCC (2d) 6; 1 CR (3d) 309 (Ont CA). See also R v Smith [1964] NZLR 834; R v Laga
[1969] NZLR 417. See further CA169.01A. Even when the accused did not intend to kill, injuring in such
circumstances that it would have been manslaughter if death had resulted is an offence under s 190. Various
other cases of non-fatal wounding, injuring, or assault are covered by various other sections in the Act, in
particular ss 188-200, and unlawfully and knowingly endangering another may be the offence of criminal
nuisance, without the need for an assault or injury: s 145.

CA171.04 Self-manslaughter

There is no such offence as self-manslaughter: R v Dias [2002] 2 Cr App R 5 (CA).

CA171.05 Negligence

As to the degree of negligence required to establish liability for manslaughter, see commentary to ss 150A and
160. Other statutes make separate provision for causing death or injury by careless use of a motor vehicle or
firearm, but liability for manslaughter is preserved: ss 36, 38, 39, and 137(2) Land Transport Act 1998; s 53(4)
Arms Act 1983. For the possibility of convictions for both manslaughter and such an offence when intoxication
was a contributory factor, see R v Clarke [1982] 1 NZLR 654 (CA).

CA171.06 Onus of proof

See CA20.09-37. Generally the onus of proving that a homicide is murder and not merely manslaughter rests on
the prosecution: R v Kahu [1947] NZLR 368 (CA); and provocation should be considered only if there is
evidence making it a live issue: CA169.01A, 30. The accused has the persuasive burden of proving a killing
under a suicide pact: s 180(4).

CA171.07 Manslaughter of person believed to be dead

If at the time of doing the act which causes death the accused believes the victim is already dead, the intent
needed for assault will be absent, which will exclude the possibility of manslaughter by the unlawful act of
assault: R v G (1984) 1 CRNZ 275. In appropriate cases, however, such an accused might be guilty of
manslaughter, either as a result of negligent omission to perform or observe a legal duty, in particular under s
155 or s 156, or as a result of the “one transaction” principle discussed in CA167.13(3), 14: R v Church [1966] 1
QB 59, at pp 68-71. See also R v Lee [2006] 3 NZLR 42; (2006) 22 CRNZ 568 (CA), discussed at CA160.09.

CA171.08 Consent to infliction or risk of injury

See commentary at CA160.09, 15.

CA171.09 Joinder of other charges

In England it was formerly the practice that other counts should not be included in an indictment with
manslaughter: R v Large (1939) 27 Cr App R 65; [1939] 1 All ER 753 (CA); R v Smith [1958] 1 WLR 12, but this
was abandoned after criticism in Connelly v DPP [1964] AC 1254; 2 All ER 401 (HL). In New Zealand there are
no special rules restricting the joinder of other counts.

CA171.10 Alternative verdicts

See s 178(2) and (3) as to infanticide. An alternative verdict is also possible under s 339(1) if the count for
manslaughter is so drawn as to allege the commission of some other offence: R v King (1901) 19 NZLR 409, at
p 413.

CA171.11 Manslaughter directions on indictments for murder

On a charge of murder “if the evidence proves manslaughter, but does not prove murder”, the jury may acquit of
murder and convict of manslaughter: s 339(2). See CA171.15.

When an indictment charges murder and there is no evidence on which a verdict of manslaughter can properly
be found the trial Judge need not leave the issue of manslaughter to the jury, and is entitled to direct that it
cannot with propriety find a verdict of manslaughter if satisfied that the crime was murder. As the prosecution
has the onus of proving murderous mens rea beyond reasonable doubt, this will be an unusual case, but when
such a case arises it may be that such a direction should be given: R v Malcolm [1951] NZLR 470 (CA), at pp
485-486, citing R v Thorpe (1925) 18 Cr App R 189, at p 191; Mancini v DPP [1942] AC 1; [1941] 3 All ER 272
(HL), at p 12; p 279; R v Black [1956] NZLR 204 (CA), at p 210; Clark v R [1971] NZLR 589 (CA); Gammage v
R (1969) 122 CLR 444. See also CA171.15-18. However, where there is evidence (adduced by any party), or “a
credible or plausible narrative” in the evidence, which is reasonably capable of leaving a jury in reasonable doubt
as to whether the crime was manslaughter only, that possibility should be left to the jury with appropriate
directions on relevant matters of fact and law. This principle applies when on the evidence the killing might have
been manslaughter on the ground of provocation, or for some other reason, and even though such matters were
not raised, even if they were expressly disavowed on behalf of the accused: Mancini (above), at pp 7-8; p 276;
Kwaku Mensah v R [1946] AC 83, at pp 91-92; Bullard v R [1957] AC 635, at p 644; DPP v Daley [1980] AC
237; [1979] 2 WLR 239 (PC), at pp 243-244; R v Morrison [1968] NZLR 156 (CA), at pp 160-161; R v Nepia
[1983] NZLR 754 (CA); R v Sarah (1990) 5 CRNZ 663 (CA); R v Hamilton [1985] 2 NZLR 245 (CA); R v Tavete
[1988] 1 NZLR 428; (1987) 2 CRNZ 579 (CA), at p 431; p 582. Similarly, if one view of the evidence would
support acquittal, that possibility should be put to the jury even if, for tactical reasons, counsel may not have
relied on it: R v Williamson [No 2] (1996) 67 SASR 428; (1996) 92 A Crim R 24 (SA SC).

This will sometimes require the Judge to draw to the jury’s attention, at least in general terms, possible
inferences from the evidence which might not have been suggested by the parties, but it does not require or
justify the Judge introducing factual hypotheses which were not raised at trial and which are speculative in that
they are not supported by the evidence or by what is to be naturally inferred therefrom: R v Roulston [1976] 2
NZLR 644 (CA), at pp 651-653; R v Beazley [1987] 2 NZLR 760 (CA), at pp 763-764; R v Dwight [1990] 1 NZLR
160; (1989) 6 CRNZ 162 (CA), at p 166; p 168; R v Ji 15/12/04, CA381/03; R v Longley [1962] VR 137, at p 140.
In very exceptional cases it may be open to the Court of Appeal to hold that manslaughter did not have to be left
on the basis that the circumstances compelled the inference of murderous intent, notwithstanding that it was not
admitted: Black (above), at p 210; compare R v Wickliffe [1987] 1 NZLR 55; (1986) 2 CRNZ 310 (CA), at pp 60-
62; pp 314-316.

In R v Coutts [2007] 1 Cr App R 6; [2006] 1 WLR 2154 (HL), the House of Lords held that where murder is
charged but both the prosecution and defence disavow an alternative verdict of manslaughter, treating the case
as murder or nothing, it is ultimately the responsibility of the trial Judge, irrespective of the wishes of counsel, to
leave the alternative verdict to the jury if there is evidence to support it.

CA171.12 Consequence of failure to leave manslaughter

Where the evidence supports the possibility of manslaughter by reason of provocation the defence may succeed
notwithstanding that all the ingredients of murder have been established. If it has not been properly left to the
jury there is no doubt that this will justify quashing a conviction for murder, and either a new trial or a substitution
of a conviction for manslaughter as may be appropriate: see Kwaku Mensah v R [1946] AC 83, and other
authorities cited in CA171.11; and compare s 178 (infanticide), and s 180 (suicide pacts). However, Adams was
of the view that even when manslaughter was open on the evidence, a failure to properly direct on it should not
always jeopardise a conviction for murder, and in particular should not do so if the jury was properly directed as
to what was required for such a verdict, and on the evidence relevant to that, and the only basis on which
manslaughter could be found on the evidence was possible absence of the intent needed for murder: see
F B Adams (ed), Criminal Law and Practice in New Zealand (2nd ed), Wellington, Sweet & Maxwell, 1971, paras
1310-1312. On that view the verdict of murder logically negates the possibility of manslaughter and should not
be disturbed merely because the possibility of the lesser crime was open on the evidence. While that approach
was adopted in some Australian cases, it has since been rejected: Gilbert v R (2000) 201 CLR 414 (HCA);
Gillard v R (2003) 219 CLR 1 (HCA); see also R v Coutts [2007] 1 Cr App R 6; [2006] 1 WLR 2154 (HL),
referred to at CA171.11.

CA171.13 Inconsistent decisions

Adams was particularly critical of two decisions which are inconsistent with the approach outlined in CA171.12:
R v Roberts [1942] 1 All ER 187 and R v Stuck [1949] NZLR 108 (CA); see F B Adams (ed), Criminal Law and
Practice in New Zealand (2nd ed), Wellington, Sweet & Maxwell, 1971, para 1312. In both cases the accused
had shot the victim and the jury convicted of murder after being correctly directed as to what must be proved for
that, and to acquit altogether if the shooting might have been accidental. In Roberts the jury had also been told
that manslaughter was not open on the evidence, and in Stuck the only mention of manslaughter appeared to
relate to provocation, which was not supported by the evidence. In each case, however, it was found that the
evidence supported the possibility of manslaughter on the basis that the accused had unintentionally shot the
victim as a result of negligently handling the gun, and as the jury had not been directed as to this the conviction
for murder was set aside. It is clear that in Stuck (at p 115) the Court was conscious that it was of some
significance that it was not a case where the possibility of manslaughter depended on provocation: see also R v
O’Halloran [1967] Qd R 1; R v Roche [1950] 1 DLR 414. These authorities will not, of course, apply if on the
evidence it is found that there was no room for a verdict of manslaughter, or if the factual hypothesis which might
support a particular form of manslaughter is not supported by the evidence: R v Black [1956] NZLR 204 (CA), at
p 210; R v Roulston [1976] 2 NZLR 644 (CA), at pp 651-653; R v Beazley [1987] 2 NZLR 760 (CA), at p 763;

CA171.14 Principle affirmed

Although the Court of Appeal does not appear to have needed to critically review R v Stuck [1949] NZLR 108
(CA), it was not doubted in R v Roulston [1976] 2 NZLR 644 (CA), at pp 651-653, and the principle was affirmed
by a dictum in R v Tavete [1988] 1 NZLR 428; (1987) 2 CRNZ 579 (CA), at p 431; p 582. The principle seems to
be implicitly affirmed in R v Hamilton [1985] 2 NZLR 245 (CA), at pp 251-252, where an accused convicted of
murder as a secondary party obtained a retrial because the possibility of his being guilty of manslaughter, on the
basis inter alia that he had not foreseen a shooting, had not been left. In cases such as Stuck (above) and
Hamilton (above) it may be that logically the verdict negates manslaughter, but they perhaps reflect a realistic
view of the likely reasoning processes of jurors, who may well be reluctant to acquit altogether and whose
conclusions on matters of fact may well be influenced by the choice of verdicts, and factual hypotheses,
presented to them. See also R v Marino 8/11/95, CA327/95. This was the approach of a majority of the High
Court of Australia in Gilbert v The Queen (2000) 201 CLR 414; 170 ALR 88 (HCA); see also Gillard v R (2003)
219 CLR 1 (HCA).

CA171.15 Manslaughter as alternative in cases of “murder or nothing”

The general question of putting the issue of manslaughter to the jury has been dealt with in CA171.11-14. In the
unusual case where the only reasonable view of the evidence is that the killing was either murder or not culpable
it is right for the Judge not to leave the issue of manslaughter to the jury: CA171.11. However, two questions
remain: is the jury competent to return a verdict of manslaughter in such a case, and how should it be directed if
the question is raised?

CA171.16 English law

These questions have not been authoritatively resolved in England, although there is at least one recorded
instance in which a Judge felt obliged to accept a verdict of manslaughter notwithstanding that the jury had been
directed that it was not open to it: (1942) 86 Sol J 251; compare Clement v Blunt (1623) 2 Rolle 460; R v
Greenwood (1857) 7 Cox CC 404. In R v Soanes [1948] 1 All ER 289, at p 290, the jury acquitted of murder and
found infanticide although there was nothing in the evidence to support this, and Lord Goddard CJ said that the
jury had acted “in the exercise of their undoubted prerogative”. See also R v Shipley (1784) 4 Doug KB 73, at p
178 for the “power” but not the “right” of a jury to find a verdict “against evidence”.

CA171.17 Australia

In Australia it is established that when an unlawful killing is proved against the accused the jury may find
manslaughter rather than murder even though there is no evidence to support such a verdict, and, although the
Judge is entitled to ask it to reconsider, the verdict must be accepted if the jury persist with it. However, although
it follows that it is wrong to instruct the jury that it has no such power, when the evidence does not support the
possibility of manslaughter the Judge is not required to explain that it is entitled to so find, unless the jury
inquires about this, and if the issue is raised (by counsel or the jury) the Judge may, and probably should,
instruct the jury that it cannot properly find manslaughter, and would be failing in its duty if it did when it was in
fact satisfied that the crime was murder: Gammage v R (1969) 122 CLR 444; R v Boney (1986) 24 A Crim R 37,
at pp 44-45; R v Tajber (1986) 72 ALR 229; R v Schneidas (No 2) [1981] 2 NSWLR 312. Important cases before
Gammage include Brown v R (1913) 17 CLR 570; Packett v R (1937) 58 CLR 190, at p 213; and Beavan v R
(1954) 92 CLR 660. In R v Watson [1906] SASR 187, it was held that such a verdict was beyond the
competence of the jury, but this view has not prevailed.

CA171.18 Directions on alternative findings

In R v Malcolm [1951] NZLR 470 (CA), the jury found murder after being directed that it could not find one party
guilty of murder and the other of manslaughter and, there being on the evidence no room for such a
differentiation, the Court of Appeal held that there had been no misdirection. The Court also concluded that the
authorities showed that at common law a jury should not be directed that it has power to return a verdict of
manslaughter when the evidence proved murder or nothing, and also that in such a case “the presiding Judge is
entitled to tell the jury that it cannot find a verdict of manslaughter”: Malcolm (above), p 485; compare the
possibly ambiguous remarks in R v Roberts [1942] 1 All ER 187, at p 192. Subsequently, the Court affirmed that
a direction was not defective if manslaughter was not dealt with, or adequately dealt with, when the evidence
proved murder or nothing: R v Black [1956] NZLR 204 (CA), at p 210. However, it may be doubted whether it is
correct to direct that such a verdict is one the jury cannot return. In R v Morrison [1968] NZLR 156 (CA), at p
161, the jury had been told that such a finding was “a privilege and a matter for you”, and the Court found it
unnecessary to decide whether the remarks in Malcolm (above) required review. In Clark v R [1971] NZLR 589
(CA), at p 590, the Court purported to endorse the law “as expressed” in Malcolm, but described this as being
that “the presiding Judge is entitled to tell the jury that they cannot with propriety find a verdict of manslaughter”,
if satisfied that the crime was murder. The interpolation of “with propriety” changes the apparent meaning of the
statement in Malcolm (above), and suggests that the law in New Zealand is the same as in Australia: see
CA171.17. If, however, a jury is told that a verdict of manslaughter is beyond its power, and on the evidence no
reasonable jury could (with propriety) return such a verdict, it is submitted that a conviction for murder may be
upheld by application of the proviso to s 385(1), although in the absence of misdirection a perverse finding of
manslaughter rather than murder will be beyond challenge. For an example of doubt of the existence of the
“constitutional right” of a jury in a murder trial to return a verdict of manslaughter, see R v Keogan 29/9/93,
CA266/93. It is unusual for there to be nothing supporting a verdict of manslaughter, but where this is the case it
is right for the Judge not to put such a possibility to the jury: R v Garmonsway 14/11/94, CA141/94.