The direction below addresses the mens rea for murder where the Crown alleges that the accused intended to kill or inflict grievous bodily harm or was recklessly indifferent to human life. The direction should be adapted according to the issues in the specific case. Putting aside the positive judicial obligation to leave an alternative verdict(s) (see [ 5-1130 ] below), a judge should not give directions for a factual scenario or a form of liability not relied upon by the Crown: R v Robinson (2006) 162 A Crim R 88 at [157].

The Crown has to prove beyond reasonable doubt that, at the time [he/she] did the deliberate act which caused the death of [the deceased], [the accused] had an intention to kill the deceased, or an intention to inflict grievous bodily harm upon [him/her], or that the act which caused death was done with reckless indifference to human life. This is the second element of the basic ingredients of murder. It is often referred to as the mental element of the offence of murder which the Crown has to prove beyond reasonable doubt.

These three states of mind are separate and distinct. The Crown needs to prove beyond reasonable doubt that [the accused] had any one of them at the time [he/she] did the act causing death. In relation to the mental element of the crime of murder, what the Crown has to prove is the state of mind of the accused at the point of time of the act causing death.

[If there is an issue about the act causing death the various alternatives should be addressed.]

Of course, you can infer or conclude what a person’s state of mind is at any particular point from a consideration of the person’s state of mind leading up to that particular time and sometimes afterwards. You do not take the particular point of time out of the context in which it occurred. You look at it as part of a series of events that took place, both before and after the act causing the death of the deceased occurred.

Intention

I will explain the first two states of mind — an intention to kill or inflict grievous bodily harm — together since they are related.

For the offence of murder, the Crown has to prove beyond reasonable doubt that, at the time [he/she] committed the deliberate act that caused the deceased’s death, [the accused] did that act with either an intention to kill or an intention to inflict grievous bodily harm upon [the deceased]. Grievous bodily harm is simply bodily injury of a really serious kind. This type of injury does not have to be permanent or even life threatening. You decide what sort of injury would be described as being really serious because that is an issue of fact for you.

Intent and intention are very familiar words. In the legal context in which we are considering them, they carry their ordinary everyday meaning. A person’s intention may be inferred or concluded from the circumstances in which the death occurred and from the conduct of the accused person before, at the time of, or after he or she did the specific act which caused the death of the deceased. In some cases, a person’s acts may provide the most convincing evidence of his or her intention at the time. Where a specific result is the obvious and inevitable consequence of a person’s act, and where the person deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving that particular result.

In this case …

[Outline the Crown’s argument concerning the evidence of the accused’s intention and any counter arguments by the defence.]

So the first two states of mind which are necessary for the crime of murder are either, that [the accused] had an intention to kill [the deceased], or an intention to inflict really serious bodily injury upon [him/her].

Reckless indifference

The third state of mind, which the Crown relies upon to prove murder, is known in legal terms as reckless indifference to human life. If, at the time [the accused] committed the act that caused the death of [the deceased], [he/she] foresaw or realised that this act would probably cause the death of [the deceased] but [the accused] continued to commit that act regardless of that consequence, then [the accused] would be guilty of murder.

What is at the nub of this mental state is that [the accused] must foresee that death was a probable consequence, or the likely result, of what [he/she] was doing. If [the accused] did come to that realisation, but decided to go on and commit the act regardless of the likelihood of death resulting, and if death does in fact result, then [the accused] is guilty of murder. The conduct of a person who does an act that the person knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, to be just as blameworthy as a person who commits an act with a specific intention to cause death.

For this basis of murder, [the accused’s] actual awareness of the likelihood of death occurring must be proved beyond reasonable doubt. It is not enough that [he/she] believed only that really serious bodily harm might result from [his/her] conduct or that [the accused] merely thought that there was the possibility of death. Nothing less than a full realisation on the part of [the accused] that death was a probable consequence or the likely result of [his/her] conduct is sufficient to establish murder in this way.

Again, you are concerned with the state of mind that [the accused] had at the time [he/she] committed the act causing death. What you are concerned about when considering the mental element of the offence of murder is the actual state of mind of [the accused], that is, what [he/she] contemplated or intended when [the act causing death] was committed.