Motive: Does it Matter Why the Victim was Murdered?

“What was the motive?” is asked in virtually all crime shows. There’s a body, the death looks suspicious, and the detectives search for why the person was murdered. But is the prosecution in NSW actually required to prove the accused had a motive to murder the victim? In a word: no.

Under s 18(1)(a) of the Crimes Act 1900 (NSW), a murder has been committed when the accused has caused the death of another person and the act or omission causing death involved:

• reckless indifference to human life; or
• an intent to kill; or
• an intent to inflict grievous bodily harm; or
• the commission a crime punishable by imprisonment for 25 years or life imprisonment.

The prosecution is required to prove a certain mental state existed, but this does not necessarily exist to proving a motive. In other words, the court does not need to know why the victim was murdered.

Reckless Indifference

For a homicide to be committed with reckless indifference to human life, the accused needs to have foreseen that it was probable – not just possible – that death would result from their act or omission (Crabbe v R (1985) 156 CLR 464; Royall v R (1991) 172 CLR 378). This is a subjective test, meaning that it is necessary that the accused, and not merely an ordinary or reasonable person, foresaw that death was probable (Pemble v R (1971) 124 CLR 107).

So, while the state of mind of the accused needs to be proven, no motive is needed to establish murder by reckless indifference to human life.

Intent to Kill or Cause Grievous Bodily Harm

When the prosecution attempts to prove the accused had an intention to kill or cause grievous bodily harm, it is sufficient to prove the accused had an intention to kill or severely harm any person, even if that person is not the victim (R v Supple (1870) 1 VR 151; Royall v R (1991) 172 CLR 378). Even if the accused intended to kill or harm Person A, but actually killed Person B, they will still have the requisite mental state.

In terms of “grievous bodily harm”, it also does not matter if the accused intended to cause grievous bodily harm in one way (such as chopping off their leg) but the harm causing death ultimately occurred in another way (for example, by a punch to the face) (Royall v R (1991) 172 CLR 378).

Once again, the prosecution does not need to prove why the accused intended to kill or severely harm the victim, and therefore no motive is required.

The Commission of Another Offence.

“Constructive murder” can be proven if the homicide occurs during or immediately after the commission, or the attempted commission, of an offence punishable by life imprisonment, or by 25 years imprisonment. Under s 18(1)(a), this other offence may be committed by the accused or by the accused’s accomplice.

No motive is required to prove this offence. Instead, the prosecution only needs to prove that the accused:

1. caused the death through their actions or omissions; and
2. intended to commit an offence punishable by 25 years or life imprisonment (Mraz v R (No 2) (1956) 96 CLR 62).

It also does not need to be proven that the death was foreseeable, or that the other serious offence caused the death of the victim (R v Van Beelen (1973) 4 SASR 353).

But, in Reality

Even though motive is not specifically required by s 18(1)(a), the prosecution will ordinarily raise and attempt to prove that the accused had motive to murder the deceased, especially if there is a jury. It may be difficult to prove an intention to kill or cause grievous bodily harm, or reckless indifference to human life, without proving motive. A jury is unlikely to be convinced that the accused had an intention to kill the deceased – or simply did not care about his or her life – for no apparent reason.

After all, they’ve all been watching crime shows, and they’re going to want to know “what was the motive?”

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LexisNexis Australia, Criminal Practice and Procedure New South Wales, (at Service 154) [8 - s 18] (in print).

Judicial Commission of New South Wales, Sentencing Bench Book (November 2016).