Criminal Law

Intention and criminal law: How does the law determine the motive of an offender?

Published in: November 2016

One of important elements in relation to criminal law is that of intent. But what is actually meant by the term? Trying to establish what a person’s intention is hard enough, but when talking about criminal law, it can be especially challenging. However, intent is an essential component in to criminal law matters and it’s worth trying to understand how intent is determined within a criminal law context. 

The statutory definition of intent

A number of legislative instruments refer to intention in the performing of a criminal act, and we can turn to s 23 of Queensland’s Criminal Code Act 1899 for our statutory example. The section states the following:

23 Intention—motive

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(a) an act or omission that occurs independently of the exercise of the person's will; or

(b) an event that—

(i) the person does not intend or foresee as a possible consequence; and

(ii) an ordinary person would not reasonably foresee as a possible consequence.

(1A) However, under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

We should add that the courts have generally been reluctant to make a presumption of intention and that if intent is an issue, “it is of paramount importance that the jury be directed as to the obligation of the prosecution to establish intent beyond reasonable doubt”, as was noted in the joint judgment in R v AJS (2005) 12 VR 563; 159 A Crim R 327 (CA).

Inference of intent lies in fact, rather than law

Mason CJ, Deane and Dawson JJ in Kural v The Queen (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12, said the following regarding mens rea in a drug importation matter:

“What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transferring matters of fact into proposition of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.”

A person holding an honest belief may signify lack of intent 

Dawson J in He Kaw Teh v The Queen (1985) 157 CLR 523; 60 ALR 449; 15 A Crim R 203, said that because intent forms part of a crime in common law, it is up to the prosecution to prove that a “mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds. Either the accused has a guilty mind or he does not, and if an honest belief, whether reasonable or not, points to the absence of the required intent, then the prosecution fails to prove its case.”

In offences where specific intent is relevant and admissible, then it becomes personal to an accused, and in Schultz v The Queen [1982] WAR 171; (1981) 5 A Crim R 234 (CCA), Burt CJ said the following:

“[I]n my opinion the evidence was relevant and, when led by the appellant, admissible. Once it be acknowledged that there is no legal presumption that a man intends the probable consequences of his acts and that in every case the finding to be made is specifically and exclusively as to the intention of a particular person at a particular moment of time, then, as it seems to me, all facts personal to the person concerned which have bearing or which in the judgment of reasonable men may have bearing upon the operation of his mind are relevant to that finding.”

There is no direction on what is meant by intent

It may be hard to fathom that generally speaking, judges should not direct a jury on what is meant by intent. In R v Moloney [1985] AC 905; [1985] 1 AII ER 1025; 81 Cr App R 93 (HL), Lord Bridge said the following, and with agreement from the other Lords:

“The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.”

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