(See the discussion of the relevance of motive as used in the first sense in R v Cummins [2004] VSCA 164; (2004) 10 VR 15 at [24] per Ormiston JA, with whom Warren CJ and Winneke P agreed.)
157 The High Court considered the relevance of motive in De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85. Justices Gaudron, McHugh and Hayne said the following (at [28]–[30]):
28 Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R v Ball
Evidence of motive necessarily goes to prove the fact of the homicide by the accused … inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.
So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, as observed by Menzies J in Plomp v R, "is commonly relied upon as a circumstance tending in favour of … a person accused of a crime."
29 Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.
30 The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of "positive significance", either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.
158 The applicant, proceeding on the basis that the respondents rely on the applicant's statement to Person 10 during pre-deployment training to the effect that "this is how it's going to be when we get there", submitted that this evidence is not evidence of motive on any view of it. At best, it is evidence of intention, not motive.
159 The respondents submitted that they do not have to prove motive. In addition, they relied on the distinction between the absence of proven motive and
