This [malice aforethought] is the grand criterion, which now distinguishes murder from other killing: and this malice prepense, malitia praecogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart: un disposition a faire un male chose [an inclination to do an evil thing]: and it may be either express or implied in law".
In the 12th century, any death by misadventure without a "presentment of Englishry" was sufficient for a jury finding of murder, even in cases where there was no suspect and the victim's identity is unknown.
A 1403 jury instruction recorded in a 16th-century manuscript written by Edward Stillingfleet reads: "Also you will inquire about all sorts of homicides both of those who lie in wait through malice aforethought [par malice devant pourpense] in the peace of homes and other places [and who] murder people and of those who slay men through a hot-blooded mêlée [chaude melle]".
The Anglo-Saxon legal concept of forsteal included lying in wait and ambush, but it remains unclear whether or not premeditation or intent were requirements for murder during this early period.
[6] Malice aforethought emerges as an ill-defined concept from the writings of Blackstone, Joseph Chitty and their predecessors, Matthew Hale and Edward Coke.
[3] By the time the Statute of Stabbing was passed in 1604, judges had started to consider whether provocation was sufficient in "heat of the blood" cases.
During the 17th century, this was more clearly articulated in subsequent cases and gradually developed into the common law categorical test for provocation.
Furthermore, he held that for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention.
[22] Most Australian jurisdictions require some degree of actual awareness of the resulting consequences of the accused's own actions to justify a murder conviction.
The High Court of Australia affirmed that there is a spectrum of mens rea ranging from intention to kill to reckless indifference that would be relevant in securing a murder conviction.