Making a Threat to Kill

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Gabrielle RedmondThe article Making a Threat to Kill is written by Gabrielle Redmond, Lawyer, Doogue + George Defence Lawyers.

Gabrielle Redmond was admitted to Australian legal practice in 2019 and passed the New York bar exam in February 2020. She graduated with a Bachelor of Laws with Honours and Bachelor of Creative Industries majoring in Music from the Queensland University of Technology.

Prior to joining Doogue + George, Gabrielle worked as a legal assistant and, subsequently, a lawyer at Furstenberg Law where she assisted with criminal and confiscation matters. She also started her Master of Laws at the University of Melbourne in 2021.


Man Making a Threat to Kill Via EmailIt can come as a shock to learn that words you communicate in person, via text or online can constitute an indictable offence worthy of a maximum penalty of 10 years in prison. This charge is routinely laid when someone uses words that could be considered a threat to kill, such as:

  • texting or calling a partner telling them you’ll kill them;
  • telling someone that you’ll get a hitman to kill their mother;
  • emailing a co-worker that you intend to kill your boss;
  • writing a letter to your neighbour stating that unless they turn the music down, you’ll kill them; or
  • other words or conduct communicating a threat to kill via any other method of communication.

While these scenarios may be confronting at first, more often than not, the speaker does not intend to carry out the threat. The real test to make out this charge is whether the speaker either intended to put the complainant in fear that the threat will be carried out or was reckless as to whether their words and actions create fear in the mind of the complainant. It can become difficult to disprove one of these intentions when the police have a copy of the message sent.

In this article, I will discuss what the prosecution must prove for an accused person to be found guilty of making a threat to kill.

Legislation

Making a threat to kill is an offence under section 20 of the Crimes Act 1958 (VIC). The Act states that a person commits an offence if:

  • The accused made a threat to the complainant to kill either the complainant or another person;
  • The accused either:
    • intended the complainant to fear that the threat would be carried out; or
    • was reckless as to whether or not the complainant would fear that the threat would be carried out; and
  • The threat was made without lawful excuse.

As this is a serious offence under section 3 of the Sentencing Act 1991, a threat to kill charge is triable in the County Court but it can also be heard summarily by the Magistrates’ Court. In any case, we recommend getting legal representation as soon as possible to ensure you get the best results.

Proving a charge of threat to kill beyond reasonable doubt

1. Nature of the threat
To establish that a threat to kill has been made, the prosecution must prove that the accused threatened to kill a person.1 This threat can be made by words or conduct or both and can be established from continuously threatening and abusive conduct such as when the speaker wields a weapon or where there has been some form of violence predating the words used.2

Threats to cause serious injury or any lesser harm don’t constitute a threat to kill. This conduct may fall under a different offence of Threat to Inflict Serious Injury.

In threatening to kill a person, the accused can also be charged if they:

  • Threaten to kill a third party. The complainant doesn’t need to have a relationship with or even know the person threatened for this element to be satisfied;3 or
  • Make a threat to have a third party carry out the killing.4 For example, “If you don’t unload the dishwasher, I’ll have a hitman kill you”. In this example we also see that a threat can be conditional on the occurrence of a future event.5 It’s still a threat.

2. Intention
It is not relevant in determining the charge that accused says in hindsight they didn’t intend to carry out the threat. The real question is whether the accused intended for the victim to fear that the threat would be carried out.6

3. Recklessness
A finding of guilt can also occur where the accused was reckless as to whether the victim would fear that the threat would be carried out.

The accused must have been aware that it was probable or likely that the complainant would fear that the threat would be carried out.7 If the accused thought it was a mere possibility that the complainant would fear the execution of the threat, then a threat to kill won’t be made out.

When considering the alleged threat, the Court will take into account the relationship between the complainant and the accused. Where the parties tend to use violent or colourful language, the Court will consider whether the language in question could actually be construed as threatening.8

4. Threat made with lawful excuse
A threat to kill must have been made without any lawful justification or excuse. For example, if a threat was made in self-defence or to prevent a crime.9

Penalties

Sentencing for the charge of threat to kill will depend on the context of the charge and whether the matter is heard in the Magistrates’ courts or higher courts. Penalties can range from a fine to a community corrections order or a term of imprisonment. Proper defence is imperative to establish context surrounding the offending, therefore it is recommended that you contact an experienced criminal lawyer early on and get sound legal advice in order to achieve the best outcome possible.


[1] R v Leece (1995) 125 ACTR 1.
[2] R v Rich Vic CA 17/12/1997.
[3] R v Solanke [1970] 1 WLR 1; R v Syme (1911) 6 Cr App R 257.
[4] Barbaro v Quilty (1999) ACTC 119.
[5] R v Leece (1995) 125 ACTR 1.
[6] R v Alexander [2007] VSCA 178.
[7] R v Crabbe (1985) 156 CLR 464.
[8] Barbaro v Quilty (1999) ACTC 119.
[9] R v Cousins [1982] 1 QB 526.

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