Call (03) 9670 5111

Setting Traps to Kill

– section 25 of the Crimes Act 1958
Woman Hidden Watching SomeoneSetting traps to kill is an unusual offence that is rarely heard before the courts. It will likely result in a prison term if an accused is found guilty.

Examples of Setting Traps to Kill
  • A person sets up a car bomb on a car. The bomb is rigged to detonate when the car’s engine is started.
  • A person creates a pitfall trap that a person would be unable to climb out of if they fell in. The pitfall trap is not monitored and if a person were to fall into the trap they would likely die from injuries sustained in the fall, dehydration or malnutrition.
  • A person sets up a bear trap in a national park they know bushwalkers frequent. If someone was to trip the bear trap it would seriously injure them and they could easily die from their injuries.
Questions in cases like this
  • Did the accused set a trap?
  • Did the accused set the trap with the intention of killing another person?
  • Was the accused reckless as to whether another person would be killed by the trap?
What are some of the possible defences to Setting Traps to Kill?

Defences to this charge ordinarily turn on some element of the offence not being made out. These defences include:

  • The accused did not set a trap;
  • The accused did not set the trap with the intention of killing another person;
  • The accused was not reckless as to whether another person would be killed when setting the trap.

Other defences to this charge include duress and, in limited circumstances, sudden and extraordinary emergency.1

It is not a defence to this charge for the offence to have occurred on the accused’s private property and for the victim to be trespassing.2

Deciding on whether or not to plead guilty to this charge has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

ImprisonmentThis offence carries a maximum penalty of 15 years imprisonment.

This is an indictable offence which would be heard in the County Court.

What is the legal definition of Setting Traps to Kill?

A person who sets a trap or device with the intention of killing another person (whether a trespasser or not) or being reckless as to whether or not another person (whether a trespasser or not) is killed is guilty of an indictable offence.

Penalty: Level 4 imprisonment (15 years maximum).

Legislation

The relevant legislative provision for this offence is section 25 of Crimes Act 1958 (Vic) (the Act).

Elements of the offence

The prosecution must prove the following two elements to prove this charge:

  1. The accused set a trap or device;
  2. The accused intended that the trap or device kill another person or was reckless as to whether or not another person could be killed by the trap.

Element 1: The accused set a trap or device
The prosecution must first prove that the accused set a trap or device.

‘Trap or device’ is not defined in the Act. In the context of this offence, a trap or device is something that is used to catch, retain [or harm] animals, typically by allowing entry but not exit or by catching hold of a part of the body.3

Whether or not something qualifies as a trap or device will depend on the circumstances of the case.

Element 2: The accused intended that the trap or device kill another person or was reckless as to whether or not another person could be killed
The second element of this offence requires that the accused must have intended that the trap or device kill another person or was reckless as to whether the trap could kill another person.

‘Intention’ means the accused meant for the trap or device to kill another person.

Being ‘reckless’ as to whether or not the trap could kill another person means that the accused set the trap or device knowing that another person would probably be killed as a result of them setting the trap or device.4 ‘Probably’ means ‘likely to happen’.5

Call Doogue + George



[1] Crimes Act 1958 ss 322O and 322R.
[2] Crimes Act 1958 s 25.
[3] Oxford English Dictionary online; accessed 13/11/2018 <https://en.oxforddictionaries.com/definition/trap>.
[4] R v Crabbe (1985) 156 CLR 464
[5] R v Crabbe (1985) 156 CLR 464