Threats to Kill

In Victoria, the offence of Threat to Kill is in section 20 of the Crimes Act 1958 Vic, which is causing another to believe that threats to kill will be carried out.

Are you accused of making a Threat to Kill? You will want to speak with one of our experienced lawyers about how to deal with the allegations.

Our specialised criminal defence lawyers have represented many clients charged with making a Threat to Kill.

Police interview
Before agreeing to attend the Police station for a Police interview, you should speak with one of our lawyers first. Anything you tell the Police during your interview can be used against you at the discretion of the Police. It can also assist the Police in their investigation.

A Police interview can be stressful. You may want to know – should I tell the Police what happened? Should I give them my mobile phone? Should I provide them with a statement? It is important to know that Police officers are trained interviewers and are asking you questions with the hope that you will make admissions.

One of our lawyers can attend the Police station with you if you feel more comfortable having someone on your side to assist you through the interview process.

Pleading not guilty
Through careful planning, our defence lawyers have obtained acquittals for people charged with making a Threat to Kill. Our approach is to formulate a defence strategy early on and probe the Police for disclosure material which they may not otherwise provide.

Our lawyers are proactive in their approach and will consider:

  • Are there draft Police statements not included in the brief?
  • Are there text messages which assist your defence?
  • Are there people who the Police have not spoken to who can shed some light on this case?
  • Is there evidence which proves your innonce which needs to be collected?
The answer to these questions can lead to a charge of Threat to Kill being withdrawn.

Pleading guilty
Our defence lawyers have conducted many pleas in mitigation for people pleading guilty to Threat to Kill charges. This experience assists our clients in having a lawyer who knows what works to avoid a prison sentence. Our lawyers can direct you to relevant counsellors, help you gather character references and prepare you for the plea hearing.

Call us and discuss how to get the best result.

Sentencing
Sentencing in the higher courts of VictoriaSentencing Statistics Pie Chart for Make Threat to Kill in the Higher CourtsSentencing in the Magistrates’ Courts of VictoriaSentencing Statistics Pie Chart for Make Threat to Kill in the Magistrates' Courts
Which court will the case be heard in?
This charge may be heard either in the Magistrates’ Court or a higher court depending on the gravity of the circumstances surrounding the alleged offending.

Threat to Kill: Examples
After a road rage incident between to drivers, the driver of one of the cars gets out of their car, approaches another vehicle’s driver’s side door and yells directly at the other driver ‘I’m going to kill you and your family’ before forcefully kicking and striking their car.

A person who has been cheated on sends their partner’s lover number of text messages threatening to kill them. The messages include stating the lover’s address, stating how the person plans to kill them and when the person plans on doing so.

What is the legal definition of Threats to Kill?
A person who, without lawful excuse, makes to another person a threat to kill that other person or any other person—

  1. intending that that other person would fear the threat would be carried out; or
  2. being reckless as to whether or not that other person would fear the threat would be carried out—
is guilty of an indictable offence.

Threat to Kill: The legislation
This offence is governed by section 20 of the Crimes Act 1958 (Vic) which reads as follows:

A person who, without lawful excuse, makes to another person a threat to kill that other person or any other person—

  1. intending that that other person would fear the threat would be carried out; or
  2. being reckless as to whether or not that other person would fear the threat would be carried out—
is guilty of an indictable offence.

The maximum penalty that may be imposed for a charge of Threat to Kill is 10 years imprisonment.

Threat to Kill: The elements
The offence of threat to kill has three elements that the prosecution must prove beyond reasonable doubt:

  1. The accused made a threat to the complainant to kill either the complainant or another person;
  2. The accused either:
    1. Intended the complainant to fear that the threat would be carried out; or
    2. Was reckless as to whether or not the complainant would fear that the threat would be carried out; and
  3. The threat was made without a lawful excuse.
Element 1: The accused made a threat to the complainant to kill either the complainant or another person
The accused must have made a threat to kill to another person (the complainant). While the complainant received the threat, they need not be the person threatened. The accused may have threatened to kill a third party.

The accused need not have any particular relationship with the person threatened.1

The threat must be to kill, not to inflict some lesser harm such as a serious injury.2

The person making the threat may threaten to have someone else carry out the killing.3

The threat to kill can be made by words or conduct, or both. A threat to kill can also be made in writing.4

In making its determination, the jury must consider the relationship between the accused and the complainant. Violent or colourful language that may appear threatening at first sight, may in fact not be a “threat” when the relationship is taken into account.5

Element 2: The accused’s state of mind
The second element of the offence requires the accused to have either:

  1. Intended that the complainant fear the threat would be carried out; or
  2. Been reckless as to whether the complainant would fear the threat would be carried out.
Intention
It is not necessary for the accused to have intended to carry out the threat. The accused need only intend that the complainant would fear they would carry out the threat.6

The accused’s motive for making the threat is irrelevant when considering intention.7

All the circumstances of the statement or conduct must be considered when establishing intention.8

“Did you intend for someone to fear your threat would be carried out?”
Recklessness
To have been reckless as to whether the complainant would fear that the threat to kill would be carried out, the accused must have been aware when they made the threat that it was probable that the complainant would fear that the threat would be carried out.9

The accused being aware of a ‘possibility’ or ‘likelihood’ that the complainant would fear that the threat would be carried out is insufficient to establish recklessness.10

The accused themselves must have been aware that it was probable that the complaint would fear the threat to kill would be carried out for recklessness to be established. It is insufficient that a reasonable person in the accused’s circumstances would have realised that the complainant would probably fear the threat.11

Element 3: The threat is made without lawful excuse
For the offence to be made out, the accused must have made the threat without any lawful justification. Self-defence and prevention of crime are common forms of justification. A person acts in self-defence when they believe, on reasonable grounds, that their actions are necessary.12

Threat to Kill: Defences
Some possible defences to the charge of threat to kill are the following:

  • No threat has been made.
  • A threat has been made, however it was of a lesser harm such as a threat to inflict injury.
  • The person who has been accused of making the threat was not the one who made it (wrongful identification). For example, someone may use another person’s Facebook account to make a threat to kill, making it appear that the owner of the account made the threat when this was in fact not the case.
  • The person who made the threat was forced to make it by another person (duress).
  • The person who made the threat lacked the necessary state of mind (i.e. intent or recklessness that the complainant would fear that the threat would be carried out).
Questions in cases like this
  • Did you threaten to kill someone?
  • Did you intend, or were you reckless, as to whether the other person would fear the threat would be carried out?
Maximum penalty for section 20 of the Crimes Act 1958
The maximum penalty for Threats to Kill (s20 of the Crimes Act 1958) is 10 years imprisonment.

Other important resources
Case studies from our firm involving Threats to Kill

[1] R v Solanke [1970] 1 WLR 1; R v Syme (1911) 6 Cr App R 257
[2] R v Leece(1995) 125 ACTR 1
[3] Barbaro v Quilty [1999] ACTSC 119
[4] R v Rich Vic CA 17/12/1997; R v Jones (1851) 5 Cox CC 226
[5] Barbaro v Quilty [1999] ACTSC 119
[6] R v Alexander [2007] VSCA 178; Barbaro v Quilty [1999] ACTSC 119
[7] R v Solanke [1970] 1 WLR 1
[8] R v Leece (1995) 125 ACTR 1; R v Alexander [2007] VSCA 178
[9] R v Crabbe (1985) 165 CLR 464; R v Sofa Vic CA 15/10/1990
[10] R v Crabbe (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641
[11] R v Sofa Vic CA 15/10/1990; c.f. R v Nuri [1990] VR 641
[12] Zecevic v DPP (Vic) (1987) 162 CLR 645