When does a threat to kill become a criminal offence?

201411.06
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We’ve all probably uttered the words to the effect of wanting to ‘kill someone’, but of course we don’t actually mean we’d like to kill that person. However, it probably goes without saying that it is an offence to make threats to kill, and all jurisdictions in Australia have statutory provisions outlawing the act – although, there are a number of elements to the offence that this piece will further explore.

How is the offence defined?

Before turning to the common law, we can look to s 31 of the Crimes Act 1900 as our statutory example, with the following actions considered an offence:

“(1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years.

(2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances).”

Now looking to the common law, in R v Leece (1995) 78 A Crim R 531, after reviewing the relevant authorities, Higgins J said (at 536):

“One may infer from these quotations that to be a threat to kill, the relevant utterance or communication must convey, objectively, to the hypothetical reasonable person in the position of the listener or recipient that the publisher proposes to kill the listener or recipient or another person. If it conveys a merely hypothetical proposal that will not suffice, but a conditional threat, particularly when the person threatened is entitled not to meet such conditions, will suffice as “a threat”. There may, of course, be a fine line between such a conditional threat and a merely hypothetical one.”

The elements of the offence

In Luu v Cook (2008) 185 A Crim R 403, Penfold J set out the elements of the offence (at 405-406 [15]) based on Leece and Barbaro v Quilty[1999] ACTSC 119, which are as follows:

  • there must be a declaration of an intention to end the life of the person threatened;
  • utterances may amount to a threat to kill by reason of circumstances previously, even if it is not literally expressed as such a threat;
  • there must be a threat that the person will be killed, not just injured (e.g. a threat to shoot someone would not by itself satisfy the requirement);
  • a conditional threat to kill may be a sufficient threat if the person threatened is entitled not to meet the condition;
  • there must be an utterance or communication conveying, objectively, to the hypothetical reasonable person that the person publishing the threat, proposes to kill that person;
  • a history of threats may be able to supply the meaning of an intention to kill if this is not clear from the conduct charged;
  • threats to murder a person need not be a threat of murder by the accused personally, nor of murder ‘there and then’, or murder that the accused has an immediate capacity to carry out;
  • in cases where the specifying of the charge is of intention, rather than recklessness, the person threatened must be intended to believe that the threat will be carried out;
  • the fact that the person threatened took the threat seriously, or held the belief that it would be carried out, is not, however sufficient;
  • there must be a threat that an objective and reasonable bystander, knowing the history of the prior dealings between the accused and the person threatened, would believe is intended to be carried out;
  • it is not necessary for the person uttering the threat to intend that it be carried out;
  • the question of whether a reasonable person in the position of the person threatened would fear that the threat would be carried out.