The criminal offence of making threats to kill
Published in: March 2017
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 (NSW) 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 ) based on Leece and Barbaro v Quilty  ACTSC 119, which are as follows:
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