Frequently Asked Questions

Q: What are the elements of the offence of making threats to kill?

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.


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