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7.4.10.1 - Charge: Threat to Kill

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I must now direct you about the crime of threatening to kill another person. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - the accused made a threat to kill.

Two - the accused either intended the complainant to fear that the threat would be carried out, or knew that the complainant would probably fear that it would be carried out.

Three - the accused acted without lawful justification or excuse.

I will now explain each of these elements in more detail.

Making the Threat

The first element that the prosecution must prove is that the accused made a threat to kill.

A threat to kill is made by declaring to another person the intention to kill someone. In this case the prosecution must prove that NOA declared to NOC his/her intention to kill [NOC/NO3P [1]].

[Add any of the directions from the following list that is relevant to the case.]

In determining whether the accused has made a threat to kill, you must take into account all of the circumstances of the alleged threat [if relevant add: including the relationship between NOA and NOC].

It is important to note that you do not need to determine whether or not NOC himself/herself thought that NOA would carry out the threat. The test is whether a reasonable person would have feared that the threat would be carried out.

Similarly, you do not need to determine whether NOA intended to carry out the threat.

In this case, the prosecution alleged that NOA made a threat to kill by [describe relevant prosecution evidence and/or arguments]. The defence denied this, arguing [describe relevant defence evidence and/or arguments]. It is only if you are satisfied, beyond reasonable doubt, that the accused made a threat to kill in the sense that I have described that this first element will be satisfied.

Accused’s Mental State

The second element that the prosecution must prove is that the accused either:

The two mental states I just mentioned are alternatives. This element will be satisfied as long as the prosecution can prove one of them beyond reasonable doubt. I will now examine each in turn.

Intention

This element will be satisfied if the prosecution can prove that the accused intended NOC to fear that his/her threat to kill [him/her/NO3P] would be carried out.

In this case the prosecution submitted that this was the case. [Insert relevant evidence and/or arguments]. The defence responded [insert relevant evidence and/or arguments].

It is for you to decide whether the prosecution has proven, beyond reasonable doubt, that the accused had this intention. If s/he did, then this second element will be met.

Knowledge that the Complainant Would Probably Feel Fear

A second way this element can be satisfied is by proving that NOA made the threat to kill knowing that it was probable that NOC would fear that it would be carried out. That is, NOA knew that NOC was likely to believe that s/he was going to kill [him/her/NO3P].

It is not sufficient for NOA to have known that it was possible that NOC would feel such fear. S/he must have known that that consequence was probable.

In determining this part of the test, you must be satisfied that NOA him/herself actually knew of the probability of NOC’s fear. It is not enough that you, or a reasonable person, would have recognised that likelihood in the circumstances.

In this case, the following evidence is relevant to your assessment of NOA’s state of mind: [Identify relevant evidence and the inferences to be drawn from that evidence].

Inferring states of mind

If proof of the accused’s mental state depends on the drawing of inferences, add the following shaded section

As I have stated, the prosecution contends that you should infer from the evidence that NOA had the appropriate state of mind at the relevant time.

A person’s intention at the time s/he commits an offence may be inferred from what s/he said and did, and also from what s/he failed to say and do. You should look at all of NOA’s proven actions before, at the time of, and after the alleged offence. All of these things may help you to determine what NOA’s intention was when s/he made the alleged threat to kill.

In particular, the prosecution has asked you to consider [describe evidence]. The defence has asked you to consider [describe evidence].

You will remember what I told you about inferences earlier. [2] In this context, those directions mean that you may only infer that NOA intended NOC to fear that the threat would be carried out, or that s/he knew that such a consequence was probable, if you are satisfied beyond reasonable doubt that that is the only inference open from the facts you have found. If any evidence causes you to have reservations about drawing such an inference, the benefit of your doubts should go to the accused.

If the jury might infer recklessness by using an objective test, add the following shaded section

In determining whether NOA knew that NOC would probably fear that s/he would carry out his/her threat, you [can/have been asked to] draw an inference from the probability that [you/the reasonable person] would have foreseen such a consequence in the accused’s situation.

I must warn you that, although this is a legitimate step in reasoning towards a conclusion about NOA’s state of mind, you must not treat this factor as decisive of the issue. It is not enough that you, or any other person, would have had such an awareness in the circumstances. You must be satisfied that NOA him/herself actually knew that it was likely that NOC would fear that s/he would carry out his/her threat.

The Accused Need Not Have Intended to Carry Out Threat

As with the first element, this element may be satisfied even if NOA never intended to carry out the threat. All that is required is that NOA intended NOC to fear that the threat would be carried out, or knew that it was probable that NOC would feel such fear.

In this case, the prosecution alleged that [describe relevant prosecution evidence and/or arguments]. The defence responded that [describe relevant defence evidence and/or arguments].

Lawful Justification and Excuse

The third element that the prosecution must prove is that there was no lawful justification or excuse for the accused making the threat.

If no defences are raised, add the following shaded section

In this case, there is no suggestion that NOA acted with any lawful justification or excuse. You should therefore have no difficulty finding this element proven.

[If any defences are open on the evidence, insert directions from the relevant topics here (see Part 8: Victorian Defences).]

 

Summary

To summarise, before you can find NOA guilty of making a threat to kill, the prosecution must prove to you, beyond reasonable doubt:

One – That NOA made a threat to kill; and

Two – That NOA either:

a) intended NOC to fear that the threat would be carried out; or

b) knew that NOC would probably fear that it would be carried out; and

Three – That NOA had no lawful justification or excuse for making that threat.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of making a threat to kill.

 

Notes

[1] Name of the third party who was allegedly threatened by the accused.

[2] This charge is based on the assumption that the judge has already instructed the jury about inferences. It will need to be modified if that has not been done.

 

Last updated: 2 July 2020

See Also

7.4.10 - Threats to Kill

7.4.10.2 - Checklist: Threatening to Kill