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7.4.11 - Threats to Inflict Serious Injury

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Overview

  1. Making a threat to inflict serious injury is an offence under the Crimes Act 1958 s21.
  2. The offence has the following three elements that the prosecution must prove beyond reasonable doubt:
    1. The accused made a threat to the complainant to inflict serious injury upon 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 lawful excuse.

    Threats to Inflict Serious Injury

  3. The first element is that:
    1. The accused must have declared his or her intention to inflict serious injury upon either the complainant or another person;
    2. That declaration must have been made to the complainant.

    Nature of the Threat

  4. The threat must be to inflict serious injury upon either the complainant or another person.
  5. For information on the meaning of the term “serious injury”, see Intentionally Causing Serious Injury.
  6. As the threat must be to "inflict" serious injury rather than "cause" serious injury, it is unclear whether a threat to cause serious injury will always be covered by this offence. "Cause" is generally thought to be a wider term, that includes "inflict" (see R v Salisbury [1976] VR 452; R v Mandair [1995] 1 AC 208; R v Ireland & Burstow [1998] AC 147).
  7. While the prosecution must prove that the complainant received the threat, s/he need not be the person threatened. The accused may have threatened to inflict serious injury upon another person (Crimes Act 1958 s21).
  8. It is not necessary that the complainant have any particular relationship with the person threatened. This element will be satisfied even if the accused threatens to inflict serious injury upon someone that the complainant does not know (R v Solanke [1970] 1 WLR 1; R v Syme (1911) 6 Cr App R 257).
  9. It is not necessary that the accused threaten to personally injure the complainant or other person. The threat may be to have someone else carry out the assault (Barbaro v Quilty [1999] ACTSC 119).
  10. A threat can be conditional on the occurrence of a future event. It is not necessary that the accused have the immediate capacity or intention to carry out the threat (R v Leece (1995) 125 ACTR 1; Barbaro v Quilty [1999] ACTSC 119).

    How Can a Threat be Made?

  11. A threat can be made by words or conduct or both (R v Rich Vic CA 17/12/1997).
  12. A threat can be made in writing and delivered or left with another person. The threat does not have to be received at the same time that it is made (R v Jones (1851) 5 Cox CC 226).
  13. It is not necessary for the prosecution or the judge to identify the precise words or conduct that constituted the threat. Where the accused acted in a continuously threatening and abusive manner, the jury may consider whether his or her conduct as a whole amounted to a threat (R v Rich Vic CA 17/12/1997).

    Impact of the Threat

  14. It not necessary for the prosecution to prove that the complainant feared that the threat would be carried out, nor is it sufficient for the prosecution to prove that the complainant did feel such fear. (R v Rich Vic CA 17/12/1997; R v Alexander [2007] VSCA 178).
  15. 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. For example, it may be clear, in the context of the parties’ relationship, that the accused did not intend to move beyond heated words and gestures (Barbaro v Quilty [1999] ACTSC 119).

    The Accused’s State of Mind

  16. The second element requires the accused to have either:
    1. Intended the complainant to fear that the threat would be carried out; or
    2. Been reckless as to whether or not the complainant would fear that the threat would be carried out (Crimes Act 1958 s21).

    Intention

  17. It is not necessary for the accused to have intended to carry out the threat. The only issue is whether the accused intended the complainant to believe that the threat would be carried out (R v Alexander [2007] VSCA 178; Barbaro v Quilty [1999] ACTSC 119).
  18. The motive for making the threat is irrelevant (R v Solanke [1970] 1 WLR 1).
  19. To establish the requisite intention, all of the circumstances of the statement or conduct must be considered (R v Leece (1995) 125 ACTR 1; R v Alexander [2007] VSCA 178).

    Recklessness

  20. To have been reckless as to whether or not the victim would fear that the threat would be carried out, the accused must have been aware, when s/he made the threat, that it was probable that the complainant would fear that it would be carried out (R v Crabbe (1985) 156 CLR 464; R v Sofa Vic CA 15/10/1990).
  21. The accused must have been aware that it was "probable" or "likely" that the complainant would fear that the threat would be carried out. It is not sufficient for him/her to have been aware that this fear was merely "possible" or "might" result (R v Crabbe (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641).
  22. The accused him/herself must have been aware that the complainant would probably fear that the threat would be carried out. It is not sufficient that a reasonable person in the accused’s circumstances would have realised that the complainant would probably fear the threat (R v Sofa Vic CA 15/10/1990; c.f. R v Nuri [1990] VR 641).
  23. It is not appropriate to invite the jury to apply their normal understanding of the meaning of "recklessness". Conventional understanding of the term may include conduct that is negligent (Banditt v The Queen (2005) 224 CLR 262).
  24. When explaining recklessness to the jury, it is common for judges to require them to also find that the accused was indifferent to the consequences of his or her conduct (see, e.g., R v Sofa Vic CA 15/10/1990; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585; R v Wilson [2005] VSCA 78).
  25. While the abovementioned authorities suggest that an indifference to consequences is an independent element of recklessness at common law, there is strong authority for the proposition that an awareness of the probable consequences of conduct is all that is required (R v Crabbe (1985) 156 CLR 464).

    Threat Made Without Lawful Excuse

  26. The threat to inflict serious injury must have been made without any lawful justification or excuse (Crimes Act 1958 s21).
  27. Self-defence and prevention of crime are common forms of justification in this area (R v Cousins [1982] 1 QB 526).
  28. A person acts in self defence when s/he believes, on reasonable grounds, that his/her actions are necessary (Zecevic v DPP (Vic) (1987) 162 CLR 645. See Common Law Self-Defence).
  29. A person may justifiably make a threat to inflict serious injury in circumstances where it would not be reasonable to carry out that threat. A threat is a lesser form of harm than the execution of the threat (R v Cousins [1982] 1 QB 526).

 

Last updated: 30 November 2015

In This Section

7.4.11.1 - Charge: Threat to Inflict Serious Injury

7.4.11.2 - Checklist: Threatening Serious Injury

See Also

7.4 - Other Offences Against the Person

7.4.1 - Intentionally Causing Serious Injury in circumstances of gross violence

7.4.2 - Intentionally Causing Serious Injury

7.4.3 - Intentionally Causing Injury

7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

7.4.5 - Recklessly Causing Serious Injury

7.4.6 - Recklessly Causing Injury

7.4.7 - Negligently Causing Serious Injury

7.4.8 - Common Law Assault

7.4.9 - Statutory Assault

7.4.10 - Threats to Kill

7.4.12 - Stalking (From 7/6/11)

7.4.13 - Stalking (10/12/03 - 6/6/11)

7.4.14 - Conduct Endangering Life

7.4.15 - Conduct Endangering Persons

7.4.16 - Extortion

7.4.17 - False Imprisonment

7.4.18 - Child Stealing

7.4.19 - Kidnapping (Common Law)

7.4.20 - Kidnapping (Statutory)

7.4.21 – Common law riot

7.4.22 - Affray