Previous Topic

Next Topic

Book Contents

Book Index

7.4.11.1 - Charge: Threat to Inflict Serious Injury

Click here to obtain a Word version of this document for adaptation.

This charge is for conduct occurring on or after 1 July 2013. For conduct before that date, the charge must be adapted.

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

One - the accused made a threat to inflict serious injury.

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 inflict serious injury.

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

The law defines the word injury to mean physical injury or harm to mental health, whether temporary or permanent. A serious injury is an injury which endangers life or is substantial and protracted.[2]

[If there was a risk of multiple injuries, add the following shaded section]

In making your decision, you do not have to look at each of the threatened injuries individually, and decide whether or not any one of them is a serious injury. An injury may be a “serious injury” because of the cumulative effect of several injuries.

For this element to be met, the prosecution must prove that the accused threatened to inflict not only an injury, but a "serious injury".

[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 inflict serious injury, 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 inflict serious injury by [describe relevant prosecution evidence and/or arguments]. The defence denied this, arguing [describe relevant defence evidence and/or arguments]. This first element will only be satisfied if you are satisfied, beyond reasonable doubt, that the accused made a threat to inflict serious injury, which is an injury which endangers life or is substantial and protracted.

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 seriously injure [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 inflict serious injury 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 seriously injure [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 conclude 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 identified 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 inflict serious injury.

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 drawing conclusions earlier. [3] In this context, those directions mean that you may only conclude 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 conclusion open from the facts you have found. If any evidence causes you to have reservations about drawing such a conclusion, the benefit of your doubts must 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 a conclusion 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 inflict serious injury, the prosecution must prove to you, beyond reasonable doubt:

One – That NOA made a threat to inflict serious injury; 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 inflict serious injury.

 

Notes

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

[2] The judge should consider including an example of a serious injury, such as brain damage, or a stabbing which causes significant blood loss.

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

 

Last updated: 2 July 2020

See Also

7.4.11 - Threats to Inflict Serious Injury

7.4.11.2 - Checklist: Threatening Serious Injury