Threats to Kill or Cause Bodily Harm: Criminal Offences in NSW

A threat to kill or injure another person can lead to serious criminal charges, even when no physical violence occurs. However, whether a communication amounts to an offence depends on the words used, the surrounding circumstances and the legal requirements of the particular charge.

Allegations involving threats require careful assessment. A statement should not be considered in isolation from its context, and different offences apply to different forms of communication.

George Sten & Co provides advice and representation for people facing allegations involving threats, intimidation and related criminal offences.

Documents containing threats: section 31

Section 31 of the Crimes Act 1900 (NSW) creates an offence involving documents that threaten to kill or inflict bodily harm on any person.

The provision applies to a person who, intentionally or recklessly and knowing the document’s contents, sends or delivers it, or directly or indirectly causes it to be received.

The maximum penalty under section 31 is 10 years’ imprisonment. This is the statutory maximum, rather than the sentence imposed in every case.

The prosecution must prove the required elements beyond reasonable doubt. Relevant issues may include the accused person’s involvement, their knowledge of the contents and whether the document contains a threat of the kind covered by the legislation.

Does the threatened person have to receive the document?

Section 31 expressly provides that actual receipt is not necessary where a document has been sent or delivered. It also provides that the threat does not have to be communicated to the person concerned or to the relevant recipient or intended recipient.

It would therefore be incorrect to assume that a charge must fail simply because the threatened person never saw the document.

The precise conduct alleged must still fall within the provision, and the prosecution must establish all other required elements.

What amounts to a threat to kill?

Courts consider the meaning conveyed by a communication in its context.

In R v Leece (1995) 78 A Crim R 531, Higgins J discussed whether the words or conduct would convey to a reasonable person in the recipient’s position a proposal to kill the recipient or another person.

That case concerned ACT legislation. Its discussion assists in explaining how threatening language may be interpreted, but it should not be treated as a complete statement of the elements of section 31 in NSW.

Can a conditional statement be a threat?

A threat does not necessarily cease to be threatening because it depends on a condition.

For example, a statement threatening violence unless someone takes a particular action may convey a threat, depending on its wording and circumstances. The discussion in Leece distinguished a conditional threat from a merely hypothetical proposal.

The distinction can be difficult. The use of words such as “if” does not, by itself, determine whether an offence has occurred.

Why context matters

The meaning of a communication may depend on more than its literal wording. Relevant evidence can include:

• The complete conversation or document.
• Earlier communications between the people involved.
• The circumstances in which the statement was made.
• Accompanying conduct or gestures.
• The identity of the person who created or sent the communication.
• Evidence concerning the accused person’s knowledge and state of mind.

The later appeal in Leece also demonstrates the importance of assessing the alleged words and conduct in context. A person should not assume that ambiguous wording necessarily prevents a prosecution.

Are all threatening communications covered by section 31?

No. Section 31 specifically concerns documents containing threats. Other provisions may apply to spoken threats, intimidation or communications made using telecommunications services.

The applicable offence depends on the alleged conduct. A legal assessment should identify the precise charge and its elements rather than treating every threatening statement as the same offence.

Responding to an allegation involving threats

If police wish to speak with you about an alleged threat, obtain legal advice promptly. Preserve relevant communications, including the complete message history, rather than deleting material or retaining only selected extracts.

A criminal defence lawyer can examine the evidence, identify disputed issues and explain your options before an interview or court appearance.

Speak with George Sten & Co Criminal Lawyers

Allegations involving threats can raise significant questions about meaning, context, identification and intention. Our lawyers can review the prosecution’s case and prepare an approach suited to your circumstances.

Call George Sten & Co on (02) 9261 8640 to arrange an appointment.

For urgent legal assistance, call our 24-hour line on 0412 423 569.