Threats to Kill or Harm: South Australian Criminal Law

By James Cobiac


Threatening to kill or harm another person, without legal justification, is an offence against South Australian Criminal Law. For a charge of making an unlawful threat against another to be proved the threat must be intended to give rise to fear of imminent attack in the recipient of the threat. If you have been charged with making unlawful threats against another person it is important to seek advice from a criminal lawyer about the circumstances of the alleged offending and any possible defences that may be available to you. The key aspect of these charges is the intent that was imparted to the words or conduct when they were directed to the recipient.

To prove a charge of unlawful threat the Crown must prove that the accused actually intended by their words and conduct to cause the recipient to fear that an attack was imminent, or was recklessly indifferent as to the form and effect that those words were to have on the recipient. In the criminal law jurisdiction, being recklessly indifferent means the suspect thinks about what the likely impact of their words, or conduct, will be on the victim and decides to engage the conduct or words against the recipient anyway. Proving that the defendant turned their mind to the words and conduct they were going to adopt and then proceeding with it having regard to the possible consequences can be very difficult to prove. Often people react to situations without thinking and there are unintended consequences upon others. Additionally, a defendant may talk or conduct themselves in a manner toward another that they did not even realise was threatening to the recipient, or indirectly threaten another (an unintended recipient) without realising the quality of their conduct. Such instances may, depending on the circumstances, undermine a charge of making an unlawful threat if the person making the threat was not aware that their words and conduct were not proper measured against the general standards of society. Intending to threaten another and engender fear in that person can be even more difficult to prove depending on the circumstances of the case. The context in which the words were spoken and the “trigger” in the circumstances are important matters that will need to be considered by the court before making a finding. The words may have been intended to threaten another, not threaten at all, be intended in the circumstances as a joke, or employed to deter a perceived threat or attacker. These are all matters upon which a lawyer should be consulted if you have been charged with this type of offending.

The law also carries with a defence or exception with respect to circumstances where the accused person makes threats with lawful justification. Making out this defence will be heavily informed by the circumstances in which the words were uttered and the intended effect of those words. If you felt threatened and were attempting to deter an attacker it may be that your words and conduct were lawful in the circumstances and cannot be subjected to an allegation.

If you have been charged with criminal offending in Adelaide it is important that you seek advice from a lawyer. Culshaw Miller Criminal Lawyers are available to give advice or representation 24 hours a day on 0418 421 153. To make an appointment contact us on (08) 8464 0033.