The case will be heard in the Magistrates Court of Victoria if the accused consents and if there are no other serious charges against the accused. Otherwise, the case will be heard in the County Court of Victoria.
Section 20 of the Crimes Act 1958 provides that, a person who, without lawful excuse, makes to another person a threat to kill that other person or any other person intending that the other person would fear the threat would be carried out, or being reckless as to whether or not that other person would fear the threat would be carried out is guilty of an indictable offence.
The offence involves making an overt act that causes another person to fear the threat. There is an explicit expression of the threat such as when the offender texts or calls another person and conveys the threat to kill this person or even another person. Writing on facebook or other social media forum threatening to kill another person might lead to charges under Section 20 of the Crimes Act 1958. Emails, text messages, letters and other forms of communication used by the offender to convey the threat to kill can be used as evidence to file charges for this offence.
The following elements must be proven beyond reasonable doubt by the police and prosecution:
Emails, correspondences and text messages with the content of the threat to kill must be proven first by the prosecution to have come from the accused. Ownership by the accused of the email account or mobile number must first be proven by the prosecution beyond reasonable doubt and this is a factual circumstance that can be disputed by the accused. In sum, the accused can deny that he/she was the person who the threat.
Another defence usually invoked by an accused in this kind of charge is that the accused was acting in self-defence against the unlawful provocation of the alleged victim.
Lack of intent to cause fear to the offended party is another possible defence in this criminal charge. Perhaps the accused was just joking when the threat was made and there was absolutely no intention to cause fear.