S318 Crimes Act 1900 (NSW): Guide to Threat to Murder Offences

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Table of Contents#

1. What is Section 318 of the Crimes Act 1900 (NSW)?
2. Core Elements the Prosecution Must Prove for a Conviction
3. What Counts as a "Threat" Under S318?
4. Penalties for a S318 Threat to Murder Conviction
5. Valid Defences to a S318 Charge
6. Steps to Take If You Are Charged With Threat to Murder
7. Frequently Asked Questions (FAQs)
8. References

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1. What is Section 318 of the Crimes Act 1900 (NSW)?#

Section 318 of the Crimes Act 1900 is the NSW legislative provision that criminalises threats to murder another person. It is classified as a serious indictable offence, meaning it is typically dealt with in higher courts (District or Supreme Court of NSW) for serious cases, though minor instances may be heard in the Local Court.

Unlike assault or grievous bodily harm charges, S318 does not require physical harm to the victim: the act of making a credible threat to kill is enough to constitute an offence. This provision exists to protect community safety and prevent harm by punishing conduct that causes significant fear and risk of future violence.

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2. Core Elements the Prosecution Must Prove for a Conviction#

For you to be found guilty of a S318 offence, the prosecution must prove each of the following elements beyond a reasonable doubt:

1. You made a threat to murder a specific individual or group of people. The threat does not need to be immediate (e.g. a threat to kill someone in 6 months still qualifies).
2. You had the required mental state: either
   • You intended for the victim to fear the threat would be carried out, or
   • You were reckless as to whether the victim would fear the threat was real (i.e. you knew there was a risk the victim would take the threat seriously and proceeded anyway) Note: You do not need to actually intend to carry out the murder to be convicted
3. You intended the victim to fear the threat would be carried out, or were reckless as to whether the victim would fear that.

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3. What Counts as a "Threat" Under S318?#

Threats do not need to be verbal to qualify under S318. Recognised forms of threats include:

• Verbal threats (in-person, over phone calls, voice notes, public speeches)
• Written threats (text messages, social media posts/comments, emails, handwritten notes, graffiti)
• Physical gestures (throat-slitting motions, pointing a weapon at someone, chasing a person while yelling threatening statements)
• Third-party threats (asking or instructing another person to pass a murder threat to the victim)
• Anonymous threats (threats sent from fake social media accounts, blocked phone numbers, or untraceable messaging platforms)

A common misconception is that "it was just a joke" is an automatic defence. This is only true if the context makes it absolutely clear that no reasonable person would interpret the comment as a real threat. For example, yelling "I’m gonna kill you" to a friend while playing a competitive video game is not a S318 offence, but yelling the same line while chasing that friend with a knife will qualify.

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4. Penalties for a S318 Threat to Murder Conviction#

Penalties vary depending on the severity of the offence, and whether the case is heard summarily (in Local Court) or on indictment (in District/Supreme Court):

Aggravating factors that will lead to harsher penalties include:

• The threat was made against a police officer, emergency worker, teacher, or healthcare worker
• The offence occurred in a domestic or family violence context
• The threat was part of an ongoing pattern of harassment or stalking against the victim
• The victim was a minor or vulnerable person
• You have a prior criminal record for violent offences
• The threat caused the victim significant psychological harm, or forced them to take safety measures (e.g. moving house, getting a restraining order)

A S318 conviction will also result in a permanent criminal record, which can impact your ability to secure employment, travel overseas, obtain a firearms licence, or apply for certain visas.

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5. Valid Defences to a S318 Charge#

If you have been charged under S318, your lawyer may argue one of the following recognised defences to have the charge dropped or dismissed:

1. The threat was never made: You can prove you did not make the threat (e.g. mistaken identity, the victim fabricated the allegation, the message was sent from a hacked account)
2. No reasonable person would take the threat seriously: The comment was clearly hyperbole, satire, or performance (e.g. part of a play, comedy skit, or clearly joking context with no risk of harm)
3. Self-defence: You made the threat to protect yourself or another person from imminent unlawful harm (e.g. yelling "if you come closer I’ll kill you" to someone who is actively assaulting you)
4. Duress: You were forced to make the threat by another person who threatened immediate serious harm to you or a loved one if you refused
5. Mental health impairment: You were suffering from a diagnosed mental condition at the time of the incident that meant you could not form the required intent to make the threat, or understand the consequences of your actions

Note: Voluntary intoxication from alcohol or drugs is not a valid defence to a S318 charge, unless the intoxication was so extreme that you were unable to form basic intent (a very high legal threshold that is rarely accepted by courts).

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6. Steps to Take If You Are Charged With Threat to Murder#

If you are arrested or charged with a S318 offence, follow these steps to protect your legal rights:

1. Exercise your right to silence: You are only required to give police your basic identifying details (name, address, date of birth). Do not answer any questions about the incident or make a formal statement until you have a lawyer present.
2. Contact a specialist criminal defence lawyer immediately: S318 is a serious violent offence, so you need a lawyer with experience defending NSW violent offence charges. You can apply for Legal Aid if you cannot afford private representation.
3. Gather supporting evidence: Collect all records related to the incident, including text messages, call logs, social media screenshots, CCTV footage, and contact details of witnesses who can support your version of events.
4. Do not contact the victim directly: Any direct or indirect contact with the alleged victim could lead to additional charges of intimidation or breach of bail conditions. All communication should go through your legal team.
5. Follow your lawyer’s advice: Your lawyer will advise you on whether to apply for bail, enter a plea of guilty or not guilty, and what evidence to present to strengthen your case.

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7. Frequently Asked Questions (FAQs)#

Q: Can I be charged with S318 for an anonymous social media threat?#

A: Yes. Police can trace account ownership, IP addresses, and device metadata to identify the sender of anonymous threats, and you can be charged even if the victim does not know your real identity.

Q: Is a verbal threat without any physical evidence enough for a conviction?#

A: Yes. If the victim’s testimony is credible and corroborated by other witness accounts, you can be convicted of S318 even if there is no recording or written record of the threat.

Q: Can I get a non-conviction outcome (Section 10 dismissal) for a S318 charge?#

A: It is possible for very minor, first-time offences (e.g. a one-off heat-of-the-moment comment with no harm caused, no prior criminal record, and genuine remorse), but it is not guaranteed. Courts treat S318 as a serious violent offence, so non-conviction outcomes are rare.

Q: Do I need to direct the threat at a specific person to be charged?#

A: Yes. Vague, general threats (e.g. "I’m gonna kill someone one day") with no identifiable target do not qualify as S318 offences, though they may lead to other public order or nuisance charges.

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8. References#

1. NSW Legislation. Crimes Act 1900 No 40, Section 318. Retrieved from https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec318
2. NSW Judicial Commission. Criminal Trial Courts Bench Book: Threat to Murder. Retrieved from https://www.judcom.nsw.gov.au/publications/benchbks/criminal/threat-to-murder.html
3. Legal Aid NSW. Violent Offences: Your Rights. Retrieved from https://www.legalaid.nsw.gov.au/publications/factsheets-and-guides/criminal-law/violent-offences-your-rights