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Chapter 57: Threatening Violence

Table Of Contents  

[57.0] Introduction

This chapter will examine the offence of 'Threatening Violence', as provided for by section 89 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added)

[57.1] Offences 

Section 89 of the Penal Code (Ch. 26) states: 

'Any person who – 

(a)                with intent to intimidate or annoy any person, threatens to break or injure a dwelling – house; or 

(b)               with intent to alarm any person in a dwelling – house, discharges loaded firearms or commits any other breach of the peace, 

shall be guilty of a misdemeanour, and shall be liable to imprisonment for one year. 

If the offence is committed in the night the offender shall be liable to imprisonment for two years.'

[57.2] Intent To Intimidate Or Annoy

[57.2.1] Wording Of Charges 

'[Name of Defendant] at [Place] on [Date] with intent to [intimidate or annoy] a person namely [specify the name of the person] did threaten to [break or injure] a dwelling-house.'

Circumstance Of Aggravation 

Include the word 'night' in the charge.

[57.2.2] Elements 

A. Defendant 

B. Place 

C. Date 

D. Intent To 

[i] Intimidate; or 

[ii] Annoy 

E. Complainant

F. Threaten 

[i] Break; or 

[ii] Injure 

G. Dwelling - house

[57.2.3] Intent To Intimidate Or Annoy 

The term 'Intent To Intimidate Or Annoy' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The prosecution must prove 'beyond reasonable doubt' that the defendant had the intent to intimidate or annoy a person by threatening to break or injure a dwelling – house. 

Intention, which is a state of mind, can never be proven as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of this offence, 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to intimidate or annoy a person by threatening to break or injure a dwelling - house, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence 'Intoxication' is examined commencing on page 444.

[57.3] Intent To Alarm

[57.3.1] Wording Of Charges 

'[Name of Defendant] at [Place] on [Date] with intent to alarm a person namely [specify the name of the person] in a dwelling-house did [discharge a loaded firearm or commit a breach of the peace].'

Circumstance Of Aggravation 

Include the word 'night' in the charge.

[57.3.2] Elements 

A. Defendant 

B. Place 

C. Date 

D. Intent To Alarm 

E. Complainant 

F. Dwelling - house 

G.        [i] Discharge A Loaded Firearm; or 

[ii] Commit A Breach Of The Peace

[57.3.3] Intent To Alarm 

The term 'Intent To Alarm' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The prosecution must prove 'beyond reasonable doubt' that the defendant had the intent to alarm a person by discharging a loaded firearm or committing any other breach of the peace. 

Intention, which is a state of mind, can never be proven as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of this offence, 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to alarm a person by discharging a loaded firearm or committing any other breach of the peace, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

 [57.3.4] Breach Of The Peace 

The term 'Breach Of The Peace' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In R v Howell (1981) 73 CrAppR 31 [[1982] 1 QB 416; [1981] 3 AllER 383; [1981] 3 WLR 501; [1981] CrimLR 697] Watkins LJ, delivering the judgment of the Court, stated at page 37: 

'We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.'

[57.4] Dwelling - house 

The term 'Dwelling - house' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling – house is deemed to be part of the dwelling – house.' 

A motel unit occupies for a week was held to be a dwelling – house, see R v Halloran & Reynolds [1967] QWN 34.

[57.5] Night 

The term 'Night' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'the interval between half – past six o'clock in the evening and half – past six o'clock in the morning.'

[57.6] Sentencing 

The jurisdiction of the Courts in respect of these offences is examined commencing on page 14. 

Section 89 of the Penal Code (Ch. 26) provides that upon a defendant being found guilty under that section he/she is guilty of a misdemeanour and is liable to: 

·                     imprisonment for one year, if the offence were not committed at 'night'; and 

·                     imprisonment for two years, if the offence were committed at 'night'. 

The law relating to 'Sentencing Generally' commencing on page 918.

[57.7] Related Offences 

The following are offences which are related to the offences of 'Threatening Violence': 

·                     'Criminal Trespass', section 189(1) of the Penal Code (Ch. 26) which is examined commencing on page 502; 

·                     'Threatening Violence With Firearm', section 42 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 862; 

·                     'Riotous Or Disorderly Manner', section 175(d) of the Penal Code (Ch. 26) which is examined commencing on page 879; 

·                     'Going Armed In Public', section 83 of the Penal Code (Ch. 26) which is examined commencing on page 894; and 

·                     'Affray', section 87 of the Penal Code (Ch. 26).