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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Possession of Object with Intent to Kill

Possession of an object with intent to kill or cause grievous bodily harm is a criminal offence punishable with five years imprisonment. However, it is an offence that is rarely charged.

Legislation

Section 33 of the Crimes Act 1900 provides that a person who:

has possession of an object capable of causing harm to another person; and
intends to use the object, or to cause or permit another person to use the object, unlawfully to kill another person or cause grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

What Is Grievous Bodily Harm?

Case law describes grievous bodily harm as a “really serious injury”. The Act also states that it is:

any permanent or serious disfiguring of the person; and/or
for a pregnant woman – loss of or serious harm to the pregnancy other than in the course of medical procedure (whether or not the woman suffers any other harm).

What Actions Might Constitute Possession of Object With Intent To Kill?

This is a charge where the elements of the offence are in more of a grey area than many other criminal charges. An almost infinite number of household and other items – from a toothbrush to a fire iron – could be considered capable of causing harm, as defined in the Act. Every case will turn on its own circumstances, including what is said or done by an accused person, and the position of the alleged offending object in relation to the accused and the intended victim.

What the Police Must Prove

To convict a person of possession of object with intent to kill or cause grievous bodily harm, the police must prove each element of the offence beyond a reasonable doubt that the accused:

possessed an object capable of causing harm to another person;
intended to use that object, or permit another person to use the object to
unlawfully kill or cause grievous bodily harm to another person or persons.

“Harm” is defined under the Act as including any of the following, whether permanent or temporary:

Physical harm: including unconsciousness, pain, disfigurement and physical contact that might reasonably be objected to in the circumstances. This requirement could be fulfilled whether or not there was an awareness of contact at the time the harm occurred; or
Harm to mental health, including psychological harm; or
Disease.

Possible Defences

A person charged with this offence can argue in their defence that:

the object was not in their possession;
the object was not capable of causing harm, as defined;
that they had not formed the requisite intent;
that they intended to use the object in self-defence.

Which Court Will Hear Your Matter?

A charge of Possession of an Object with Intent to Kill is most likely to be heard in the Magistrates Court. This is because the Prosecution can unilaterally elect to have the matter stay in that court, not giving the Defence a choice. However, If the Prosecution does not make such an election, it is still possible for the Defence to “consent to the jurisdiction” of the Magistrates Court. Otherwise, the case would be committed to the ACT Supreme Court.

The major differences are that:

the Magistrates Court cannot impose a sentence of greater than two years’ prison whereas the Supreme Court can impose up to the maximum penalty of five years;
a Supreme Court trial would be held before a judge and jury of 12 citizens whereas a Magistrates Court hearing would be before a lone magistrate.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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