Blackmail
Crimes Act 1900 (NSW), s 249K
[5-5650] Introduction
Section 249K of the Crimes Act 1900 creates a single offence of blackmail, found at Pt 4B. A person is guilty of blackmail if they make an unwarranted demand with menaces with the intention of either obtaining a gain or causing a loss, or influencing the exercise of a public duty: s 249K(1). Section 249K(2) provides an aggravated form of the offence where the unwarranted demand with menaces involves an accusation, or a threatened accusation, that a person has committed a serious indictable offence.
The provision is based on the Model Criminal Code offence of blackmail: Second Reading Speech, Crimes Amendment Bill 2007, Legislative Assembly, Debates, 25/9/2007, p 2259; see also Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Final Report, December 1995, Ch 3, pp 179–192. According to that report, the Model Criminal Code blackmail offence was based on the Theft Act 1968 (UK) offence of blackmail: p 183.
For the purposes of s 249K, “unwarranted demand”, “menaces”, “obtaining a gain or causing a loss” and “public duty” are defined in ss 249L–249O respectively. “Menaces” is non-exhaustively defined as a threat (see s 249M(1)), however, Cavanagh J in Petch v R (2020) 103 NSWLR 1 at [127] observed that it is difficult to anticipate how any other meaning could be given to “menaces” for the purpose of s 294K.
[5-5660] Suggested direction — blackmail (s 294K)
The following direction can be modified where the charge alleges the accused made unwarranted demands with the intention of influencing the exercise of a public duty (s 249K(1)(b)). Modification will also be required in a case in which the Crown alleges the aggravating circumstance in s 249K(2).
The suggested direction assumes the menaces are constituted by a threat, the alleged victim of the demand and alleged victim of the threat are the same individual and the accused intended to carry out the threat themselves. The directions should be adapted appropriately if this is not the case.
The accused is charged with making an unwarranted demand with menaces with the intention of [obtaining a gain/causing a loss].
To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
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The accused intentionally made an unwarranted demand;
- 2.
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The demand was made with menaces;
- 3.
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The accused intended the demand be made with menaces that would cause a person of normal stability and courage to act unwillingly in response to the threat;
- 4.
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The accused intended to [obtain a gain/cause a loss].
If you are not satisfied of any one or more of these elements beyond reasonable doubt, then you must find the accused not guilty of the offence.
I will now explain to you what each of these elements means.
1. The accused intentionally made an unwarranted demand
The first element is that the accused intended to make an unwarranted demand. Intent and intention are very familiar words; in this legal context they carry their ordinary meaning. Intention may be inferred or deduced from the circumstances and from the accused’s conduct before, at the time of, or after they made the unwarranted demand.
A demand can be express or implied. In the present case, the Crown alleges the accused made their demand of [the complainant] expressly by … [specify the Crown case as to demand].
[Alternatively:
Here the Crown alleges that, although the accused did not make the demand expressly, you would infer from all of the circumstances and what was [said/done] to [the complainant] that the accused was demanding the property from them. [a direction on the care required in relation to drawing inferences should be considered: see [3-150]]
A demand is unwarranted unless the accused believes that there are reasonable grounds for the making of the demand and they reasonably believe that the use of the menaces is a proper means of reinforcing the demand.
2. The demand was made with menaces
The second element the Crown must prove is that the demand was made with menaces. Menaces include an express or implied threat of any action detrimental or unpleasant to another person.
A threat is not a menace unless:
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the threat would cause a person of normal stability and courage to act unwillingly in response to the threat; or
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the threat would cause the particular person to act unwillingly in response to the threat and the accused was aware of the vulnerability of the particular person to the threat.
3. The accused intended the demand be made with menaces by way of a threat
The third element is that the accused intended the demand be made with menaces by way of a threat.
4. The accused intended to [obtain a gain/cause a loss]
Finally, the Crown must prove the accused intended to [obtain a gain/cause a loss].
[Where the charge specifies a gain:
The Crown must prove the accused intended to obtain a gain. A “gain” means gain in money or other property, whether temporary or permanent, and includes keeping what one has. “Obtaining a gain” means obtaining a gain for oneself or for another, in this case [the complainant/another].
It is not necessary for the accused to know the amount of the gain when the demand was made.]
[Where the charge specifies a loss:
The Crown must prove the accused intended to cause a loss. A “loss” means loss in money or other property, whether temporary or permanent, and includes not getting what one might get. “Causing a loss” means causing a loss to another, in this case [the complainant/another].
It is not necessary for the accused to know the amount of the loss when the demand was made.]
[5-5670] Notes
- 1.
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While the directions are based on the language of the statute, the commentary at [5-5600]ff in relation to s 99 offences (demand property with menaces) and the common law may provide assistance.
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In the Second Reading Speech, the Attorney General described “menaces” as “a well-known term at law. It is not confined to threats of harm or violence, and will be defined, non-exhaustively, in the legislation to include express or implied threats of detrimental action”: Second Reading Speech, Crimes Amendment Bill 2007, Legislative Assembly, Debates, 25/9/2007, p 2259. See also Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Final Report, December 1995, Ch 3, p 185.
- 3.
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“Menaces” includes an express or implied threat of any action detrimental or unpleasant to another person (s 249M(1)(a)), and a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office (s 249M(1)(b)). A threat that would cause either an ordinary individual of normal stability and courage, or the particular victim, where the accused is aware of their vulnerability to the threat, to act unwillingly, is a menace: s 249M(2) (see s 249M(3) for equivalent provision in relation to threats against a government or body corporate).
- 4.
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The accused must intend to make a threat and intend to cause the person subject to that threat to act unwillingly in response to it: Petch v R [2020] NSWCCA 133 at [47]. Accordingly, the jury must be directed that the offence is only established if it is proved the accused intended to make an unwarranted demand with menaces which requires (amongst other things) proof that they intended to make a threat. No particular form of words is required but it must be made clear, especially in the case of an implied threat, that the accused intended to make an unwarranted demand, intended the demand to be with menaces and that this involves an intention to make a threat: Petch v R at [49]; cf Cavanagh J at [124]–[155] who held there was no requirement for the Crown to prove an intent to menace.
- 5.
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A threat characterised as an inducement will not constitute a menace. For example, in Petch v R the Crown was granted leave to amend the original indictment that alleged the unwarranted demand was made to improve the complainant’s job prospects, so that the menaces was particularised in terms that the complainant’s job prospects would be adversely affected if she did not comply with unwarranted demand: [19]; see also the discussion in R v Jessen [1997] 2 Qd R 213 at 220–221 (in relation to a similar Queensland provision).
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For an offence alleging the accused intended to obtain a gain, there is no requirement for the amount of the “gain” to be quantified; nor does the prosecution have to prove that the accused knew the amount of gain when the demand was made: R v Barrett (No 4) [2021] NSWSC 365 at [19]. The same reasoning would apply to an intention to cause a loss.