Extortion by threat — blackmail
Crimes Act 1900 (NSW), ss 99, 100, 100A, 101, 102, 103, 104, 105
This suggested direction deals with extortion under s 99 of the Crimes Act 1900, but can be adapted to charges brought under ss 100, 100A, 101, 102 and 103. Section 105 of the Crimes Act 1900 provides that a threat or menace may be of violence or an accusation. The suggested directions adopt the word “threat” in preference to “menace” for the sake of clarity.
[5-410] Suggested direction — counts under s 99 of the Crimes Act 1900
[The accused] is charged with an offence which lawyers generally refer to as “extortion”, but which most non-lawyers would term “blackmail” … [read indictment to jury]
The offence of extortion or blackmail is committed when one person dishonestly makes a demand on another person for specified property in the possession of or under the control of that person, and that demand is accompanied by threat or force.
It is important to bear in mind that it is not necessary that the alleged victim of extortion or blackmail should actually give way to the threat or the force, nor should actually hand the property over to the person making the demand for it.
The first element to be proved by the Crown beyond reasonable doubt is that [the accused] made a demand on [the victim] for the property which is set out in the indictment.
A demand may be made in express terms, or it may be in terms which imply to the alleged victim that a demand is being made. In the present case, the Crown alleges that [the accused] made [his/her] demand of [the victim] by … [specify the Crown case as to demand]. Thus, the demand, says the Crown, was made in so many words and was put to [the victim] directly.
Here the Crown alleges that, although [the accused] did not make the demand in so many words, it was a clear inference from what was [said/done] to [the victim] that [the accused] was demanding that [the victim] should do what [he/she] was told.]
On the other hand, [the accused] denies that any such demand was made, whether in express words or by inference. [The accused] says that … [specify defence case as to demand].
If you are not satisfied beyond reasonable doubt that a demand was made, then that is the end of the matter. [The accused] is “not guilty” and must be acquitted. But if you are so satisfied, then you go on to consider the second element.
The second element to be proved by the Crown beyond reasonable doubt is that the demand was accompanied by [a threat/force]. What does the Crown allege here was the [threat/force] which [the accused] was making against … [victim’s name, or where appropriate, the property of victim’s name]?
The Crown has to prove what [the accused] actually said or did. When you have decided what [the accused] has been proved to have said or done, then you must ask yourselves whether these words and/or actions amounted to [a threat/force].
This is to be determined objectively, that is to say, you as the jury have to decide whether a person of ordinary firmness and courage would have regarded what [the accused] [said/did/implied] as [a threat/force], and would have likely to have been influenced by it so as to act in a manner contrary to [his/her] own wishes. This is the test to apply, rather than whether [the victim] was or would have likely to have been influenced by it to act in a way contrary to [his/her] wishes. That is what I meant by saying that the matter is to be determined objectively, by your assessment of the reaction of a person of ordinary firmness and courage, which may or may not have been the reaction of [the victim].
… [Set out the respective Crown and defence cases as to the threat or force].
If you are not satisfied beyond reasonable doubt that the demand, which you have found to have been made by [the accused], was in fact accompanied by [a threat/force] in the way in which I have explained to you, then that is the end of the matter and [the accused] is “not guilty”. But if you are so satisfied, then you must consider the third element.
The third element that the Crown must prove beyond reasonable doubt, is that [the accused], at the time when [he/she] made the demand on [the victim], did so with the intention to steal the property mentioned in the indictment. To prove this, the Crown must satisfy you beyond reasonable doubt that [the accused], when [he/she] made the demand, intended permanently to deprive [the victim] of this property, knowing or believing that [the accused] was not legally entitled to the property and that [the accused] acted with a dishonest state of mind.
How is a person’s intention established in a court of law?
… [A suggested direction on intention is to be found at [3-210] and may be adapted to suit the circumstances of the case].
… [If the accused raises a claim of right, a suggested direction is to be found at [5-880] and may be adapted to suit the circumstances of the case].
As to this, the Crown says … [specify the Crown case on intent to steal]. On the other hand, [the accused] says that … [specify the defence case on intent to steal].
The demand need not be communicated to the “target”, but there must be an intention to communicate it to the “target”, and in circumstances apt to achieve that end. The behaviour in making the demand is the gist of the offence: Austin v The Queen (1989) 166 CLR 669.
A menace or threat referred to in s 105 of the Crimes Act 1900 (which is not a definition section) can include harm to, or threatened theft of, property: DPP v Kuo (1999) 49 NSWLR 226 and cases there cited.
For a case where claim of right was raised in a count for demanding with menaces with intent to steal, see: R v Bernhard  2 All ER 140.
For a case where there was an implicit threat, see: DPP v Curby  NSWSC 745.