7.5.15.1 - Charge: Blackmail

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Elements

I must now direct you about the crime of blackmail. To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt: 

One – The accused made a demand.

Two – The demand was made with an intention to [gain money or property / cause someone to lose money or property].

Three – The accused reinforced the demand with menaces.

Four – The accused intended the complainant to fear that the threat would be carried out if s/he didn’t comply with the demand.

Five – The demand was unwarranted.

I will now explain each of these elements in more detail.[1]

The Accused Made a Demand

The first element that the prosecution must prove is that the accused made a demand.

The demand does not need to have been clearly spelt out or made explicit. A person can make a demand indirectly or implicitly. This element will be met if a reasonable person would have understood that a demand was being made in the circumstances.

[Insert relevant evidence and arguments].

View to Gain or Intent to Cause Loss

The second element that the prosecution must prove is that the accused made the demand with the intention of [insert relevant intention, e.g., “gaining money for him/herself” or “causing NOV to lose property”].

[Describe relevant evidence and arguments].

The Demand was Accompanied by Menaces

The third element that the prosecution must prove is that the accused reinforced the demand with menaces.

This means that the accused must have made some threat to NOC. In this case, the prosecution say that NOA threatened to [describe alleged threat] unless [describe alleged demand].

[If relevant, add the following shaded section.]

To prove this element, the threat does not need to have been a threat of violent or criminal behaviour. This element will be met if the accused threatened any kind of negative or unpleasant action.

As was the case in relation to “demands”, the threat does not need to have been clearly spelt out or made explicit. A person can make a threat indirectly or implicitly. It is for you to determine whether a threat was made, bearing in mind all of the evidence in the case.

[If there is evidence that NOV was not affected by the threat, add the following shaded section.]

You are not required to find that NOV actually felt threatened by NOA’s [words/conduct]. A threat that does not achieve its purpose is still a threat.

However, you must be satisfied that NOA’s [words/conduct] could have caused an ordinary person of normal stability and courage to comply with the demand against his/her will. If those [words/acts] would not have intimidated anybody into complying with the demand, they will not have been a “threat”.

[If NOV was affected by the threat due to being especially timid, add the following shaded section.]

In this case, the prosecution argued that NOA threatened NOV by [describe threat]. The defence denied this, arguing that NOA’s alleged [words/behaviour] did not constitute a "threat". In particular, they argued that an ordinary person would not have felt threatened by [those words/ that behaviour], and the only reason NOV felt that way was because s/he is an especially timid or vulnerable person.

Ordinarily, [words/acts] that would not intimidate an ordinary person of normal stability and courage into complying with a demand will not be considered a “threat”. However, there is a limited exception to this rule. If a person knows or suspects that the victim is likely to be threatened by his/her [words/conduct], because s/he knows that the victim is an especially timid or vulnerable person, then his/her actions will constitute a “threat”. In such circumstances, it does not matter that an ordinary person would not have been intimidated by his/her [words/conduct].

[Insert relevant evidence and arguments].

The Accused Intended to Alarm the Victim

The fourth element that the prosecution must prove is that the accused intended the complainant to fear that the threat would be carried out if s/he didn’t comply with the demand.

It does not matter whether or not NOC actually felt any alarm or fear. This element only requires proof that the accused intended that NOC would fear that the threat would be carried out.

[Insert relevant evidence and arguments.]

The Demand was Unwarranted

The fifth element that the prosecution must prove is that the demand was unwarranted.

To prove that the demand was unwarranted, the prosecution must prove that when s/he made the demand, NOA either:

The focus of this element is on the accused’s beliefs at the time s/he made the demand. It is not enough to find that a reasonable person would not have believed that s/he had reasonable grounds for making the demand, or that a reasonable person would not have believed that the use of threats was proper. You must find that the accused did not have one or other of those beliefs.

This element will be satisfied if the prosecution proves that the accused did not believe that the use of threats was morally or socially acceptable. This is because it is not “proper” to reinforce a demand in a morally or socially unacceptable way.

[Where the threatened action is unlawful, add the following shaded section.]

Similarly, this element will also be met if the accused knew or suspected that the threatened action was unlawful. The law says that a person cannot believe that it is “proper” to behave in what s/he knows to be an unlawful manner, even if s/he believes his/her actions are somehow justified.

[Insert relevant evidence and arguments].

Summary

To summarise, before you can find NOA guilty of blackmail, the prosecution must prove to you, beyond reasonable doubt:

One – that NOA made a demand; and

Two – that NOA made the demand with an intention to [gain money or property / cause someone to lose money or property]; and

Three – that NOA reinforced the demand with menaces; and

Four – that NOA intended the complainant to fear that the threat would be carried out if s/he didn’t comply with the demand; and

Five – that NOA’s demand was unwarranted.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of blackmail.

 

Notes

[1] - If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: “It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven.”

Last updated: 3 December 2012

See Also

7.5.15 - Blackmail

7.5.15.2 - Checklist: Blackmail