7.5.15 - Blackmail

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Overview

  1. Blackmail is an offence under the Crimes Act 1958 s87.
  2. The offence has the following five elements:
    1. The accused made a demand;
    2. The demand was made with a view to gain for the accused or another, or with intent to cause loss to another;
    3. The demand was made with menaces;
    4. The accused intended the recipient of the demand to fear that the threat would be carried out unless the recipient complied with the demand;
    5. The demand was unwarranted.

    Making a Demand

  3. The first element the prosecution must prove is that the accused made a demand of the victim (Crimes Act 1958 s87(1)).
  4. The nature of the demand is immaterial (Crimes Act 1958 87(2)).[1]
  5. The demand may be implicit or explicit (R v Clear [1968] 1 QB 670; R v Collister (1955) 39 Cr App R 100; R v Lambert [2010] 1 Cr App R 21; R v Akhmatov [2004] EWCA Crim 1004; R v Studer (1915) 11 Cr App R 307; R v Jessen [1997] 2 Qd R 213).
  6. It is for the jury to determine whether, in all the circumstances of the case, there was a demand. The test is whether a reasonable person in the victim’s circumstances would have understood that a demand was being made (R v Collister (1955) 39 Cr App R 100).
  7. In determining this issue, the jury should consider matters such as the accused’s demeanour and the circumstances that existed at the time of the alleged demand (R v Collister (1955) 39 Cr App R 100).
  8. A statement phrased as a request may, in some cases, constitute a demand, such as where it is backed up by a threat (R v Clear [1968] 1 QB 670; R v Collister (1955) 39 Cr App R 100; R v Lambert [2010] 1 Cr App R 21; R v Akhmatov [2004] EWCA Crim 1004; R v Studer (1915) 11 Cr App R 307; R v Jessen [1997] 2 Qd R 213).
  9. The offence does not require proof that the demand was successfully communicated. It is sufficient if the demand was made in circumstances in which it was likely that the demand would reach the intended recipient (Austin v The Queen (1989) 166 CLR 669; Treacy v DPP [1971] AC 537; Bank of Valletta PLC v NCA [1999] FCA 791).[2]
  10. Principles of agency should not be used when analysing or explaining the process of making a demand (Latorre v R [2012] VSCA 280). If the prosecution argues that the accused committed the offence in conjunction with another person, the judge should explain the principles of complicity or the doctrine of innocent agency.
  11. Where a person is able to recall or rescind a demand before it is received by the recipient, it may not be appropriate to find that the demand has been made. This may occur, for example, when the person uses a courier to deliver a letter and retains control over whether the courier completes the process (see Austin v The Queen (1989) 166 CLR 669; Treacy v DPP [1971] AC 537).

    Demand made with a View to Gain or Intent to Cause Loss

  12. The second element the prosecution must prove is that the demand was made with:
  13. “Gain” and “loss” are to be construed as extending only to gains or losses in money or other property (Crimes Act 1958 s71).
  14. Consequently, while the demand itself does not need to be for money or property (see above), the accused must make that demand with a view to gain money or property for him/herself or another, or with an intention of causing another person to lose money or property.
  15. Demands for custody of a child, sexual intercourse or the withholding of evidence therefore do not satisfy the second element (E Griew, The Theft Acts, 7th ed, London, Sweet & Maxwell, 1995. See Crimes Act 1958 s71(1)).
  16. Unlike theft, blackmail does not require proof of an intention to permanently deprive. The definition of “gain” and “loss” in the Crimes Act 1958 includes temporary gains and losses (s71).
  17. “Gain” includes keeping what one has, as well as obtaining something one does not (Crimes Act 1958 s71).
  18. This element will therefore be met even if the accused demands payment of a debt owed to him or her, as the realisation of a debt involves obtaining something one does not have (i.e., “hard cash” rather than a mere right of action) (R v Parkes [1973] Crim LR 358. See also R v Lawrence (1973) 57 Cr App R 64; Attorney-Generals Reference (No 1 of 2001) [2002] 3 All ER 840).
  19. “Loss” includes not getting what one might, as well as parting with what one has (Crimes Act 1958 s71).

    The Demand was made with Menaces

  20. The third element the prosecution must prove is that the demand was made with menaces (Crimes Act 1958 s87(1)).
  21. The words “menaces” and “threats” have substantially the same meaning (R v Clear [1968] 1 QB 670).[3]
  22. It is for the jury to determine whether the demand was made with menaces (R v Clear [1968] 1 QB 670; R v Tomlinson [1895] 1 QB 706; DPP v Kuo (1999) 49 NSWLR 226).
  23. The menaces must have been of such a nature and extent that they might have influenced the mind of an ordinary person of normal stability and courage (R v Clear [1968] 1 QB 670).
  24. The question of whether the demand was made with menaces is an objective one. While the response of the victim is relevant, it is not determinative (R v Rasmussen (1928) 28 SR (NSW) 349; Benasic and Malavetas v R (1987) 77 ALR 340; R v Harry [1974] Crim LR 32).
  25. The word “menaces” should be interpreted liberally and is not limited to threats of violence. It includes threats of any unpleasant or detrimental action (Thorne v Motor Trade Association [1937] AC 797; R v Tomlinson [1895] 1 QB 706; Director of Public Prosecutions v Kuo (1999) 49 NSWLR 226; R v Boyle [1914] 3 KB 339; R v Collister (1955) 39 Cr App R 100).
  26. The following have been held to be “menaces”:
    1. Threats to steal property (Director of Public Prosecutions v Kuo (1999) 49 NSWLR 226);
    2. Threats to damage a corporation’s share price by revealing damaging information (R v Boyle [1914] 3 KB 339);
    3. Threats to injure a third person (R v Collister (1955) 39 Cr App R 100);
    4. Threats to accuse a person of a crime or non-criminal misconduct, or to withhold evidence in a legal proceeding (R v Tomlinson [1895] 1 QB 706; R v Clear [1968] 1 QB 670; R v Jessen [1997] 2 Qd R 213).
  27. A demand may be made with menaces even though there were circumstances unknown to the accused that rendered the threat ineffective (R v Clear [1968] 1 QB 670).
  28. A threat may be a “menace” even if the action threatened is legal (e.g., a threat to reveal criminal conduct to the police) (Thorne v Motor Trade Association [1937] AC 797; R v Alexander (2005) 206 CCC (3d) 233);
  29. A false statement that a third party will harm the accused if the victim fails to comply with the demand may be a “menace”. It does not matter that it is the accused him or herself that is being (falsely) “threatened” (R v Lambert [2010] 1 Cr App R 21).
  30. Behaviour or words which would not intimidate any person into complying with the demand are not “menaces” (Benasic & Malavetas v R (1987) 77 ALR 340; R v Clear [1968] 1 QB 670; R v Boyle [1914] 3 KB 339; R v Harry [1974] Crim LR 32).
  31. Judicial guidance may be required if the victim was not intimidated by the threat, but an ordinary person might have been. In such circumstances, the judge should explain that this element will be met if the threat may have caused a person of ordinary firmness of mind to comply with the demand (see R v Garwood [1987] 1 WLR 319; R v Clear [1968] 1 QB 670; R v Lawrence (1973) 57 Cr App R 64; R v Tomlinson [1895] 1 QB 706; Benasic and Malavetas v R (1987) 77 ALR 340; R v Rasmussen (1928) 28 SR (NSW) 349; R v Clear [1968] 1 QB 670; R v Walton (1863) 9 Cox CC 268).
  32. Guidance may also be required where the victim is especially timid and was overawed by the threat, even though an ordinary person would not have been. In such cases the judge should explain that the element will be met if the accused was aware that his or her actions were likely to affect the victim in that way (see R v Garwood [1987] 1 WLR 319; R v Lawrence (1973) 57 Cr App R 64; R v Tomlinson [1895] 1 QB 706; Benasic and Malavetas v R (1987) 77 ALR 340; R v Rasmussen (1928) 28 SR (NSW) 349; R v Clear [1968] 1 QB 670; R v Walton (1863) 9 Cox CC 268).

    Intention

  33. The fourth element the prosecution must prove is that the accused intended that the recipient of the demand would fear that the threat would be carried out, so as to cause him or her to comply with the demand (see R v Dixon-Jenkins (1985) 14 A Crim R 372).

    The Demand was Unwarranted

  34. The fifth element the prosecution must prove is that the demand was unwarranted (Crimes Act 1958 s87(1)).
  35. A demand is unwarranted unless, at the relevant time, the accused believed that:
    1. He or she had reasonable grounds for making the demand; and
    2. The use of menaces was a proper means of reinforcing the demand (Crimes Act 1958 s87(1)(a) and (b)).
  36. The accused carries an evidentiary onus to establish that a demand was not unwarranted.
  37. Whether a demand is unwarranted depends purely on the subjective state of mind of the accused at the time the demand was made. It is not sufficient for the prosecution to prove that the accused lacked objectively reasonable grounds for making the demand, or that the use of menaces was objectively improper (R v Lambert [1972] Crim LR 422; R v Harvey (1981) 72 Cr App R 139; Murdoch v R [2012] VSCA 7)).
  38. However, the belief of a reasonable person may be relevant if it sheds light on what the accused actually believed (R v Lambert [1972] Crim LR 422; R v Harvey (1981) 72 Cr App R 139; Murdoch v R [2012] VSCA 7).
  39. The word “proper” has a wide meaning. It means morally or socially acceptable (Criminal Law Revision Committee, Eighth Report: Theft and Related Offences (Cmnd 2977). See also R v Harvey (1981) 72 Cr App R 139).
  40. If the accused knew or suspected that the threat (or the act threatened) was unlawful, he or she cannot have believed that his or her actions were “proper". This will be the case even if the accused believed his or her actions to be justified in the circumstances (R v Harvey (1981) 72 Cr App R 139).
  41. However, even if the threatened action is clearly unlawful, the prosecution must prove that the accused did not believe that action was a lawful means of reinforcing the demand (R v Harvey (1981) 72 Cr App R 139).
  42. Consequently, the judge must not tell the jury that this element is proven if they find that the accused threatened an unlawful act. The jury must focus on the accused’s mental state, not the nature of the act threatened (R v Harvey (1981) 72 Cr App R 139).
  43. The judge may, however, comment on the unlikelihood of the accused believing that a serious offence (e.g., murder or rape) is lawful (R v Harvey (1981) 72 Cr App R 139).
  44. It is not necessary to give a detailed direction about this element where the only issue in the case is whether the demand was made (and the accused accepts that if the demand was made, it was unwarranted) (R v Lawrence (1973) 57 Cr App R 64; R v Harvey (1981) 72 Cr App R 139).

    Notes

[1] - Although there is no requirement that the demand be for money or property, the second element requires the demand to have been made with a view to gain money or property, or with an intention to cause its loss: see below.

[2] - It is unlikely that a person can be charged with attempted blackmail, as the demand is either made or it is not made (see Austin v The Queen (1989) 166 CLR 669; R v Moran (1952) 36 Cr App R 10). However, some authors have suggested that an attempted demand may arise where the accused is interrupted while making the demand, such as by being stopped while attempting to post a letter.

[3] - While the Criminal Law Revision Committee agree that “menaces” and “threats” have very similar meanings, they suggest that the word “menaces” is stronger than “threats”, and so slightly restricts the scope of the offence: Eighth Report: Theft and Related Offences (Cmnd 2977), p60.

Last updated: 14 December 2012

In This Section

7.5.15.1 - Charge: Blackmail

7.5.15.2 - Checklist: Blackmail

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.4 - Burglary

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.14 - Making or Using a False Document

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire