Blackmail – Not so Black and White

Building on our discussion about fraud, we examine the components of Blackmail (sometimes known as extortion) and assess possible defences to the charge.

The Blackmail Offence in Focus

‘Blackmail’ is where a person makes an unwarranted, menacing demand on another person with the intent to either make a gain or cause loss to another.[1] The term ‘menacing’ has the same meaning as ‘threatening’.[2] A menacing demand is considered to be ‘unwarranted’ unless there was a reasonable justification for making the demand or the use of menace is used to reinforce a reasonable demand. However, the menace/threat must be capable of having influence over the actions of another ordinary person.[3]

An example could be where a person attempts to force another to give them $10,000 by threatening to tell a romantic partner they are cheating (threat to release damaging information).[4] Threatening to steal a car or cause damage to it unless they perform a specific task can also be considered to be Blackmail.[5]

Elements of Blackmail

The Prosecution must prove each of the following elements beyond ‘reasonable doubt’ to establish a Blackmail offence:

1. You made a demand to another;
2. You had an intention to gain something for yourself (or a third party) or cause loss to another;
3. The demand was menacing;
4. You intended that the person have a real fear that the threat would be carried out if they did not comply with the demand;
5. The demand was unwarranted.[6]

In addition, it is essential that the Prosecution prove that the demand was ‘unwarranted’. This means that there was not a reasonable justification, or the use of menace was not used to reinforce a proper demand.

However, Blackmail differs from other theft offences, as it also covers the temporary depravation of property and does not require an intent to permanently deprive.[7]

Penalties

The maximum penalty for a Blackmail offence is 15 years imprisonment.[8]

Blackmail Defences Available

It is a defence to a charge of Blackmail to argue that you had reasonable grounds to make the demand and that it was a reasonable threat used to enforce the demand. For example, demanding the return of an item that belongs to you is not Blackmail (e.g. “Return my bike or I will go to the Police!”) will not constitute Blackmail. However, threatening to allege that another stole your bike unless they pay you $500 could be considered to be Blackmail.

You can also argue that the use of menace was a proper means to reinforce the demand. “Proper” generally is taken to mean socially or morally acceptable.[9] The onus is on the Prosecution to prove that you knew that the threat was not a lawful way of enforcing the demand.[10] Therefore, it is your state of mind that is relevant when establishing whether the threat was ‘unwarranted’.

However, it is not a defence to suggest the alleged victim was not threatened by the menace, as the test is whether an ordinary person would be intimidated by the threat used.[11]

You may also have a defence of reasonable mistake or a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Crimes Act 1958 (Vic) s 87.
[2] R v Clear [1968] 1 QB 670.
[3] R v Clear [1968] 1 QB 670.
[4] R v Boyle [1914] 3 KB 339.
[5] Director of Public Prosecutions v Kuo (1999) 49 NSWLR 226.
[6] Crimes Act 1958 (Vic) s 87(1).
[7] Crimes Act 1958 (Vic) s 71.
[8] Crimes Act 1958 (Vic) s 87(3).
[9] R v Harvey (1981) 72 Cr App R 139.
[10] R v Harvey (1981) 72 Cr App R 139.
[11] R v Garwood [1987] 1 WLR 319.