It is a situation that can happen in almost any context: a divorce, a broken friendship, and often in a commercial setting. Extortion, which is the legal term for blackmail, is primarily dealt with under section 99 of the Crimes Act 1900.

What is blackmail?

If you threaten someone by suggesting you will do something damaging to their reputation or otherwise (like physical harm) unless they cede to your demands, this will typically constitute blackmail. You may be demanding money, property, or something less physical. Whatever the case, a demand followed by a threat will usually equate to blackmail.

Was there a demand?

The demand can be express, i.e. obvious and overt, or it can be subtle and implied by conduct.

To prove that there was a demand, the onus of proof is ‘beyond reasonable doubt’. If it cannot be shown/proved that any demand was made, this will be the end of the matter and a “not guilty” verdict will mean that the accused is acquitted. To be acquitted is to be released of the charges and to have the charges dropped.

Was there a threat or force?

If, however, the Crown does find that there was a demand, they will continue to try and prove the second element of the offence, which is proving that the demand was accompanied by a threat or force. The Crown will ask the following questions:

  • What was the threat or force?
  • Was it being made against the victim?
  • What words or conduct occurred?
  • Did those words/conduct amount to a threat?

These questions are asked from an objective point of view. That means that a court would need to consider whether or not a person of ‘reasonable firmness and courage’ would have considered the conduct (threat/force) to be threatening enough to respond in a way that is contrary to his or her wishes. In other words, what would a regular person do in that situation? How would they react?

Did they intend to steal?

Once the second element has been proven, the Crown will need to prove the third, which is essentially the mens rea or ‘guilty mind’ aspect of the offence. Did the person have the intention to permanently deprive you of your property/money? It needs to be shown that the accused knew that the property did not belong to him or her and that he or she acted with a guilty state of mind.

Please note that LegalVision is a commercial law firm and cannot assist with these matters.

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Lachlan McKnight

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