Criminal Law

What is blackmail?

Published in: January 2018

Blackmail as an offence is treated seriously and anyone found guilty of the crime, may face severe punishment. For a person to be found guilty of blackmail, a number of elements must be present that this piece will explore.

The definition

Using s 87 of the Crimes Act (VIC) as our example, a person is guilty of blackmail if, with a view to gain for themself or another or with intent to cause loss to another, they make any unwarranted demand with menaces. For the purposes of the section, menaces is unwarranted unless the person making it does so in the belief that:

  • they had reasonable grounds for making the demand; and
  • the use of the menaces is a proper means of reinforcing the demand.

Further context related to the offence can be found in Austin v The Queen (1989) CLR 669; 85 ALR 353; 40 A Crim R 355, where the court said (at 675; 356; 358):

“It is the behaviour of the offender in making a demand with menaces or threats which is the gist of the offence and not action or events over which the offender may have no control... Thus it is appropriate to regard the offence of demanding money with menaces or threats or complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent. It is inappropriate to regard actual communication as a necessary part of the offence.”

What is meant by menace?

Menace, as Lord Wright in Thorne v Motor Trade Association [1937] AC 797; 3 All ER 157; 26 Cr App R 51 (HL) explained (at 817; 167; 67):

“I think the word “menace” is to be liberally construed and not as limited to threats of violence but as including threats or any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended.”

What is meant by demand?

In Austin v The Queen (1989) 166 CLR 669; 85 ALR 353; 40 A Crim R 355, the High Court said (at 674; 355 – 356; 357 – 358):

“Whilst it is clear that there can be more than one view of the meaning of the words “demand”... of any person” it is, we think, in accordance with the ordinary usage of language to regard a demand as having been made at a point short of its actual communication to the person to whom it is directed. To do is neither to conceive of the demand in an abstract form nor to use the word proleptically. Of course, a requirement, however peremptory, cannot amount to a demand unless it is made with the intention that it should be conveyed or communicated to the person to whom it is directed and in circumstances which are apt to achieve that end. A message put to sea in a bottle or a request shouted to the four winds cannot, except in the most extraordinary circumstances, amount to a demand of any person. On the other hand, a demand advertised in a newspaper may, even in the absence of actual communication, amount to a demand made of a person if the advertisement is an apt means of bringing the demand to the attention of that person.

One final thing that should be pointed out is that generally speaking, legislation may make a distinction between oral and written demands.


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