What Constitutes the Offence of Blackmail?

In 2011, one HSC student made headlines because an intruder into her family hope had strapped a device she was told was a bomb strapped to her neck in an attempt to blackmail her wealthy parents for money.

The man was eventually caught, charged and jailed.

But although the circumstances suggested blackmail, that was not the offence charged in that particular case.

Incidents of blackmail are historically prevalent and continue to be so today, although it most cases probably go unreported.

Blackmail is defined in the NSW Crimes Act as making unfair or dishonest demands with threats to gain something; cause a loss or influence the exercise of a public duty.

It is this threat or menace which is an offence, regardless of whether or not the victim complied.

A similar offence exists in section 99 of the Crimes Act – demanding property with intent to steal.

A threat is defined as something that would make a person act unwillingly because it was made.

Blackmail is punishable with a maximum of ten years imprisonment, but the maximum penalty is more severe if the crime involves threatening to accuse another person with committing a serious offence.

While blackmail might be similar to robbery where a victim is forced to part with their property due to coercion, a blackmailer will usually give their victim time to pay or to otherwise comply with the demands made.

Technology can be used to perpetuate many crimes, blackmail included.

Sharing too much online can be dangerous, and many who make this mistake fall prey to blackmailers.

It has certainly been profitable for some scammers, with reports that over 20,000 Australians have received ransom demands.

Ransomware is a virus that may be sent in innocuous-looking emails that take your computer hostage, freezing all your files until you pay the ransom money.

It can access personal photos and messages, and demand money in order to keep your private files from being released.

Victims are advised not to comply with the requests of blackmailers, although complying is not an offence itself, unless the specific nature of conduct required by the blackmail is an offence.

But giving in to such demands acts as an indicator that blackmailing works and may end up perpetuating the incidence of the crime.

If a blackmail victim breaks the law because of the threat made to them, do they face full criminal responsibility?

If, on the other hand, a person breaks the law because they were being blackmailed, the defence of duress may be available in certain limited circumstances.

When a person acts in a specific way because they were being threatened or coerced, this can be sometimes be used as a defence.

Duress is limited to a present or immediate threat that was made just before the offence was committed.

It cannot apply if a threat was due to be carried out at a much later time and will only be able to acquit a defendant of a crime if the duress was such that it overbears the will of the individual to the extent that it could no longer be said a person was acting voluntarily.

In one case, two girls who witnessed a fight were threatened by the accused, who said that if they identified the men in court, they would be cut up.

When the girls were charged with perjury, the court held that the defence of duress did not apply.

The girls were not in immediate danger when they testified in court, and the court ruled that if you have had enough time to think about committing a crime, it will not have been committed under duress.

Under these circumstances, it is clear that the circumstances in which a person who is blackmailed into committing an offence can use the defence of duress will be narrow.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney's leading firm of criminal and traffic defence lawyers.
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