Supreme Court New South Wales Medium Neutral Citation: R v Barrett (No. 4) [2021] NSWSC 365 Hearing dates: 8 April 2021 Date of orders: 8 April 2021 Decision date: 08 April 2021 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: The defence application to give directions to the jury based upon an asserted fifth element for the offence under s.249K(1)(a) and (2) Crimes Act 1900 is declined. Catchwords: CRIME – charge of blackmail under s.249K(1)(a) and (2) Crimes Act 1900 – making unwarranted demand with menaces with intent to obtain a gain by accusation or threatened accusation – elements of offence – whether element of offence that accused knew amount of gain alleged at time when demand made – held no such element of s.249K(1)(a) and (2) offence Legislation Cited: Crimes Act 1900 (NSW) Crimes Amendment Act 2007 (NSW) Cases Cited: Petch v R (2020) 103 NSWLR 1; [2020] NSWCCA 133 Texts Cited: Report of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3, Theft, Fraud, Bribery and Related Offences, December 1995 Category: Procedural rulings Parties: Regina (Crown) Stephen John Barrett (Accused) Representation: Counsel: Ms T McDonald SC; Ms L Robb Vujcic (Crown) Mr C Steirn SC (Accused) Solicitors: Commonwealth Director of Public Prosecutions (Crown) O'Brien Lawyers (Accused) File Number(s): 2018/216184 Publication restriction: --- Judgment 1. JOHNSON J: The Accused, Stephen John Barrett, is standing trial before a jury for an offence of blackmail contrary to s.249K(1)(a) and (2) Crimes Act 1900 (NSW) charged in the following terms: "On or about 1 February 2017 at Sydney in the State of New South Wales, [the Accused] did make an unwarranted demand with menaces, with intent to obtain a gain by an accusation or a threatened accusation, that Adam Cranston, Jason Onley and Dev Menon had committed serious indictable offences, namely Fraud and Money Laundering." Proposed Written Directions for Jury Concerning Elements of Offence 1. Before the commencement of the trial on 6 April 2021, the Court raised with counsel the prospect of a written direction being provided to the jury prior to the Crown opening which explained, in introductory terms, the elements of an offence under s.249K. To progress this aspect, the Court prepared a draft elements document (MFI 4) and emails were provided by the Crown and senior counsel for the Accused proposing amendments to the Court's draft (MFI 5-MFI 6, MFI 9-MFI 14). 2. The Court settled the elements document in a form which was provided to the jury before the Crown opening address (MFI 15; T83-87). 3. Subject to one area, the parties agreed with the content of the elements document which became MFI 15. 4. In determining to provide this document to the jury at an early point in the trial, I had regard to the terms of s.249K and the various definitions contained in ss.249L-249N Crimes Act 1900 (NSW). The definition of "public duty" in s.249O was not relevant to the circumstances of the present trial. The Area of Controversy 1. The one area of controversy arose from a defence application to direct the jury that there was a fifth element of a s.249K offence to the effect that the amount of the gain alleged was known to the Accused at the time the demand was made (MFI 10). The Crown provided a written submission which argued that there was no such element of a s.249K offence (MFI 11). 2. The origin of the defence application with respect to the asserted fifth element appears to be a response to a request for particulars from the Crown (part MFI 5) (see [22] below). 3. On the morning of 8 April 2021, before the Crown opening address to the jury, Mr Steirn SC pressed the application that there was a fifth element to the offence, but informed the Court that he did not wish to make further submissions in support of the application that the jury should be so directed (T61). The Ruling on 8 April 2021 1. Having considered the issue raised and the submissions of the parties, I gave a short ruling in which I rejected the defence application (T61-62): "HIS HONOUR: In the course of submissions made in the last 24 hours and the draft elements documents which have been exchanged, it was submitted by Senior Counsel for the accused that there was in fact a fifth element for the blackmail offence charged against the accused. The Crown, in a submission, dated 7 April 2021, (MFI 11) submitted that there was no such element to be found on a proper construction of s 249K of the Crimes Act 1900. I am satisfied that there are four elements with respect to this alleged offence. The fifth element proposed by the accused, as contained in MFI 10, is not in my view an element of the offence. Put shortly, I accept the submissions made by the Crown which are to be found in MFI 11. I will give more detailed reasons with respect to this ruling at a later time, but for present purposes, that is the ruling I make with respect to the document to be provided to the jury." 1. This judgment contains my more detailed reasons for this ruling. The Offence of Blackmail 1. Sections 249K-249O were inserted in the Crimes Act 1900 (NSW) by the Crimes Amendment Act 2007 (NSW). Those provisions state: "249K Blackmail offence (1) A person who makes any unwarranted demand with menaces - (a) with the intention of obtaining a gain or of causing a loss, or (b) with the intention of influencing the exercise of a public duty, is guilty of an offence. Maximum penalty - Imprisonment for 10 years. (2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) by an accusation, or a threatened accusation, that a person has committed a serious indictable offence. Maximum penalty—Imprisonment for 14 years. 249L Unwarranted demands - meaning (1) For the purposes of this Part, a demand with menaces is unwarranted unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand. (2) The demand need not be a demand for money or other property. 249M Menaces - meaning (1) For the purposes of this Part, menaces includes - (a) an express or implied threat of any action detrimental or unpleasant to another person, and (b) a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office. (2) A threat against an individual does not constitute a menace unless - (a) the threat would cause an individual of normal stability and courage to act unwillingly in response to the threat, or (b) the threat would cause the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat. (3) A threat against a Government or body corporate does not constitute a menace unless - (a) the threat would ordinarily cause an unwilling response, or (b) the threat would cause an unwilling response because of a particular vulnerability of which the person making the threat is aware. (4) It is immaterial whether the menaces relate to action to be taken by the person making the demand. 249N Obtaining gain or causing loss - meaning For the purposes of this Part - (a) a gain means gain in money or other property, whether temporary or permanent, and includes keeping what one has, and obtaining a gain means obtaining a gain for oneself or for another, and (b) a loss means loss in money or other property, whether temporary or permanent, and includes not getting what one might get, and causing a loss means causing a loss to another. 249O Public duty - meaning For the purposes of this Part, a public duty means a power, authority, duty or function - (a) that is conferred on a person as the holder of a public office, or (b) that a person holds himself or herself out as having as the holder of a public office." 1. The proper construction of these provisions was considered by the Court of Criminal Appeal in Petch v R (2020) 103 NSWLR 1; [2020] NSWCCA 133. As Hamill J (Hoeben CJ at CL agreeing) observed at [43], the amendments incorporating ss.249K-249O were introduced by the Crimes Amendment Act 2007 (NSW), and were based on Division 18 of the Model Criminal Code as considered in the Report of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3, Theft, Fraud, Bribery and Related Offences, December 1995. 2. The focus of attention in Petch v R (at [46]-[52]) was the mental element for offences under s.249K. 3. Hamill J said at [46]: "Section 249K itself provides two alternative intentions that must accompany the 'unwarranted demand with menaces'. These are (a) an intention of obtaining a gain or causing a loss or (b) an intention of influencing the exercise of a public duty. It was the second of these that was relevant in the present case and the trial Judge provided a clear direction in 'Element 3' that the prosecution was required to prove 'the demand was made with the intention of influencing the exercise of a public duty'." 1. It is the first intention which is relevant to the present trial – an intention of obtaining a gain. 2. In Petch v R, Hamill J said at [49]: "To be clear, in cases prosecuted under s 249K, the jury must be directed in some clear form that the offence is only established if it is proved beyond reasonable doubt that the accused person intended to make an unwarranted demand with menaces and that requires (amongst other things) proof that he intended to make an express or implied threat. No particular form of words is required but it must be made clear, especially in the case of an implied threat, that the accused intended to make an unwarranted demand, intended the demand to be with menaces and that this involves an intention to make a threat." 1. In the circumstances of this case, I was satisfied that the following elements should be included in the written direction given to the jury concerning the elements of the s.249K offence in this case (MFI 15): "2. The Crown alleges that the Accused was party to a joint criminal enterprise with other persons (Daniel Hausman and Daniel Rostankovski) to commit the offence. The term 'joint criminal enterprise' is explained at paragraph 4 below. 3. The Crown must prove beyond reasonable doubt each of the following elements: (a) Element 1 - the accused or a party to the joint criminal enterprise ('JCE participant') made a demand; (b) Element 2 - the demand was unwarranted; (c) Element 3 - the demand was made with menaces. The menaces here are said to be an accusation or threatened accusation that a serious indictable offence (see paragraph 5 below) had been committed by a person; and (d) Element 4 - the demand was made with the intention to obtain a gain. ELEMENT 1: The Accused or a JCE participant made a demand • A demand may be explicit or implicit. • The Accused and JCE participant must have intended a demand be made. ELEMENT 2: The demand was unwarranted • A demand is unwarranted unless the accused and JCE participant believes that there are reasonable grounds for the making of the demand and he reasonably believes that the use of the menaces is a proper means of reinforcing the demand. • The demand need not be a demand for money or other property. ELEMENT 3: The demand was made with menaces • Menaces include an express or implied threat of any action detrimental or unpleasant to another person. • Menaces include an accusation or a threatened accusation that a person has committed a serious indictable offence. • A threat does not constitute a menace unless: o the threat would cause an individual of normal stability and courage to act unwillingly in response to the threat; or o the person making the threat is aware of the vulnerability of the particular individual to the threat and the threat would cause the particular individual to act unwillingly in response to the threat. • The Crown must prove that the Accused and JCE participant intended that an express or implied accusation or threatened accusation be made that a person had committed a serious indictable offence and intended that the person subject to that threat or accusation be caused to act unwillingly in response to the threat. ELEMENT 4: The demand was made with the intention to obtain a gain • A gain means a gain in money or other property, whether temporary or permanent, and includes keeping what one has. • Obtaining a gain means obtaining a gain for oneself or for another person." 1. The purported fifth element as advanced for the Accused does not, in fact, arise with respect to a s.249K offence. There is no requirement for the Crown to prove that the amount of the gain alleged was known to the Accused at the time the demand was made. 2. As s.249N makes clear, a "gain" means "a gain in money or other property, whether temporary or permanent". There is no requirement that the amount of the "gain" be quantified, let alone that the prosecution is required to prove, as an element of s.249K(1)(a) and (2) offence, that the accused person knew of the amount of the gain at the time when the demand was made. 3. The text of s.249K and other provisions, including s.249N (which relates to obtaining a gain), do not support the introduction of such an element for the offence. 4. It is to be kept in mind that Petch v R was concerned with the concept of "public duty" (as defined in s.249O) and not an alleged offence of making an unwarranted demand with menaces with the intention of obtaining a gain under s.249K(1)(a) and (2) as applies to the present case. Nevertheless, the general approach to construction of s.249K and the associated provisions in Petch v R, do not support the construction advanced for the Accused. Nor is anything to be found in the Report of the Model Criminal Code Officers Committee to support the existence of such a fault element for a blackmail offence. 5. Further, the Crown's response to a request for particulars does not operate to create an additional element of the s.249K offence, with this issue to be determined as a matter of statutory construction. In any event, the Crown was not requested to and did not particularise a specific gain as having been agreed to be demanded in its response dated 29 March 2021 (part MFI 5). The request made of the Crown, and the Crown's response, were directed to a different issue, being the amount of gain allegedly received after the fact. 6. Nor was there any requirement to particularise in the indictment any alleged amount of the gain. 7. I note that there was no dispute concerning the statement of the four elements as contained in the written direction to the jury in MFI 15 (see [17] above). 8. It was for these reasons that I declined, on 8 April 2021, the defence application based upon an asserted fifth element for the s.249K(1)(a) and (2) offence charged against the Accused. ********** Amendments 24 November 2023 - Publication restriction lifted. 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