R v Barrett (No. 4)

1. [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:

Proposed Written Directions for Jury Concerning Elements of Offence

1. [2]

   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. [3]

   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. [4]

   Subject to one area, the parties agreed with the content of the elements document which became MFI 15.

4. [5]

   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. [6]

   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. [7]

   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. [8]

   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. [9]

   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):

2. [10]

   This judgment contains my more detailed reasons for this ruling.

The Offence of Blackmail

1. [11]

   Sections 249K-249O were inserted in the Crimes Act 1900 (NSW) by the Crimes Amendment Act 2007 (NSW). Those provisions state:

2. [12]

   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.

3. [13]

   The focus of attention in Petch v R (at [46]-[52]) was the mental element for offences under s.249K.

4. [14]

   Hamill J said at [46]:

5. [15]

   It is the first intention which is relevant to the present trial – an intention of obtaining a gain.

6. [16]

   In Petch v R, Hamill J said at [49]:

7. [17]

   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):

8. [18]

   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.

9. [19]

   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.

10. [20]

    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.

11. [21]

    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.

12. [22]

    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.

13. [23]

    Nor was there any requirement to particularise in the indictment any alleged amount of the gain.

14. [24]

    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).

15. [25]

    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.