7.4.10.1: Bench Notes: Extortion with Threat to Kill, Injure Or Endanger Life 1

7.4.10: Extortion

7.4.10.1: Bench Notes: Extortion with Threat to Kill, Injure or Endanger Life[1]

Elements

1.  Extortion with threat to kill, injure or endanger life is an offence under Crimes Act 1958 s27.[2]

2.  The offence has the following three elements:

i)  The accused made a demand.

ii)  The demand was accompanied by a threat to:

a)  Kill or injure a person other than the accused or an accomplice of the accused; or

b)  Commit an act which would endanger the life of a person other than the accused or an accomplice of the accused.

iii)  The accused intended the recipient of the threat to fear that the threat would be carried out unless the recipient complied with the demand.

Making a Demand

3.  The first element the prosecution must prove is that the accused made a demand of the victim (Crimes Act 1958 s27).

4.  The nature of the demand is immaterial. Unlike the offence of blackmail# the demand does not need to be made with a view to gain or an intent to cause a loss (compare Crimes Act 1958 s87).

5.  The demand may be implicit or explicit (R v Clear [1968] 1 QB 670; R v Collister (1955) 39 Cr App R 100; R v Lambert [2010] 1 Cr App R 21; R v Akhmatov [2004] EWCA Crim 1004; R v Studer (1915) 11 Cr App R 307; R v Jessen [1997] 2 Qd R 213).

6.  It is for the jury to determine whether, in all the circumstances of the case, there was a demand. The test is whether a reasonable person would have understood that a demand was being made (R v Collister (1955) 39 Cr App R 100).

7.  In determining this issue, the jury should consider matters such as the accused’s demeanour and the circumstances that existed at the time of the alleged demand (R v Collister (1955) 39 Cr App R 100).

8.  A statement phrased as a request may, in some cases, constitute a demand, such as where it is backed up by a threat (R v Clear [1968] 1 QB 670; R v Collister (1955) 39 Cr App R 100; R v Lambert [2010] 1 Cr App R 21; R v Akhmatov [2004] EWCA Crim 1004; R v Studer (1915) 11 Cr App R 307; R v Jessen [1997] 2 Qd R 213).

9.  While the demand must have been made in circumstances in which it was apt to reach the intended recipient, it does not need to have been successfully communicated to the intended recipient (Austin v The Queen (1989) 166 CLR 669; Treacy v DPP [1971] AC 537; Bank of Valletta PLC v NCA [1999] FCA 791).[3]

10.  Principles of agency should not be used when analysing or explaining the process of making a demand (Latorre v R [2012] VSCA 280). If the prosecution argues that the accused committed the offence in conjunction with another person, the judge should explain the principles of complicity or the doctrine of innocent agency.

11.  Where a person is able to recall or rescind a demand before it is received by the recipient, it may not be appropriate to find that the demand has been made. This may occur, for example, when the person uses a courier to deliver a letter and retains control over whether the courier completes the process (see Austin v The Queen (1989) 166 CLR 669; Treacy v DPP [1971] AC 537).

Threat to Kill, Injure or Endanger Life

12.  The second element the prosecution must prove is that the demand was accompanied by a threat to:

·  Kill or injure a person other than the accused or an accomplice of the accused; or

·  Commit an act which would endanger the life of a person other than the accused or an accomplice of the accused (Crimes Act 1958 s27).

13.  In the latter case, the conduct threatened must be such that it would endanger a person’s life. It is not sufficient that the conduct threatened would risk causing injury. See Bench Notes: Conduct Endangering Life# for information about when the life of a person is endangered.

How Can a Threat be Made?

14.  A threat can be made by words or conduct or both (R v Rich Vic CA 17/12/1997).

15.  A threat can be made in writing and delivered or left with another person. The threat does not have to be received at the same time that it is made (R v Jones (1851) 5 Cox CC 226).

16.  It is not necessary for the prosecution or the judge to identify the precise words or conduct that constituted the threat. Where the accused acted in a continuously threatening and abusive manner, the jury may consider whether his or her conduct as a whole amounted to a threat (R v Rich CA Vic 17/12/1997).

17.  In determining whether there has been a “threat”, the jury must consider the relationship between the accused and the recipient. Violent or colourful language that may appear threatening at first sight, may in fact not be a “threat” when the relationship is taken into account. For example, in the context of the parties’ relationship, it may be clear that the accused did not intend to move beyond heated words and gestures (Barbaro v Quilty [1999] ACTSC 119).

Nature of the Threat

18.  The recipient of the demand need not be the person threatened. The accused may have threatened to harm or endanger any person other than the accused or an accomplice of the accused (Crimes Act 1958 s27; R v Dixon-Jenkins (1985) 14 A Crim R 372).

19.  It is not necessary that the recipient of the threat have any particular relationship with the person threatened. This element will be satisfied even if the accused threatens to harm someone that the recipient does not know (R v Solanke [1970] 1 WLR 1; R v Syme (1911) 6 Cr App R 257).

20.  It is also not necessary that the subject of the threat be a specific person, or that the accused had made arrangements to carry out the threat (R v Chapple, VSCFC, 11/11/1980).

21.  The accused does not need to state that he or she personally intends to execute the threat. The accused may threaten to have someone else kill, injure or endanger a person’s life (Barbaro v Quilty [1999] ACTSC 119).

22.  A threat can be conditional on the occurrence of a future event. It is not necessary that the accused have the immediate capacity or intention to carry out the threat (R v Leece (1995) 125 ACTR 1; Barbaro v Quilty [1999] ACTSC 119).

Impact of the Threat

23.  It not necessary for the prosecution to prove that the complainant feared that the threat would be carried out, nor is it sufficient for the prosecution to prove that the complainant did feel such fear (R v Leece (1995) 125 ACTR 1; R v Rich Vic CA 17/12/1997; R v Alexander [2007] VSCA 178).

Intention

24.  The prosecution must prove that the accused intended the recipient of the threat to fear that the threat would be carried out (R v Dixon-Jenkins (1985) 14 A Crim R 372).

25.  The prosecution does not need to prove that the accused intended to carry out the threat (R v Dixon-Jenkins (1985) 14 A Crim R 372).

2

[1] This document was last updated on 14 December 2012.

[2] Although the heading to s27 is “Extortion with threat to kill”, the offence covers threats to inflict injury or endanger life. We have chosen to use the broader heading “Extortion with threat to kill, injure or endanger life” to reflect this fact.

[3] It is unlikely that a person can be charged with attempted extortion, as the demand is either made or it is not made (see Austin v The Queen (1989) 166 CLR 669; R v Moran (1952) 36 Cr App R 10). However, some authors have suggested that an attempted demand may arise where the accused is interrupted while making the demand, such as by being stopped while attempting to post a letter.