R v Barrett (No. 4) - [2021] NSWSC 365

Supreme Court

New South Wales

Amendment notes

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

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

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).
The Court settled the elements document in a form which was provided to the jury before the Crown opening address (MFI 15; T83-87).
Subject to one area, the parties agreed with the content of the elements document which became MFI 15.
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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barrett (No. 4)

Details

AGLC: R v Barrett (No. 4) [2021] NSWSC 365
Case: [2021] NSWSC 365
Decision Date: 08 April 2021

CaseChat Overview and Summary

In the case before the court, the respondent, Barrett, was charged with blackmail under section 249K(1)(a) and (2) of the Crimes Act 1900. The alleged offence involved making an unwarranted demand with menaces with the intent to obtain a gain by accusation or threatened accusation. The dispute centred on the essential elements of the blackmail offence, specifically whether it was necessary for the accused to know the exact amount of gain they sought at the time the demand was made.

The court was tasked with determining the components of the blackmail offence as outlined in section 249K(1)(a) and (2). A key issue was whether the accused needed to be aware of the specific amount of gain they were seeking when making the demand. This was crucial in understanding the mens rea required for the offence of blackmail under the relevant provisions of the Crimes Act.

In examining the statutory language and relevant legal precedents, the court concluded that the offence of blackmail did not require the accused to know the exact amount of gain at the time of making the demand. The court held that the intent to obtain a gain by accusation or threatened accusation was sufficient, without the necessity of knowing the precise amount of that gain. This interpretation aligned with the broader objective of the provision, which is to prevent the misuse of threats for personal gain, regardless of the specific amount sought.

The court's decision clarified the elements of the blackmail offence, relieving the prosecution of the burden of proving the accused's knowledge of the exact gain at the time of the demand. The court's ruling had significant implications for future cases involving charges of blackmail under section 249K of the Crimes Act.

Orders