NSW Questions Re: Crimes Act, Sec. 249k(1)(a) - Demand with menaces intend obtain gain/cause loss-T1

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Thomas L

Active Member
3 April 2019
9
0
31
Sydney, NSW
The below is from an NSW Local Court criminal proceeding commencing in September 2017 and concluding in August 2018.

Background: An unrelated civil matter resulted in an exchange of correspondence between the defendant (civil) and the plaintiff's former employer. A lawyer representing the plaintiff's former employer threatened the defendant (civil) with aggressive legal action to force the removal of sensitive documents from a public forum. In an emotionally charged reaction to the threat of legal action, the defendant (civil) responded with an email negotiating payment for damages and documents to assist in the unrelated civil matter. In the email (paraphrasing), the defendant (civil) stated that acceptance of the offer would result in the removal of sensitive material from the web and destroy any hard copies. However, within 12 hours, the defendant (civil) sent another email to the lawyer representing the plaintiff's employer to withdraw the offer. The defendant (civil) had removed the sensitive documents from the web and agreed to destroy any hard copies. The defendant (civil) ignored all communication attempts from the lawyer representing the plaintiff's former employer.

6 days later, NSW Police raided the home of the defendant (civil) and the offender was charged with the following offence.
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Details of Offence/s

Crimes Act 1900, Section 249k(1)(a) Law Part Code 63658 - T1

Demand with menaces intend obtaining a gain or causing a loss
at 4:05 pm on [REDACTED] at [REDACTED].
did with menaces being the treat to disseminate sensitive documents belonging to the [REDACTED] company [REDACTED] Australia, demand money, to wit, $400,000 and also demand that [REDACTED], company affiliated with [REDACTED], file a claim against Mr [REDACTED] for fraud, and demanded a copy of [REDACTED] employment records pertaining to a Mr [REDACTED] with intent to steal the said money and documents.
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NSW Police held the offender for 8 hours before being released on bail with no conditions. Lawyers representing the defendant (criminal) entered a plea of not guilty on the first court date.

Lawyers representing the defendant (criminal) requested NSW Police to formally identify the victim as the threat/demand was with a lawyer for the organisation and not someone within the organisation. The case against the defendant (criminal) was ambiguous and vague. NSW Police would not respond and required a court subpoena to state the victim was a body corporate.

NSW Police presented 2 witnesses at the hearing.

Witness 1 was the director of a subsidiary of the organisation and confirmed the documents posted by the defendant (criminal) were legitimate and gave a testimonial about the nature of the business. This witness was unable to provide any more information and stated everything else was above their pay grade.

Witness 2 was the lawyer that had the email exchange with the defendant (criminal). The witness gave testimony that the organisation never intended to do anything about the demand and stated they contacted police only to have the sensitive documents seized and returned. When asked about damages incurred, the witness claimed the organisation had to pay $4,000 in legal fees for services related to the criminal proceeding.

The defendant (criminal) did not give testimony at the hearing.

The lawyer representing the defendant (criminal) argued to the court that NSW Police was not able to prove that the threat/demand resulted in an "unwilling response" from the victim. The Magistrate asked for case law precedent from the parties to answer the question about what defines an "unwilling response" in the context of this alleged crime. NSW Police was unable to provide any precedent. The lawyers representing the defendant (criminal) could only find case law from the United Kingdom from the 1800s.

In closing arguments, NSW Police asked the Magistrate to make a statutory construction of the phrase "unwilling response" in the definition of the word "menaces". The lawyers representing the defendant (criminal), argued that giving a broad definition could have unforeseen consequences and wide application.

The Magistrate agreed with NSW Police and ruled that anything and everything is considered an act of "unwilling response", regardless if the response was or was not involved with the threat/demand.

The Magistrate found the defendant (criminal) guilty and sentenced the offender to 200 hours of community services, $5,000.00 fine and to pay the victim levy.

The lawyers advised the defendant (criminal) to appeal the matter to the Supreme Court of New South Wales for determination according to law. The defendant (criminal) declined.
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Q1. Should the defendant have appealed to the Supreme Court?

Q2. Is it normal for a Magistrate to impose a fine and community service order?

Q3. Can the defendant still appeal when the matter was determined 8 months ago?

Q4. Any recommendations?