Thursday, 11 June 2009

Two criminal offences in family law

Sometimes when negotiations break down, one party might say to the other something like : "if you don't give me what I want on property settlement, I am going to report you to Centrelink/the Tax Office because of your fraud" or "I won't report you to the police about your child sex activities if you give me what I want. I only want 50% and my super. After all, I am a reasonable person."

Now there is a fine line here between what is right, and what is a criminal act.

If a party during the course of proceedings, for example, alerts the other side to, for example tax fraud issues, and then says that as a matter of procedural fairness when the matter goes to trial that they will be making an application to refer the matter to the Attorney-General- that is proper, as it is a matter of procedural fairness. However any such alerts need to be very properly prepared so that criminal offences are not committed. This advice should always be in writing, and should never be sent on the fly, for the obvious reasons below.

To make the type of threat as quoted might constitute serious criminal acts, and land the party who commits it in jail. If it comes from a lawyer, it might lead to the lawyer being struck off and potentially also going to jail.

The two types of offences are:
  • extortion or blackmail
  • compounding a crime

I will focus on the Queensland criminal laws, as I am a Brisbane family lawyer.

Extortion

This is set out in section 415 of the Queensland Criminal Code. A conviction could lead to life imprisonment. The offence is defined thus:

(1) A person (the demander) who, without reasonable cause, makes a demand--
(a) with intent to--
(i) gain a benefit for any person (whether or not the demander); or
(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to any person other than the demander;
commits a crime.

In other words, to use words like those quoted above is with the intention of gaining a benefit (namely property settlement and/or significantly reduced legal costs on the property settlement) and causing a detriment to the person to whom the demand is made (ie being investigated/prosecuted/jailed/fined), would constitute the crime of extortion. As can be seen, the crime can be committed both by the client and their lawyer.

Compounding a crime

This offence is often forgotten. It is provided for in section 133 of the Queensland Criminal Code. Essentially intentional coverup of a crime might in turn be a crime in itself. The maximum punishment is up to 7 years. The offence is defined:

(1) Any person who asks for, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person, upon any agreement or understanding that the person will compound or conceal an indictable offence, or will abstain from, discontinue, or delay, a prosecution for an indictable offence, or will withhold any evidence thereof, is guilty of an indictable offence.

The quoted statements might also constitute compounding of crimes, ie those of tax or social security fraud, or various child sex abuse offences. Similarly, both a client and their lawyer could be charged with this offence.

There is no reason, aside from prosecutorial discretion, as to why a person could not be charged with both extortion and compounding a crime.

Get advice

Finally:

  • if you think that you might have committed these offences, get advice straight away;
  • if you have had this type of threat made to you, get advice straight away.

I cannot emphasise enough the need to get proper advice on these matters. Bullies should not be given in to, but what substance is there to the threat? What are the implications of giving in to the threat; aside from the obvious one that by agreeing to the bargain does not mean that you can hold the person to their word in not complaining to authorities later.

As a matter of public policy, if a serious offence has been committed against the government, a citizen ought to be able to advise the government of that, and it would be wrong to prevent people from doing so.

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