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Stalking


John Sutton

In the ACT it is an offence to stalk someone with the intent to cause apprehension or fear of harm, to stalk someone with the intent to actually cause harm, or to stalk someone with the intent to harass them. The maximum penalty for this offence is ordinarily 2 years imprisonment, but can increase to 5 years imprisonment if the offender was in possession of an offensive weapon or if the offence was committed in contravention of a court order.

THE OFFENCE OF STALKING

The offence of stalking is contained in section 35 of the Crimes Act 1900 which states that a person must not stalk someone with intent to do any of the following:-

  • Cause apprehension of harm in the person stalked;
  • Cause apprehension of harm in someone else;
  • Cause fear of harm in the person stalked;
  • Cause fear of harm in someone else;
  • Cause harm to the person stalked;
  • Cause harm to someone else; or
  • Harass the person stalked.

The accused will be taken to have the requisite intent if they know or are reckless about whether stalking the other person would be likely to produce any of the above results. This presumption is contained in section 35(4) of the Crimes Act 1900.

For the purpose of this offence, the accused’s conduct is considered stalking if, on at least two occasions, the accused does one or more of the following:

  • Follows or approaches the stalked person;
  • Loiters near, watches, approaches or enters a place where the stalked person resides, works or visits;
  • Keeps the stalked person under surveillance;
  • Interferes with property in the possession of the stalked person;
  • Gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person;
  • Telephones, sends electronic messages to or otherwise contacts the stalked person;
  • Sends electronic messages about the stalked person to anybody else;
  • Makes electronic messages about the stalked person available to anybody else;
  • Acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person;
  • Engages in conduct amounting to intimidation, harassment or molestation of the stalked person.

This definition is contained in section 35(2) of the Crimes Act 1900.

‘Harm’ is further defined in section 35(6) of the Crimes Act 1900 as physical harm, harm to mental health, or disease, whether permanent or temporary, where:-

  • ‘Harm to mental health’ includes psychological harm; and
  • ‘Physical harm’ includes unconsciousness, pain, disfigurement and physical contact that might reasonably be objected to in the circumstances, whether or not there was an awareness of the contact at the time.

The maximum penalty for this offence is 2 years imprisonment. However, the maximum penalty is increased to 5 years imprisonment if either of the following apply:-

  • The offence involved a contravention of an injunction or other order made by a court; or
  • The offender was in possession of an offensive weapon.

This is contained in section 35(1) of the Crimes Act 1900.

It is important to note that for the prosecution of an offence under this section, it is not necessary to prove that:-

  • The person who was stalked apprehended harm; or
  • The person who was stalked feared harm; or
  • Someone else (other than the person who was stalked) apprehended harm; or
  • Someone else (other than the person who was stalked) feared harm; or
  • The person who was stalked was harassed.

That is, it is not necessary for the person stalked or someone else to have actually experienced apprehension or fear of harm, or harassment; it is sufficient that the accused intended their stalking to cause one of these results. This is set out in section 35(5) of the Crimes Act 1900.

However, it is not an offence if the conduct in question is reasonable conduct that is a function of the accused's employment and is not otherwise unlawful. This exception is contained in section 35(3) of the Crimes Act 1900.

WHAT ACTIONS MIGHT CONSTITUTE STALKING?

Examples of what would constitute stalking:-

  • You are obsessed with a boy in one of your university classes. You follow him to the café he goes to after each class and try to sit with him, despite him having asked you multiple times to leave him alone.
  • You were very upset when your girlfriend broke up with you and you told her to watch her back. You do not want to hurt her but you want to send a message that you are watching her. You wait until she goes to bed each night then move a garden gnome that she keeps in her front yard to a different position. It is your way of letting her know you have been there.
  • You were fired from your job and are not happy with the treatment you have been given. You call your old boss and threaten to come after his wife if he does not fix the situation. You keep calling and emailing him even though he does not reply. On the weekend, you follow him when he takes his wife to Floriade and send him a photo of them together. You call him three times again on Monday and he has his assistant screen your calls. You send him a photo of his wife while she is at the hair salon because you do not think he is getting the message clearly enough. In that photo you are holding up a knife that is visible. In this case, you would be liable to imprisonment for 5 years as you were in possession of an offensive weapon while committing the offence.

An example of what would NOT constitute stalking:-

  • You are a private investigator and are hired to follow your client’s wife. She sees you a few times around the place and begins to get concerned for her safety as she thinks you are stalking her. You would not be guilty of an offence as following your client’s wife is one of the functions of your employment and you are not otherwise doing anything illegal.

WHAT THE POLICE MUST PROVE:

To convict you of an offence under section 35(1) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond reasonable doubt:-

  • That you stalked a person; and
  • That you intended to:-
    • Cause apprehension of harm in the person stalked; or
    • Cause apprehension of harm in someone else; or
    • Cause fear of harm in the person stalked; or
    • Cause fear of harm in someone else; or
    • Cause harm to the person stalked; or
    • Cause harm to someone else; or
    • Harass the person stalked; or
  • That you knew that stalking the other person would be likely to:-
    • Cause apprehension of harm in the person stalked; or
    • Cause apprehension of harm in someone else; or
    • Cause fear of harm in the person stalked; or
    • Cause fear of harm in someone else; or
    • Harass the person stalked; or
  • That you were reckless about whether stalking the other person would be likely to:-
    • Cause apprehension of harm in the person stalked; or
    • Cause apprehension of harm in someone else; or
    • Cause fear of harm in the person stalked; or
    • Cause fear of harm in someone else; or
    • Harass the person stalked.

To be liable to 5 years imprisonment the prosecution must, in addition to the above, prove the following:-

  • That the offence involved a contravention of an injunction or other order made by a court; or
  • That you were in possession of an offensive weapon.

POSSIBLE DEFENCES FOR STALKING:

The common ways to defend a charge under section 35(1) of the Crimes Act 1900 are:-

  • To maintain your innocence if you did not commit the offence; or
  • To argue that you did not intend to cause harm to the person stalked or someone else, or apprehension or fear of harm in the person stalked or someone else, or to harass the person stalked, and that you did not know and were not reckless as to whether the stalking would be likely to cause this; or
  • To argue that your conduct was a function of your employment and the conduct was not otherwise unlawful.

WHICH COURT WILL HEAR YOUR MATTER?

Most offences under section 35(1) of the Crimes Act 1900 will be dealt with in the ACT Magistrates Court. If the alleged offence involved a contravention of a court order or you were in possession of an offensive weapon, the offence can be dealt with in the ACT Magistrates Court or the ACT Supreme Court, depending what the prosecution and you elect to do.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Brisbane: (07) 3229 4448
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777