This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Unlawful Stalking
Unlawful stalking is a serious offence under Queensland law punishable, in some circumstances, by up to 10 years imprisonment. The punishments for unlawful stalking are set out in section 359E of the Criminal Code Act 1899 which provides for three different maximum penalties.
If the crime is committed, simpliciter, it is punishable by up to 5 years imprisonment. If it is committed with actual or threatened violence, while armed with a weapon, or in contravention of a court order (for example a domestic violence order) it is punishable by up to 7 years imprisonment. If it is committed by a person who is a member of a criminal organisation it is punishable by up to 10 years imprisonment.
The Offence of Stalking
Unlawful stalking is defined in section 359B of the Criminal Code Act 1899 which says:
Unlawful stalking is conduct
- intentionally directed at a person (the stalked person); and
- engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
- consisting of 1 or more acts of the following, or a similar, type
- following, loitering near, watching or approaching a person;
- contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
- loitering near, watching, approaching or entering a place where a person lives, works or visits;
- leaving offensive material where it will be found by, given to or brought to the attention of, a person;
- giving offensive material to a person, directly or indirectly;
- an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
- an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and
- that
- would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
- causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.
What the Police Must Prove
In order to convict you of unlawful stalking it must be proved that you:
- intentionally engaged in any of the conduct described in section 359B(c); and
- your conduct was deliberately directed at a person; and
- your conduct would cause that person apprehension or fear of violence to or against them, or someone else; or
- your conduct caused detriment to that person.
It is important to note that it does not need to be proved that you intended to cause the apprehension or fear of violence, or detriment, mentioned above. It also does not need to be proved that the apprehension or fear of violence, or detriment, was actually suffered by the stalked person. All that needs to be proved is that the apprehension or fear of violence, or detriment, would have been caused on a reasonable view of your conduct.
Possible Defences to Unlawful Stalking
In addition to the “ordinary defences” which apply to most criminal matters, namely that you were not the person who committed the offence or you did not engage in the conduct which gave rise to the offence, it is also a defence to a charge of unlawful stalking if you did not intend for your conduct to be directed toward a particular person.
That you didn’t intend for the stalked person to be aware of your conduct (which was directed at them) is not a defence to a charge of unlawful stalking so care must be taken when considering whether or not to contest the charge.
Which Court Will Hear Your Matter?
The least serious cases of unlawful stalking will be heard in a Magistrates Court. The two more serious kinds must be heard and determined in the District Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.