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Stalking, Harassment and Threatening Behaviour

Stalking is an indictable offence which carries a maximum penalty of 10 years imprisonment. Stalking occurs when a person contacts, follows or engages in a course of conduct towards another person when that person does not want them to and it causes them fear or distress. Stalking can occur online and through social media networks and sites and can involve remotely accessing and hacking another person’s computer.

The Offence of Stalking

The offence of stalking is contained in the Crimes Act 1958 under section 21A. The offence has 2 elements:

  1. The accused intentionally engaged in a course of conduct that included conduct of the type described in s21A(2)(a)-(g); and
  2. The accused either:
    1. Committed that course of conduct with the intention of causing physical or mental harm to the victim, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person; or
    2. Knew that engaging in a course of conduct of that kind would be likely to cause such harm, or arouse such apprehension or fear; or
    3. Ought to have understood that engaging in a course of conduct of that would be likely to cause such harm, or arouse such apprehension or fear, and it actually did have that result.

What Actions Constitute Stalking?

The course of conduct must be one of the types of conduct specified in s21A (2) of The Crime Act 1958, (these include following the victim, contacting the victim, publishing information on the internet, etc.). The matters set out in s21A(2) are not necessarily unlawful. It is these actions in a course of conduct directed at a person combined with a specific intent that constitutes the criminality of the offence.

While sections1A(2)(a)-(f) Crimes Act 1958 identifies particular forms or types of conduct, s 21(2)(g) is a ‘catch all’ provision, aimed at all other type of conducts which have the effect of arousing apprehension or fear in the victim for his or her own safety or that of any other person.

Types of conduct which may constitute stalking can include:

  • Phoning, text messaging, leaving answering machine and voicemail messages;
  • Sending letters, notes, faxes, email, ‘gifts’ or other unwanted material
  • Harassment in online chat rooms or forums;
  • Following, loitering outside a person’s home or workplace;
  • Maintaining surveillance or spying, cyber-stalking and internet tracing
  • Interfering with or damaging your property;
  • Spreading malicious gossip;
  • Making direct or indirect threats to harm another or their loved ones;
  • Direct approaches which may result in physical assault.

What the Police Must Prove

In order for an accused to be found guilty of this offence, the police must establish beyond a reasonable doubt that:

  • The accused engaged in course of conduct; and
  • That conduct must have included conduct of the type and nature specified in s21A(2)(a)-(g); and
  • The accused committed those acts intentionally.

Possible Defences for Stalking

Section 21A(4A) of the Crimes Act 1958, provides a defence to the charge of stalking for the accused to prove that the course of conduct was engaged in without malice, (meaning it was not intended to cause harm or apprehension) where the alleged conduct was done in the normal course of a lawful business, trade profession or enterprise; for the purpose of an industrial dispute; or for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.

Which Court Will Hear Your Matter?

As an indictable offence this matter can be heard in the County Court.

It is also an indictable matter which may be heard summarily in the Magistrates Court where the maximum penalty to be imposed is 2 years on a single charge, and 5 years on multiple charges.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

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...

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