Section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 contains an offence of stalking or intimidating another person with the intention of causing the other person to fear physical or mental harm.
Elements of the offence
In order to prove this offence the prosecution must establish the following elements beyond a reasonable doubt:
- That the accused stalked or intimidated the other person, or attempted to stalk or intimidate the other person; and
- The accused knew that their conduct was likely to cause fear of physical or mental harm in the other person.
The prosecution is not required to establish that the other person actually feared physical or mental harm, only that the accused knew their conduct was likely to cause this fear in the other person. The legislation also broadens the offence by including fear of harm to anyone with whom the alleged complainant has a domestic relationship.
Behaviour that may constitute the offence
Behaviour that may constitute stalking or intimidation includes:
- following a person
- approaching, watching or frequenting their home, workplace or a location the person frequents for social or recreational activity
- trying to contact or contacting the other person by any means, for example, using post, text messaging, email, social media, telephone or other technological mediums, which causes the other person to fear for their safety
- verbally threatening someone in person, over post, text messages, email, telephone, social media or other technological mediums
- conduct that amounts to molestation or harassment of the other person
- damaging another person’s property
- any conduct that causes a reasonable apprehension of violence or damage to any person or property
Defences
Defences that may be raised against this offence include:
- Arguing that all of the elements of the offence cannot be established
- Arguing that the accused was mistaken for the perpetrator
- Arguing that the alleged behaviour did not occur and that the allegations are false
- Arguing that the accused did not have the necessary intent and did not intend to cause any fear of harm
- Arguing that the accused had a lawful or legitimate reason for the behaviour, including working in the same building or attending the same gym or cafe as the other person
- Arguing the defence of necessity and establishing that the accused was compelled by a threat of danger to commit the offence
- Arguing the defence of duress and establishing the accused was under pressure or undue persuasion by another person to commit the offence
This offence carries a maximum penalty of 5 years imprisonment and/or a fine of $5,500.