12.1 An AVO may be granted to stop or prevent behaviour amounting to stalking or intimidation, but falling short of actual physical violence. Every AVO the court grants must, unless otherwise stated, specifically prohibit the defendant from stalking or intimidating the applicant.1 There will be occasions, however, where redress under the criminal law is appropriate to punish persistent, unwanted attention that causes fear of violence. In some cases, that persistent attention may amount to a breach of the criminal law in itself, for example, knowingly sending a letter to someone containing threats to kill or harm that person.2 In other cases, actions may not be criminal in themselves, but, when viewed in context, may create a fear of violence or harm.
12.2 The stalking and intimidation provisions in s 562AB of the Crimes Act were introduced in an attempt to bridge that perceived gap between AVOs and the criminal law. This accounts for their location in Part 15A, despite the fact that they are substantive criminal offences and Part 15A deals for the most part with civil processes. This chapter examines the adequacy of the elements which constitute the criminal offence of stalking and intimidation. As such, the terms “accused” and “victim” are used to describe the perpetrator and the target of the offence.
BACKGROUND
12.3 Stalking has only been recognised as a criminal offence relatively recently. In 1991, California became the first jurisdiction to create an offence of stalking following the stalking murder of an actress by an obsessed fan in 1989.3 All Australian jurisdictions enacted anti-stalking legislation between 1993 and 1996,4 and there is similar legislation in the United Kingdom, Ireland, Canada and New Zealand.5
12.4 In NSW, the stalking and intimidation offence originally only applied to people who were in a domestic relationship.6 In 1994 this limitation was removed, recognising that stalking or intimidation can occur regardless of whether or not the parties are in a domestic relationship.7 In 1999, the offence was expanded again. Previously, the offender had to cause fear of “personal injury”, which failed to recognise that stalking, as an expression of power and control, may not aim to arouse fear of physical violence.8 As amended, it is an offence to cause fear of “physical or mental harm”.9
CURRENT LAW
New South Wales
12.5 In addition to provisions relating solely to AVOs, Part 15A also creates the substantive offence of stalking or intimidation. “Stalking” is defined as:
the following of a person about or the watching or frequenting of the vicinity of or an approach to a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.10
12.6 “Intimidation” is defined more broadly as:
12.7 A person may be charged with either stalking or intimidation, or both.13 An offence of stalking or intimidation will have been committed under s 562AB of the Crimes Act if the accused has done an act falling within one or both of the above definitions, with the “intention” of causing another person “to fear physical or mental harm”.14 It is not necessary to prove that the accused intended to cause fear, or that the victim actually feared physical or mental harm.15 It is sufficient for the prosecution to satisfy the court beyond a reasonable doubt that the person “knows the conduct is likely to cause fear in the other person”.16 The offence includes causing a person to fear harm to another person with whom he or she has a domestic relationship,17 covering, for example, conduct which causes a person to fear for the safety of his or her child.
12.8 In deciding whether a person’s conduct amounts to intimidation, the court can have regard to any pattern of violence in the person’s behaviour, especially violence constituting a domestic violence offence.18 Relationship evidence is also admissible in order to determine whether the conduct in question was likely to cause fear. Such evidence puts the conduct in question “into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act”.19
Other jurisdictions
12.9 Stalking provisions in other jurisdictions have different requirements for the physical and mental elements comprising the offence of stalking. For example, some jurisdictions require the accused to have engaged in a course of conduct before the offence will lie.20 Some jurisdictions also have quite expansive, but non-exhaustive, lists of the type of conduct that will amount to stalking or harassment, including:
- following,21 loitering near,22 or approaching23 a person;
- loitering near, watching, approaching or entering a place where the victim lives, works or visits;24
- keeping the victim under surveillance;25
- telephoning, sending electronic messages to, or otherwise contacting, the victim or any other person;26
- interfering with,27 threatening28 or hiding29 property in the possession of the victim;
- giving offensive material to the victim or any other person, or leaving it where it will be found by, given to or brought to the attention of, the victim or another person;30
- stopping, confronting or accosting a person in a public place;31 or
- forcibly hindering or preventing any person from working at or exercising any lawful trade, business or occupation.32
12.10 Some legislation specifically excludes certain conduct from the scope of the definition of stalking or harassment to ensure that legitimate activity is not inadvertently criminalised. For example, in Queensland, stalking does not include acts done for a lawful purpose, acts done for the purpose of an industrial, political or other public dispute, reasonable conduct engaged in for the person’s trade, business or occupation, or reasonable conduct to obtain or give information that the person has a legitimate interest in obtaining or giving.33 In Tasmania and Victoria, it is not an offence if the person is performing his or her official duties,34 while in Western Australia, it is a defence that the accused acted with lawful authority or reasonable excuse.35
12.11 So far as the mens rea element is concerned, legislation in other jurisdictions requires an intention by the accused either to cause harm, to intimidate, or to arouse fear or apprehension of a threat to safety, or to frighten the victim.36 In some States, the prosecution must prove that the accused actually had such an intention.37 In other States, it is sufficient to prove intent if the accused knows, or ought reasonably to know in the circumstances, that his or her conduct would be likely to cause harm or arouse fear in the victim.38 In South Australia, an offence is committed where the accused is recklessly indifferent as to whether his or her actions generate fear in the victim.39 It is further provided in Queensland that it is immaterial whether the accused intended the victim to be aware of the stalking, or if the accused mistook the identity of the victim.40
12.12 The requisite mental state of the victim also differs between jurisdictions. In Victoria, for example, the victim must have actually feared for his or her safety in order to ground the offence.41 Legislation in other States is silent as to the mental state of the victim,42 or, as in New South Wales, explicitly provide that it is not necessary to prove the effect of the accused’s actions on the victim for the offence to be established.43 Western Australia has a two-tiered approach: where the accused acts in a manner that could reasonably be expected to intimidate, the victim must have in fact felt intimidated before an offence can be made out.44 However, if it can be proven that the accused actually intended to intimidate the victim, the mental state of the victim is irrelevant.45
VIEWS ON EFFECTIVENESS
12.13 In DP 45, the Commission asked how effective the stalking and intimidation provisions were, whether the “intent” provision was appropriate, and whether there should be any defences or exclusions.
Effectiveness of current provisions
12.14 Some submissions expressed the view that the current provisions were effective, striking the appropriate balance between conduct that amounts to nuisance and behaviour which is criminal.46 It was also considered that the stalking and intimidation offences fill an important gap between the civil regime of AVOs and criminal offences involving actual personal violence.47 Intimidation and stalking can be as terrifying as physical violence, and should remain as a substantive criminal offence.48 To emphasise this, it was suggested that the stalking offence should be included in the same place as other personal violence offences in the Crimes Act, since its location in Part 15A could be seen to lack the requisite prominence.49
12.15 The Chief Magistrate is of the view that the provisions do not appear to have caused difficulties for the prosecution proving the physical and mental elements of the offence, nor unfairness to defendants, and is increasingly used to protect police officers from intimidating behaviour.50 However, other submissions expressed the view that the onus of proving the offence was too high given its shadowy nature, resulting in the stalking and intimidation provisions hardly being used.51
Definitions of stalking and intimidation
12.16 A number of submissions noted the need for the definitions of stalking and intimidation to include specific reference to technologically-assisted methods of contact, such as approaches made by email and mobile telephone text messaging. The Commission heard during consultations that some people do not understand that contact of this type can amount to stalking or intimidation.52 The Chief Magistrate also suggested that the definition of stalking should make specific reference to the frequenting of schools or child care centres.53
Current test of intention
12.17 Some considered that the current requirement, whereby the prosecution must prove beyond reasonable doubt that the accused knew that his or her conduct was “likely to cause fear” in the other person, was appropriate.54 However, others were of the view that that test is too narrow:55
Often a stalker does not intend to cause fear of physical injury or psychological damage. Often the intention is to maintain control over an ex-partner or gain attention. Following a person about, watching them or repeatedly telephoning or writing to the person may not be done with the intention of causing physical or mental harm but may have a devastating effect on the person. It may be appropriate to amend the legislation to provide that it is an offence to stalk or intimidate a person with the intention of arousing apprehension in the victim for his or her safety.56
12.18 Others suggested that the test of “likely to cause fear” should be changed to a more objective one, such as the reasonable person test, or where the accused “ought to have known”, as many people may not in fact understand that their actions would be likely to cause fear.57 It was also noted that the intent requirement seems to be difficult to prove in the case of “celebrity stalking”. The test should be whether stalking or intimidation has occurred, regardless of whether the conduct occurs out of love, delusion, or harassment.58
Should the test be expanded to include detriment or distress?
12.19 In DP 45, the Commission noted that the test of intending to cause fear of physical or mental harm may not go far enough in recognising the full impact of persistent unwanted attention on a victim, even though no fear of actual harm is caused or would be likely to be caused.59 For this reason, Queensland legislation defines unlawful stalking to include conduct that “causes detriment, reasonably arising in all the circumstances, to the stalked person or another person”.60 “Detriment” includes prevention or hindrance from doing an act a person is lawfully entitled to do, for example where a person changes the route or form of transport he or she would ordinarily use to travel to work. It also includes compulsion to do an act a person is lawfully entitled to abstain from doing, for example where a person feels compelled to sell a property he or she would otherwise not sell.61
12.20 A number of submissions were of the view that a similar provision should be included in the NSW stalking provisions,62 to recognise that the perpetrator’s behaviour impacts on all facets of the victim’s life.63 The view was taken that the Queensland example covers behaviour which affects psychological well-being, but falls short of causing fear, without criminalising “nuisance” behaviour.64 Another submission suggested that the provision should be extended to include behaviour which is “likely to cause psychological detriment or fear of physical or mental harm”, being less broad than the Queensland definition and therefore less likely to run the risk of criminalising behaviour which is merely irritating.65
12.21 However, other submissions noted the need for caution in ensuring that the offence of stalking is not trivialised, as this would undermine community respect for the law.66 There is the risk that extending the requisite mental element to the intention to cause “detriment or distress” could capture minor incidents.67 It was suggested that “serious detriment or distress” would be preferable, but this still leaves problem of interpreting the level of seriousness.68 It was pointed out that behaviour which caused detriment, but not fear of physical or mental harm, and is therefore not serious enough to ground the offence of stalking, would be sufficient for obtaining an AVO, and continuation of the behaviour would be a breach.69 It was considered that this should provide sufficient protection to a person who is the victim of persistent unwanted attention, provided the police consistently take action with regard to breaches.70
Defences?
12.22 As noted above, some jurisdictions contain defences to a charge of stalking and intimidation.71 One submission was of the view that similar provisions should be considered in New South Wales.72 Others, however, were against this idea, expressing the view that they are either not necessary or would diminish the seriousness of the offence.73
The Commission’s views
12.23 The offence of stalking and harassment is by nature imprecise, as behaviour which is otherwise considered quite ordinary becomes threatening in certain circumstances: “the difficulty in defining stalking as a concept lies in its paradoxical status as an act that is ambiguously located somewhere between crime and conformity”.74 As such, it can be difficult to clarify at what point the behaviour turns from being acceptable to deserving of criminal sanction.75 For example, when should the criminal law determine when the legitimate pursuit of a love interest becomes frightening and intimidating?76 It is generally agreed that stalking is quintessentially a crime of context:77
stalking is a behaviour which gains its criminality from the context in which it occurs and the activities typifying these obsessions may appear as innocent commonplace human interaction when taken out of context.78
12.24 This inherent imprecision has led many commentators to the view that setting clear parameters in legislation is extremely difficult.79
12.25 The elements common to most stalking offences are the engagement by the accused in particular conduct which is intended to cause the victim to fear some kind of physical or mental harm or threat to his or her personal safety. Proof of the intention of the accused and the perception of the victim is not necessary in all jurisdictions. Those elements must be present in tandem to ensure that behaviour which is not intended or likely to cause fear, and provokes no apprehension in the victim, is not inadvertently criminalised.
Conduct amounting to stalking or intimidation
12.26 Clearly defining conduct that may amount to stalking or intimidation is problematic. While some types of behaviour, such as sending threatening letters or making obscene telephone calls clearly amount to dangerous and unacceptable conduct, other behaviour, such as sending gifts or flowers, is not in itself unacceptable. The fact that the actus reus of stalking or intimidation may fall well within the range of socially conformist behaviour sets these offences apart from many other crimes.
12.27 Since any conduct may feasibly give rise to the offences of stalking or intimidation if accompanied by the requisite mental elements on the part of the accused and the victim, the Commission is of the view that the definitions of stalking and harassment should be as broad as possible. As noted above, the definitions of stalking and/or intimidation in other jurisdictions are more descriptive than the NSW legislation in terms of listing the type of conduct that may constitute the offences. Given the view expressed above that stalking and intimidation are primarily context-based offences, the Commission considers that the inclusion of such an expansive list in NSW is unnecessary.
12.28 The current definition of intimidation should, however, be amended to clarify that it includes conduct carried out through electronic means such as email or mobile telephone text messaging. The Commission heard during consultations that while many people were unaware that such actions could constitute intimidation. While the current definition of intimidation in s 562A refers to “repeated telephone calls” and “any conduct that causes a reasonable apprehension of injury”, an explicit reference to the inclusion of technologically-assisted methods of contact would be valuable.
12.29 In his submission, the Chief Magistrate pointed out an apparent inconsistency between the definition of intimidation in s 562A as conduct that “causes a reasonable apprehension of injury”, and the provision in s 562AB(4) stating that the prosecution need not prove that the victim “actually feared physical or mental harm” in order for the offence of stalking or intimidation to be established.80 It is arguable that those provisions are not inconsistent, but have the effect of not requiring the prosecution to have to prove that the victim reasonably apprehended the injury. However, the Commission is of the view that the key element in the offence of stalking and intimidation should be the intention of the accused and not the mental state of the victim. Consequently, the Commission recommends that the concept of reasonableness be removed from the definition of intimidation.
12.30 It was also suggested in submissions that the definition of stalking should be amended to include a reference to frequenting schools and child care centres. While the Commission agrees that frequenting such places with the intent to cause fear should give rise to the offence of stalking, it does not consider it necessary to refer to them specifically. The Commission recommends instead that the definition of stalking should be amended to replace the word “means” with the word “includes”, so that the definition becomes inclusive rather than exhaustive. If this were done, there would be no need to refer specifically to particular places, as this could be read into the definition on a case by case basis.
12.31 The key factor in whether the offence of stalking has been substantiated should be the intention of the accused to cause the victim to fear physical or mental harm. Consequently, the conduct that may constitute stalking must have a sufficient nexus to the victim to enable such a fear to be aroused. The Commission is of the view that the current reference in the definition of stalking to the “following of a person about” provides such a nexus and is, therefore, appropriate. It would also cover following a person to a school or day care centre, or any other place a person frequents for whatever reason. Similarly, the current reference to a person’s residence or place of work or business is also appropriate, as it provides a sufficient connection between the actions of the accused and the effect of those actions on the victim.
12.32 The definition would then read:
Stalking includes the following of a person about or the watching or frequenting of the vicinity of or an approach to a person’s place of residence, business or work.
12.33 Other legislation also requires there to be a “course of conduct”, usually amounting to at least two instances, before the actus reus of stalking or intimidation will be satisfied. The NSW provision refers to “repeated” telephone calls as constituting harassment, and defines stalking as “frequenting” a person’s residence or place of business. The view has been expressed in NSW that the word “frequenting” in the definition of stalking would require that there had been “more than a single visit to the complainant’s place [or vicinity] of residence”.81 While it is envisaged that, in most cases, fear of physical or mental harm would only be experienced after a series of incidents, it should depend on the circumstances of each case. Consequently, the Commission does not make any recommendation for change on this point.
The requisite mental elements
12.34 Having an easily satisfied actus reus means that the mental elements are key factors in establishing the criminality of stalking or intimidating behaviour. The two major mental elements involved in the offences are:
12.35 Other factors need to be considered within those two elements, such as whether the accused needs in fact to have intended for his or her actions to cause fear, or whether more objective criteria should apply. Further, it needs to be determined whether or not the victim actually needs to have experienced fear, and, if so, fear of what?
12.36 In NSW, a person cannot be liable unless he or she intends to cause fear of physical or mental harm. This is not a strict test of intention, however, for a person will be liable if he or she knows that the conduct is likely to cause fear, whether or not that result was actually intended. As noted earlier, some jurisdictions require proof that the accused in fact intended to cause fear or apprehension,82 presumably so that criminal liability could not arise where people inadvertently caused fear.83 This has proved to be a significant barrier to prosecution, as it may be extremely difficult to prove beyond reasonable doubt that someone intends actions, such as sending presents, to cause fear.84 As a result there has been a shift towards more objective tests which focus on whether offenders should have known that their behaviour would cause fear.85
12.37 While an objective test would theoretically make it easier to obtain a prosecution, there is a concern that it may be lowering the threshold for criminal liability too far, particularly given the broad and imprecise nature of the actus reus of the offence.
12.38 So far as the mental state of the victim is concerned, some jurisdictions require the prosecution to prove that the actions of the accused actually caused the victim to experience fear. The advantage of this approach is that a person will not be accused of a criminal offence where they have engaged in conduct which may not in itself be criminal and has not in fact caused another person to fear that any harm would result. In Victoria, the requirement to prove that the victim actually feared harm is balanced by an objective test of intention on the part of the accused.86 This approach has been criticised, however, on the basis that criminal liability would then be determined by whether or not the victim is stoic or easily frightened. New legislation has been introduced into Parliament removing the need to prove fear on the part of the victim:
The evil in the offence is the actual stalking. The intention on the part of the offender to cause fear, or the fact that the offender ought to have understood that their target would be frightened, is the key factor that should make the behaviour criminal. The fact that a target of stalking is unaware or is not easily frightened should not prevent prosecution of the offence.87
12.39 The Commission agrees with the view that criminal liability for stalking or intimidation should not hinge on the particular mental state of each victim. The critical factor should be the intention of the accused to cause fear. While proving the intention of another is always difficult, the Commission considers that the current test in s 562AB, requiring the prosecution to establish beyond reasonable doubt that the accused knew his or her actions were likely to cause fear of physical or mental harm, is appropriate. Introducing a more objective test, or expanding the nature of the harm caused to include detriment and distress, may make it easier to secure a prosecution. However, the Commission is concerned that the threshold for criminal responsibility should not be lowered too far, particularly given the fact that the actual impact on the victim need not be proved and the offence carries a maximum penalty of five years imprisonment.
12.40 In response to concerns that the offence of stalking and intimidation is too shadowy and therefore too difficult to prove to the criminal standard, it should also be noted that an AVO will still be available to stop or prevent the conduct. Also, other offences under the Crimes Act or the Summary Offences Act 1988 (NSW) may be applicable, for example, in circumstances where someone intends to peep or pry on another, or threatens to cause harm to a person or damage to property.88
12.41 Consequently, the Commission recommends no change to the provisions of s 562AB regarding the intention of the accused or the mental state of the victim.
RECOMMENDATION 55
The definition of “intimidation” in s 562A should be amended to mean:
- any conduct amounting to harassment or molestation, or
- any conduct that causes any other person to fear for his or her safety, including damage to property.
Intimidation may include approaches conducted through technologically-assisted means, such as telephoning, emailing or mobile telephone text messaging.
RECOMMENDATION 56
The definition of “stalking” in s 562A should be amended as follows:
Stalking includes the following of a person about or the watching or frequenting of the vicinity of or an approach to a person’s place of residence, business or work.
FOOTNOTES
1. Crimes Act s 562BC.
2. Such behaviour would contravene Crimes Act s 31.
3. See California Penal Code s 646.9. Similar legislation has now been enacted in every other state, and a Model Anti-Stalking Code has been developed by the National Institute of Justice: see US Department of Justice, Stalking and domestic violence: the third annual report to Congress under the Violence Against Women Act (1998).
4. See Crimes Act 1900 (ACT) s 34A; Criminal Code (NT) s 189; Crimes Act 1900 (NSW) s 562AB; Criminal Code (Qld) s 359A; Criminal Law Consolidation Act 1935 (SA) s 19 and s 19AA; Criminal Code (Tas) s 192; Crimes Act 1958 (Vic) s 21A; Criminal Code (WA) s 338D and s 338E.
5. See Protection from Harassment Act 1997 (UK); Non-Fatal Offences Against the Person Act 1997 (Ireland) s 10; Criminal Code, RSC 1985, c C-46 (Canada) s 264; Harassment Act 1997 (NZ). The Law Reform Commission of Hong Kong has recommended that stalking and harassment should be criminalised: Law Reform Commission of Hong Kong, Stalking (Report, 2000).
6. Crimes (Domestic Violence) Act 1993 (NSW).
7. Crimes (Threats and Stalking) Amendment Act 1994 (NSW).
8. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 November 1999 at 3676.
9. Crimes Amendment (Apprehended Violence) Act 1999 (NSW).
10. Crimes Act s 562A(1).
11. Harassment and molestation are not specifically defined in the Crimes Act. However, Part 15A provides that for the purpose of making either an ADVO or an APVO, conduct may amount to harassment or molestation of a person even though it does not involve actual or threatened violence to the person or consists only of actual or threatened damage to property belonging to, in the possession of, or used by the person: Crimes Act s 562AE(3) and s 562AI(3).
12. Crimes Act s 562A(1).
13. See eg, R v Strong [2003] NSWCCA 123, where the appellant received separate sentences for intimidation and for stalking.
14. The offence carries a penalty of imprisonment for up to 5 years, or a fine of 50 penalty units, or both: Crimes Act s 562AB(1).
15. Crimes Act s 562AB(4).
16. Crimes Act s 562AB(3).
17. Crimes Act s 562AB(2).
18. Crimes Act s 562A(2).
19. R v Atroushi [2001] NSWCCA 406 at para 33 (Carruthers AJ).
20. In Victoria, the offender must engage in a “course of conduct”: Crimes Act 1958 (Vic) s 21A(2)(a). The Australian Capital Territory, the Northern Territory and the United Kingdom require the particular conduct to have occurred on at least two separate occasions: Crimes Act 1900 (ACT) s 34A(2); Criminal Code (NT) s 189(1); Protection from Harassment Act 1997 (UK) s 7(3). The Queensland legislation requires the conduct to have been engaged in more than once. However, one act may constitute stalking if the conduct is protracted: Criminal Code (Qld) s 359B. In New Zealand, the offence of harassment applies if an act has occurred on at least two separate occasions within a period of 12 months: Harassment Act 1997 (NZ) s 3. In California, harassment is defined in terms of a course of conduct constituting “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose: California Penal Code s 646.9(f).
21. Criminal Code (Qld) s 359B(c)(i); Crimes Act 1958 (Vic) s 21A(2)(a); Crimes Act 1900 (ACT) s 34A(2)(a); Criminal Code (NT) s 189(1)(a)(i); Harassment Act 1997 (NZ) s 21(1)(b).
22. Criminal Code (Qld) s 359B(c)(i).
23. Criminal Code (Qld) s 359B(c)(i); Crimes Act 1900 (ACT) s 34A(2).
24. Crimes Act 1900 (ACT) s 34A(2)(b); Criminal Code (NT) s 189(1)(a)(ii); Criminal Code (Qld) s 359B(c)(iii); Crimes Act 1958 (Vic) s 21A(2)(c); Harassment Act 1997 (NZ) s 21(1)(d).
25. Crimes Act 1900 (ACT) s 34A(2)(c); Criminal Code (NT) s 189(1)(a)(iv); Crimes Act 1958 (Vic) s 21A(2)(f); Harassment Act 1997 (NZ) s 21(1)(d).
26. Crimes Act 1958 (Vic) s 21A(2)(b); Crimes Act 1900 (ACT) s 34A(2)(f); Criminal Code (Qld) s 359B(c)(ii).
27. Crimes Act 1958 (Vic) s 21A(2)(d); Criminal Code (NT) s 189(1)(a)(iii); Crimes Act 1900 (ACT) s 34A(2)(d); Harassment Act 1997 (NZ) s 21(1)(c).
28. Criminal Code (Qld) s 359B(c)(vii).
29. Harassment Act 1997 (NZ) s 21(1)(c).
30. Crimes Act 1958 (Vic) s 21A(2)(e); Criminal Code (Qld) s 359B(c)(v); Crimes Act 1900 (ACT) s 34A(2)(e).
31. Harassment Act 1997 (NZ) s 21(1)(e).
32. Harassment Act 1997 (NZ) s 21(2).
33. Criminal Code (Qld) s 359D.
34. Criminal Code (Tas) s 192(3); and Crimes Act 1958 (Vic) s 21A(4).
35. Criminal Code (WA) s 338E(3).
36. Criminal Code (Qld) s 359B(a); Crimes Act 1958 (Vic) s 21A(2); Crimes Act 1900 (ACT) s 34A(1); Criminal Law Consolidation Act 1935 (SA) s 19(1)(b); Criminal Code (NT) s 189(1)(b); Criminal Code (WA) s 338E; Harassment Act 1997 (NZ) s 21(1); California Penal Code s 646.9(a).
37. See eg Crimes Act 1900 (ACT) s 34A(1) and Criminal Code (NT) s 189(1)(b).
38. Crimes Act 1958 (Vic) s 21A(3); Criminal Code (Qld) s 359B(d) and s 359C(4); Criminal Code (WA) s 338E(2). Note that in NSW there is no reasonable circumstances test: see para 12.5-12.8 above.
39. Criminal Law Consolidation Act 1935 (SA) s 19(1)(b).
40. Criminal Code (Qld) s 359C(1).
41. Crimes Act 1958 (Vic) s 21A(2). Note, however, that this provision will be repealed by the Crimes (Stalking) Bill 2003 (Vic), which no longer requires proof of the actual effect of the stalking on the victim, should that legislation proceed through the Victorian Upper House.
42. Criminal Law Consolidation Act 1935 (SA) s 19; Criminal Code (NT) s 189; Harassment Act 1997 (NZ) s 21.
43. Crimes Act 1900 (ACT) s 34A(3); Criminal Code (Qld) s 359C(5).
44. Criminal Code (WA) s 338E(2).
45. Criminal Code (WA) s 338E(1).
46. AVLICC, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Law Society of NSW, Criminal Law Committee, Submission.
47. Chief Magistrate, Local Court of NSW, Submission.
48. Hawkesbury Nepean Community Legal Centre, Submission.
49. NSW Police Service, Submission.
50. Chief Magistrate, Local Court of NSW, Submission.
51. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; South West Sydney Legal Centre, Submission; Newcastle consultation; Wollongong consultation.
52. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
53. Chief Magistrate, Local Court of NSW, Submission;
54. AVLICC, Submission; Graham Johnson, Magistrate, Submission.
55. NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Legal Aid NSW, Submission; Mt Druitt and Area Community Legal Centre, Submission.
56. Legal Aid NSW, Submission. This is the case in other jurisdictions: see eg Crimes Act 1958 (Vic) s 21A; and Criminal Code (NT) s 189.
57. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Gosford consultation.
58. Mt Druitt and Area Community Legal Centre, Submission.
59. See DP 45 at ch 13.
60. Criminal Code (Qld) s 359B(d)(ii).
61. Criminal Code (Qld) s 359A.
62. AVLICC, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; NSW Health, Submission; South West Sydney Legal Centre, Submission; Mt Druitt and Area Community Legal Centre, Submission.
63. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
64. AVLICC, Submission.
65. NSW, Department for Women, Submission.
66. Law Society of NSW, Criminal Law Committee, Submission; Legal Aid NSW, Submission.
67. Graham Johnson, Magistrate, Submission.
68. Graham Johnson, Magistrate, Submission.
69. Legal Aid NSW, Submission.
70. Legal Aid NSW, Submission.
71. See para 12.10 above.
72. Law Society of NSW, Criminal Law Committee, Submission.
73. NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Graham Johnson, Magistrate, Submission; NSW Police Service, Submission; South West Sydney Legal Centre, Submission; Mt Druitt and Area Community Legal Centre, Submission.
74. E Ogilvie, Stalking: legislative, policing and prosecution patterns in Australia (Australian Institute of Criminology, 2000) at 12.
75. Ogilvie at 7-14.
76. Ogilvie at 7-14.
77. See E Finch, “Stalking the perfect stalking law: an evaluation of the efficacy of the Protection from Harassment Act 1997” [2002] Criminal Law Review 703 at 708.
78. A Pearce and P Easteal, “The ‘domestic’ in stalking: policing domestic stalking in the Australian Capital Territory” (1999) Alternative Law Journal 30.
79. See E Ogilvie, Stalking: legislative, policing and prosecution patterns in Australia (Australian Institute of Criminology, 2000) at 53; Australia, Model Criminal Code Officers Committee, Model Criminal Code Chapter 5 non fatal offences against the person (Report, 1998) at 53; S Kift, “Stalking in Queensland: from the nineties to Y2K” (1999) 11 Bond Law Review 144 at 145; D Wiener, “Stalking: Does the law work?” (2001) 75(8) Law Institute Journal 67; J Mountfort, “The civil provisions of the Harrassment Act 1997: A worrying area of legislation?” (2001) 32 Victoria University of Wellington Law Review 999; E Finch, “Stalking the perfect stalking law: an evaluation of the efficacy of the Protection from Harassment Act 1997” [2002] Criminal Law Review 703.
80. Chief Magistrate, Local Court of NSW, Submission.
81. R v Piccin [2001] NSWCCA 35 at para 73.
82. See para 12.11 above.
83. The Model Criminal Code Committee recommended that proof of an intention to cause serious fear or apprehension be retained, so that people who caused fear without intending to could not be prosecuted: Australia, Model Criminal Code Officers Committee, Model Criminal Code Chapter 5 non fatal offences against the person (Report, 1998) at 61.
84. Need to prove intent under the strict subjective test in the ACT legislation has been identified by Australian Federal Police as a factor in deciding not to charge offenders under the ACT stalking provisions. A survey of AFP officers revealed that 91% stated that evidential inadequacy played some role in the decision not to charge, while 33% stated that the reason they did not use stalking legislation always derived from the intent element: see A Pearce and P Easteal, “The ‘domestic’ in stalking: policing domestic stalking in the Australian Capital Territory” (1999) Alternative Law Journal 30.
85. The Western Australian legislation was amended for this reason: “The stalking provisions need to be extended to cover those situations where there is no intent on the part of the accused but the victim nevertheless fears for his or her safety or is prevented from going about his or her normal lifestyle. Therefore, the [Criminal Law Amendment Bill 1997 (WA)] provides for a new simple offence of stalking which does not involve any intent on the part of the accused.” Western Australia, Parliamentary Debates (Hansard) Legislative Council, 11 November 1997 at 7465. There are now two separate offences – the more serious offence requires the accused to have behaved “with intent to intimidate”; the lesser offence only that accused’s behaviour be “reasonably expected to intimidate”: Criminal Code (WA) s 338E(1) and s 338E(2).
86. This approach has also been recommended for the ACT: see A Pearce and P Easteal, “The ‘domestic’ in stalking: policing domestic stalking in the Australian Capital Territory” (1999) Alternative Law Journal 30.
87. Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 10 October 2002 at 531.
88. See eg, Crimes Act s 31 (maliciously sending documents containing threats); s 199 (threatening to destroy or damage property); s 545B (intimidation or annoyance by the use of violence); s 547C (peeping or prying); Summary Offences Act 1988 (NSW) s 4 (offensive conduct) and s 11G (loitering by a convicted sex offender near premises frequented by children).
