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Stalking

What the law says

Sections 359 B of the Criminal Code Queensland states:

"Unlawful Stalking" is conduct-

  • (a) intentionally directed at a person ( the "stalked person"); and
  • (b) engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
  • (c) consisting of 1 or more acts of the following, or a similar, type-
    • (i) following, loitering near, watching or approaching a person;
    • (ii) contacting a person in any way, including for example, by telephone, mail, fax, email ot through the use of any technology;
    • (iii) Loitering near, watching, approaching or entering a place where a person lives, works or visits.
    • (iv) Leaving offensive material where it will be found by, given to or brought to the attention of, a person;
    • (v) Giving offensive material to a person directly or indirectly;
    • (vi) An intimidating, harassing or threatening act against, or against property of anyone, including the defendant; and
  • (d) that-
    • (i) 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
    • (ii) causes detriment, reasonably arising in all the circumstances, to be stalked person or another person.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

  1. The accused has engaged in conduct that was intentionally directed at the complainant. (It is immaterial whether the accused intends that the complainant be aware that that conduct is directed at the complainant or if the accused has a mistaken belief about the identity of the person at whom the conduct is initially directed. It is immaterial whether the conduct directed at the complainant consists of conduct carried out in relation to another person or the property of another person)
  2. The conduct is engaged in on any one occasion if the conduct is protracted or on more than one occasion. ( it is immaterial whether the conduct throughout the occasion on which the conduct is protracted, or the conduct on each of the number of occasions, consists of the same or different acts).
  3. The conduct consists of one or more acts of the following, or similar type:
    • (a) following, loitering near, watching or approaching a person;
    • (b) contacting a person in any way, including for example, by telephone, mail, fax, email ot through the use of any technology;
    • (c) loitering near, watching, approaching or entering a place where a person lives, works or visits.
    • (d) leaving offensive material where it will be found by, given to or brought to the attention of, a person;
    • (e) giving offensive material to a person directly or indirectly;
    • (f) an intimidating, harassing or threatening act against, or against a person whether or not involving violence or threat of violence;
    • (g) an act of violence, or threat of violence, against, or against property of, anyone, including the accused. (It is immaterial whether the conduct directed at the complainant consists of conduct carried out in relation to another person or property or another person)
  4. That the conduct would
    • (a) 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
    • (b) causes detriment, reasonably arising in all the circumstances, to be stalked person or another person. ( It is immaterial whether the defendant intended to cause the apprehension or fear, or the detriment, mentioned in the section. It is immaterial whether the apprehension or fear, or the violence is actually caused.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.

Maximum penalty

The Maximum penalty for the offence of Stalking is 5 years imprisonment.

Where there are circumstances of aggravation, the maximum penalty may be 7 years imprisonment.

Circumstances of Aggravation include:

  • (a) The accused uses or intentionally threatens to use, violence against anyone or anyone's property; or
  • (b) Possesses a weapon within the meaning of the Weapon's Act 1990; or

Contravenes or intentionally threatens to contravene an injunction or order imposed or made by a court or tribunal under a law of the Commonwealth or a State.

Which court will hear the matter

This matter is indictable which means it is dealt with in the District Court.

Possible defences

Possible defences to this offence include but are not limited to

  1. Identification i.e. not the accused
  2. An act done in the lawful execution of a law or administration of an Act or for the purpose authorised by the Act;
  3. Acts done for the purposes of a genuine industrial dispute;
  4. Acts done for the purpose of a genuine political or other genuine public dispute or issues carried on in the public interest.
  5. Reasonable conduct engaged in by a person for the person's lawful trade, business or occupation.
  6. Reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.

Criminal Law Article written by Bill Potts (a Queensland criminal defence lawyer who is experienced in Stalking matters)

 

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