Talking About Stalking – When Does Behaviour Constitute the Offence of ‘Stalking’?

Stalking is defined under legislation as a course of conduct with the intention of causing physical or mental harm to the victim (including self-harm) or of arousing apprehension or fear in the victim for his or her own safety, or for that of another person.[1]

Elements of the Offence of Stalking

The Police must establish two elements beyond reasonable doubt to establish the offence of Stalking.

The first element ‘Course of Conduct’ has three parts:

  • You must have engaged in a ‘course of conduct’;
  • The conduct was a type of activity described in the elements below; and
  • The activity was intentional.[2]

It must be proven that you engaged in one of the following activities:

  1. Following the alleged victim;
  2. Contacting the alleged victim through telephone, post, text, email or other medium. This includes publishing or tracking material online relating to the alleged victim or the victim’s family;
  3. Loitering or entering the alleged victim’s home, workplace or premises commonly frequented by the person;
  4. Interfering with the alleged victim’s property;
  5. Providing or giving offensive material to the alleged victim (including leaving the material in a place reasonably likely for the person to find it);
  6. Monitoring the alleged victim;
  7. Acting in a manner which could cause physical or mental harm or cause fear or apprehension to the alleged victim.[3]

Secondly, the Police must prove an intention to harm or cause fear by establishing either:

  1. An intention to cause physical or mental harm to the alleged victim or cause one to fear for their (or another’s) safety;
  2. Knowledge that the conduct could cause harm or arouse apprehension; or that you
  3. Ought to have known or understood that the conduct is likely to cause harm.

Possible Penalties for Stalking

The maximum penalty for stalking in Victoria is 10 years imprisonment.

Available Defences

There are specific exceptions to the offence of Stalking where it can be shown the conduct was not malicious and was conducted in the normal course of business.[4] Exceptions are where the behaviour amounts to official duties, such as a Police Officer, or behaviour was related to an industrial dispute or for political reasons.[5] If the conduct was not malicious and was conducted in the normal course of business, it may also fall under this exception.[6]

There are other defences that can be submitted in response to a stalking charge. The alleged conduct must fall within the scope of ‘Stalking behaviour’. If there is only one occurrence of conduct amounting to stalking, it will be difficult to prove a pattern of behaviour.[7] For example, merely staring at someone may not constitute the offence.[8] You can argue a lack of intention, especially if you did not intend to cause harm to the victim.[9] Another defence can be ‘honest and reasonable mistake or belief’. If there is a factual dispute or you believe the charge is based on mistaken identity, you can argue against your Stalking charge. There is also a defence available to you if you were suffering from a mental impairment at the time of the offence. However, it is important to discuss the best defence for your individual case with a lawyer based on the circumstances relevant to your matter.

[1] Crimes Act 1958 (Vic) s 21A.
[2] R v Anders(2009) 20 VR 596.
[3] Crimes Act 1958 (Vic) s 21A (a)-(g).
[4] Crimes Act 1958 (Vic) s 21A (4A).
[5] Crimes Act 1958 (Vic) s 21A (4A).
[6] Crimes Act 1958 (Vic) s 21A (4A).
[7] Nadarajamoorthy v Moreton [2003] VSC 283.
[8] Slaveski v State of Victoria [2010] VSC 441.
[9] Crimes Act 1958 (Vic) s 21A.

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