7.4.7.1 – Stalking (after 7 June 2011)[1]

7.4.7.1.1 - Bench Notes: Stalking (after 7 June 2011)

Operation of Section 21A

  1. The offence of stalking is created by Crimes Act 1958 s21A.
  2. The offence was substantially amended in 2003 by the Crimes (Stalking) Act, to achieve the following:

i)Cover acts of cyberstalking;

ii)Remove the requirement for proof aboutthe effect the conduct had on the victim, in cases where the accused had the appropriate subjective intention;

iii)Add the defence of lack of malice; and

iv)Explicitly allow for extra-territorial operation.

  1. The offence was further amended in 2011 by the Crimes Amendment (Bullying) Act, which:

i)Expanded the definition of stalking to cover threats and abusive or offensive words or actions;

ii)Covers acts of stalking intended to cause psychological harm, suicidal thoughts or self-harm.

  1. The new provisions apply to offences alleged to have been committed on or after 7 June 2011 (Crimes Act 1958 s617(1)).
  2. If any of the conduct is alleged to have been committed by the accused occurred prior to 7 June 2011, the offence is alleged to have been committed under the previous provisions (Crimes Act 1958 s617(2)).
  3. These Bench Notes are designed for offences committed after 7 June 2011. For offences committed before that date, references to self-harm and the expanded definition of psychological harm do not apply.

Elements

  1. The offence has the following two elements:

i)The accused intentionally engaged in a “course of conduct” that included conduct of the type described in ss21A(2)(a)-(g); and

ii)The accused either:

  • Committed that 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 that of any other person; or
  • 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
  • Ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm, or arouse such apprehension or fear, and it actually did have that result.

A Relevant Course of Conduct

  1. There are three aspects to the first element:

i)The accused must have engaged in a “course of conduct”;

ii)The course of conduct must have included conduct of the type or nature described in ss21A(2)(a)-(g); and

iii)The accused must have committed those acts intentionally (R v Anders [2009] VSCA 7).

“Course of Conduct”

  1. For the accused’s acts to have constituteda “course of conduct”, they musthave amounted to a pattern of conduct that showed a “continuity of purpose” in relation to the victim (Berlyn v Brouskos (2002) 134 A Crim R 111; Nadarajamoorthy v Moreton [2003] VSC 283; Thomas v Campbell (2003) 9 VR 136; R v Hoang [2007] VSCA 117; R v Anders [2009] VSCA 7).
  2. At the minimum, this requires the acts to have been committed on more than one occasion, or to have been protracted in nature (e.g., an extended act of surveillance) (Gunes v Pearson (1996) 89 A Crim R 297; Berlyn v Brouskos (2002) 134 A Crim R 111;Nadarajamoorthy v Moreton [2003] VSC 283; Thomas v Campbell (2003) 9 VR 136; R v Hoang [2007] VSCA 117).
  3. However, conduct which was committed on more than one occasion, or which was protracted, will not always constitute a pattern of conduct evidencing a continuity of purpose. Something additional about the conduct or surrounding circumstances must be shown before it can be said of the conduct that it amounts to such a pattern (Berlyn v Brouskos (2002) 134 A Crim R 111; Nadarajamoorthy v Moreton [2003] VSC 283).
  4. The continuity of purpose must have been in relation to the particular victim. It is not sufficient for the victim to have coincidentally been the subject of actions which were not specifically targeted at him or her personally (R v Anders [2009] VSCA 7).[2]
  5. The course of conduct may be spread out over a period of years (see, e.g., R v Hoang [2007] VSCA 117).
  6. An episode of harassment of short duration does not constitute a course of conduct evidencing a continuity of purpose (Nadarajamoorthy v Moreton [2003] VSC 283).
  7. If the alleged acts were not premeditated, there cannot have been a continuity of purpose (Thomas v Campbell(2003) 9 VR 136).

Relevant Types of Conduct

  1. The course of conduct must have been comprised of one or more of the types of conduct specified in s21A(2) (DPP v Sutcliffe [2001] VSC 43; R v Orgill [2007] VSCA 236).
  2. While ss21A(2)(a)-(f) identify particular forms or types of conduct, s21(2)(g) is a ‘catch-all’ provision, aimed at all other types of conduct which have the effect of arousing apprehension or fear in the victim for his or her own safety or that of any other person (DPP v Sutcliffe [2001] VSC 43).
  3. The matters set out in s21A(2) are not necessarily unlawful. It is the confluence of these actions in a course of conduct directed to a person with a specific intent which constitutes the criminality (Nadarajamoorthy v Moreton [2003] VSC 283).

Following the Victim

  1. Section 21A(2)(a) refers to “following the victim or any other person”.
  2. This requires some motion by the accused and the victim from place to place, or within different areas of the same place (such as a shopping centre or a building) (Slaveski v State of Victoria and Others [2010] VSC 441).
  3. The accused will therefore not fall within the scope of s21A(2)(a) if he or she stands or sits still and stares at the victim as the victim walks past. Following someone with one’s eyes is not sufficient (Slaveski v State of Victoria and Others [2010] VSC 441).
  4. To “follow” the victim, the accused does not need to physically remain behind the victim (Slaveski v State of Victoria and Others [2010] VSC 441).
  5. Thus, an accused who is aware of the victim’s daily routine, and is able to anticipate his or her movements, may “follow” the victim by being present outside the victim’s home before the victim leaves for work in the morning, and then preceding the victim to various locations throughout the day (e.g., the victim’s train station, workplace, place where the victim does his or her shopping) (Slaveski v State of Victoria and Others [2010] VSC 441).

Loitering

  1. Section 21A(2)(c) refers to “entering or loitering outside or near the victim’s or any other person’s place of residence or of business or any other place frequented by the victim or the other person”.
  2. “Loitering” involves more than simply being and remaining at a place. It conveys a concept of idleness, lack of purpose or indolence (Nadarajamoorthy v Moreton [2003] VSC 283).
  3. The accused must have been and remained at or near the relevant place for the purpose of causing physical or mental harm to the victim, or of arousing apprehension or fear in the victim for his orher safety or that of any other person (Nadarajamoorthy v Moreton [2003] VSC 283).
  4. A person may therefore not fall within the scope of s21A(2)(c) if, at the relevant time, he or she was engaged in other activities which render the description of “loitering” inapt in the circumstances, such as handing out brochures for a political protest (see, e.g., Nadarajamoorthy v Moreton [2003] VSC 283).
  5. Where there is an issue about whether or not the accused was “loitering”, the jury will need to exclude all reasonable hypotheses consistent with the accused not having been “loitering” beyond reasonable doubt (Nadarajamoorthy v Moreton [2003] VSC 283).

Surveillance

  1. Section 21A(2)(f) refers to “keeping the victim or any other person under surveillance”.
  2. “Surveillance” includes the use of cameras and other electrical equipment that enables the accused to keep watch over the victim by recording the victim’s movements or activity (R v Anders [2009] VSCA 7).
  3. The accused can commit stalking by surveillance by photographing the victim on a number of occasions (R v Anders [2009] VSCA 7).[3]
  4. Stalking by surveillance may also be made out by keeping watch over a location with the intent of observing or recording a specific victim’s movements (R v Anders [2009] VSCA 7).
  5. There is no separate legal test to distinguish between acts of monitoring or observation that amount to “surveillance”, and those that do not. Instead, where stalking by surveillance is alleged, the issue remains whether or not the conduct in question meets the “course of conduct” requirements of stalking (R v Anders [2009] VSCA 7).

Causing an Unauthorised Computer Function

  1. Section 21A(2)(bb) refers to causing an “unauthorised computer function”. This term is defined in Crimes Act 1958 s247A(1) to mean any of the following:

a)any unauthorised access to data held in a computer; or

b)any unauthorised modification of data held in a computer; or

c)any unauthorised impairment of electronic communication to or from a computer.

  1. This definition of “unauthorised computer function” incorporates a number of terms which are also defined in s247A(1), such as “access”, “data”, “impairment” and “modification”. See Stalking After 10 December 2003: Legislation.

Prosecution Must Particularise Relevant Acts

  1. The prosecution must particularise the acts said to constitute the course of conduct. If the prosecution wishes to rely upon acts which have not been particularised to establish the course of conduct, they must amend the charge accordingly (Thomas v Campbell(2003) 9 VR 136).[4]
  2. While the dates on which the course of conduct is alleged to have begun and ended should be specified in the presentment, it is not essential for the prosecution to prove that the course of conduct continued precisely between those dates (Thomas v Campbell (2003) 9 VR 136).
  3. Thus, the fact that, in the course of the trial, the prosecution confined its allegations to a shorter period than that specified in the presentment does not preclude the possibility of conviction (Thomas v Campbell (2003) 9 VR 136).

Unanimity

  1. The jury does not need to be unanimous about the particular acts which constituted the course of conduct. The requirement for unanimity will be met as long as the jury unanimously agrees that the accused engaged in a course of conduct which included any of the matters set out in s21A (R v Hoang [2007] VSCA 117; Worsnop v R [2010] VSCA 188).

Accused’s MentalState

  1. The second element requires the prosecution to prove that, when the accused committed the course of conduct, he or she intended to cause physical or mental harm to the victim, including self-harm, or to arouse apprehension or fear in the victim for his or her own safety or that of any other person (Crimes Act 1958 s21A(2)).
  2. There are three ways in which the prosecution can prove that the accused had the necessary intent:
  3. By proving that he or sheactually intendedto cause such harm, or arouse such apprehension or fear (s21A(2)); or
  4. By proving that he or sheknew that engaging in a course of conduct of that kind would be likely to cause such harm, or arouse such apprehension or fear (s21A(3)(a)); or
  5. By proving that he or sheought to have understood, in all the particular circumstances, that engaging in a course of conduct of that kind would be likely to cause such harm, or arouse such apprehension or fear, and it actually did have that result (s21A(3)(b)).
  6. The first two of these alternatives look solely at the accused’s subjective state of mind. If the accused him or herself intended to cause harm, fear or apprehension, or knew that such effects were likely to result from his or her actions, then this element will be met, regardless of whether or not his or her actions actually did cause such harm, fear or apprehension (R v Hoang [2007] VSCA 117).
  7. By contrast, the final alternative is an objective test. It focuses both on what the accused should have understood in the particular circumstances in which the course of conduct occurred, as well as on what effect the accused’s actions actually had on the victim (R v Hoang [2007] VSCA 117).
  8. If the jury is satisfied that either of the two subjective states of mind have been proven, they do not need to consider the objective element (Gunes v Pearson (1996) 89 A Crim R 297; R v Hoang [2007] VSCA 117).
  9. The prosecution does not need to prove that the accused committed each of the individual stalking actions with the necessary intention. It is the “course of conduct” that must have been committed with that intention (Gunes v Pearson (1996) 89 A Crim R 297; Worsnop v R [2010] VSCA 188).While the jury must unanimously find that the accused committed the course of conduct with one of the specified forms of intention, the jury does not need to be unanimous about which form of intention has been proven (Worsnop v R [2010] VSCA 188).
  10. “Mental harm” is defined to include psychological harm and suicidal thoughts (Crimes Act 1958 s21A(8)).
  11. It is for the jury to determine the meaning of the term “mental harm”, giving the words their ordinary English meaning. It is not limited to medically diagnosed psychological illnesses (RR v R [2013] VSCA 147).
  12. It does not matter if the accused was only using the victim to make a political point, and did not intend to cause him or her harm, fear or apprehension. If the accused knew that engaging in a course of conduct of that kind would be likely to have such an effect, this element will be satisfied (R v Abbott [2006] VSCA 100).
  13. Due to the objective test, it is possible that the accused may be found guilty of stalking even if he or she was so intoxicated that he or she was unable to form the necessary subjective intent (see Berlyn v Brouskos (2002) 134 A Crim R 111).

Performance of Official Duties

  1. Section 21A(4) states that the “section does not apply” to conduct engaged in by a person performing official duties for the purpose of enforcing the criminal law, administering an Act, enforcing a law imposing a pecuniary penalty, executing a warrant, or protecting public revenue.
  2. While this section has not yet been the subject of judicial interpretation, it seems likely that, where in issue, it will be a matter for the prosecution to disprove beyond reasonable doubt. .
  3. It is possible that this defence will not be disproved if the accused held a reasonable belief that the alleged acts were part of his or her official duties, even if this was not actually the case. In relevant cases it may be necessary to instruct the jury on this point.

Lack of Malice

  1. Section 21A(4A) states that it is a defence to the charge for the accused to prove that the course of conduct was engaged in without malice 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.
  2. The provision places the burden of proof on the accused, without specifying the required standard of proof. It seems highly likely that the standard will be the balance of probabilities.

Extra-Territorial Effect

  1. Section 21A has extra-territorial effect where the accused is amenable to Victorian process, and where some of the circumstances which constitute an element of the offence occurred in Victoria (DPP v Sutcliffe [2001] VSC 43).
  2. The extra-territorial effect of s21A was made explicit by the amendments in 2003 (see ss21A(6) and (7)).

Duplicity

  1. In some cases the accused will be charged with a separate offence relating to the acts which constitute the stalking, in addition to the offence of stalking. This will not be duplicitous, as long as the elements of the offences are not identical, and the elements of one of the offences are not wholly included in the other (Thomas v Campbell(2003) 9 VR 136; R v Orgill [2007] VSCA 236).
  2. The elements of stalking are not the same as the elements of assault, and not all of the elements of either offence are included in the other. This means that an accused can be convicted of stalking and assault, even where the acts which are relied upon as establishing the course of conduct amounting to stalking are also relied upon as establishing the assault (Thomas v Campbell (2003) 9 VR 136).
  3. A person may similarly be convicted of stalking and burglary, even though the burglary constitutes part of the alleged course of conduct for the stalking offence (R v Orgill [2007] VSCA 236).
  4. In such cases, care must be taken when sentencing the accused, to ensure that he or she is not punished twice for the commission of elements which are common to the relevant offences (Thomas v Campbell(2003) 9 VR 136; R v Orgill [2007] VSCA 236).

1

[1] This document was last updated on 12 September 2013.

[2] For example, it will not be sufficient to prove that the accused was undertaking surveillance of a particular location, and coincidentally happened to photograph the same person on more than one occasion. The accused must have intended to target the particular victim (R v Anders [2009] VSCA 7).

[3] This must occur on a sufficient number of occasions to evidence a continuity of purpose (see above), and must involve the necessary intent in relation to the victim (see below) (R v Anders [2009] VSCA 7).

[4] The prosecution may, however, use uncharged acts to establish a motive or relationship (Thomas v Campbell(2003) 9 VR 136). See Bench Notes: Relationship Evidence for further information.