‘It’s The Law’ – Patterns required to prove claim

Stalking is a well-known term and understood by most people to be a criminal act. 

However, it is interesting that no criminal offence for stalking existed in Victoria until 1994. 

The offence of stalking was introduced to protect people who had not been threatened or physically attacked but had been ‘followed, placed under surveillance, contacted or sent offensive items’. 

In 2003 the offence was substantially amended to cover acts of cyberstalking and 2011 the offence was further amended to cover acts intended to cause psychological harm, suicidal thoughts or self-harm. 

In this article I will summarise the types of behaviour that may amount to stalking, the elements needed to prove a stalking offence and what to do if you are being stalked.

Types of behaviour

Following the victim: Where a person follows someone to different locations this may amount to stalking. 

However, following someone with one’s eyes is generally not sufficient unless the person is aware of the victim’s daily routine, and is able to anticipate his or her movements, such as waiting outside of their work when they leave to go home.

Loitering: Loitering involves more than simply being and remaining at a place; it conveys a concept of idleness and lack of purpose. 

The person 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 or her safety or that of any other person.

Surveillance: Surveillance means keeping a person under surveillance and ‘surveillance’ itself 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. 

Taking photos of a person over a number of occasions or keeping watch over a location with the intent of observing a person can amount to stalking.

Causing an unauthorised computer function: An ‘unauthorised computer function’ includes any unauthorised access to data held in a computer, or unauthorised modification of date held in a computer or any unauthorised impairment of electronic communication to or from a computer.

Elements

The offence has the following two elements, or parts, which must be proved for a charge of stalking to be proven: That the accused intentionally engaged in a ‘course of conduct’ and 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.

Course of conduct requires a pattern of conduct on more than one occasion or to have been protracted in nature – such as an extended act of surveillance. 

There must also be 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.

Mental harm is defined to include psychological harm and suicidal thoughts.

What you can do

If you are being stalked, or think you may be, you should speak to the police immediately.

You should detail the conduct which you are concerned about to allow them to investigate and potentially charge the perpetrator. 

You may also discuss with police placing an intervention order on the perpetrator to protect you from further acts.

Potential penalty

Stalking cases will usually be heard in the Magistrates’ Court of Victoria, but more serious offences may be heard in the County Court. 

The maximum penalty for stalking is level-five imprisonment, which is a maximum of 10 years.

This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick Smith nor O’Brien and Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.