Personal safety is one of the most important aspects of life. If you experience an incident that threatens your personal safety, you should not hesitate to use the law as a means of protecting yourself and asserting your rights.

Today we take a look at the laws of New South Wales (NSW), Australia, regarding stalking and intimidation.

Offence of Stalking or Intimidation

Stalking or intimidation is a criminal offence in NSW, carrying a maximum penalty of 5 years imprisonment and/or a fine of AUD 5,500.

Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides that, in order to establish a charge of stalking or intimidation, the prosecution must prove the following two elements beyond reasonable doubt:

1. The accused stalked or intimidated the victim; and

2. The accused intended to cause the victim to fear physical or mental harm; or the accused knew that their conduct was likely to cause the victim to fear physical or mental harm.

Stalking

Definition

Section 8 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides that stalking includes:

1. Following a person;

2. Frequenting the vicinity of a person’s residence, place of business or work, or any social or leisure venue the person frequents, or watching any such place;

3. Contacting or approaching a person using the internet or other technological means.

A specific example of point 3 above would be repeatedly calling or texting a person, or repeatedly replying to them on their social media pages, after the person has clearly indicated they no longer wish to be contacted.

Stalking also includes repeatedly leaving notes on a person’s car or leaving gifts at their door after the person has expressed objection.

It is important to note that conduct considered stalking by a criminal court is generally sustained or repeated conduct. Such behaviour is aimed at maintaining contact with the person being stalked, or establishing a power dynamic over them to exert pressure. An isolated incident may not be considered stalking.

What to Do If You Experience Stalking

If you experience stalking, the best course of action is to document every stalking incident, preserve evidence, and report the matter to the police. Records should include the time, location, specific events, the names of any witnesses, the time and location the report was made to police, and the name of the officer who took the report. If the stalking is conducted via telecommunications or the internet, take care to preserve items sent to you such as emails and text messages. As mentioned above, stalking is generally sustained or repeated conduct, and keeping records helps the court make this determination.

Intimidation

Section 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides that intimidation includes:

1. Conduct amounting to harassment of a person (including cyber bullying); or

2. Conduct causing a person to fear for their safety, including conduct using telephone, text message, email or other technological means; or

3. Conduct that would cause a reasonable apprehension of injury, violence or damage to property to the person or a member of their family.

Similar to the approach for stalking described above, if you experience intimidating conduct you should keep records, preserve evidence, and report the matter to the police.

Intention to Cause the Victim to Fear

In order to establish a charge of stalking or intimidation, in addition to proving that the accused engaged in stalking or intimidating conduct, it must also be proven that the accused had the following criminal intent —

1. The intention to cause the victim to fear physical or mental harm; or

2. The accused knew that their conduct was likely to cause the victim to fear physical or mental harm.

Where the accused refuses to admit this, how does the court determine whether they had the requisite criminal intent?

Criminal intent may appear subjective and therefore difficult to prove. In practice, however, the court will infer whether the requisite intent existed based on the accused’s conduct and the surrounding circumstances at the time.

Example

For example, in R v Matthew James Rickard [2006] NSWDC 150:

After Mr Rickard and Ms Talbot broke up, Mr Rickard made several harassing phone calls to her and one night appeared at her residence. Ms Talbot repeatedly asked Mr Rickard to leave; he refused, and proceeded to walk around inside Ms Talbot’s residence, asking whether she was with someone else. Upon seeing a men’s jacket, Mr Rickard asked Ms Talbot whose jacket it was, and took the jacket with him when he left.

Mr Rickard claimed that he had attended Ms Talbot’s home to check on her wellbeing. The court rejected this explanation, and ruled as follows: Mr Rickard’s act of walking around Ms Talbot’s home and taking the men’s jacket showed that he was not concerned about Ms Talbot’s wellbeing, but rather was seeking to ascertain whether she had begun a new relationship. Combined with Mr Rickard’s conduct in cutting off the electrical circuit at Ms Talbot’s residence that night, the court inferred that Mr Rickard had the intention to cause Ms Talbot to fear physical or mental harm, and found Mr Rickard guilty of intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Cyber Stalking and Cyber Bullying

In today’s internet age, people face not only violence in real life but also violent conduct occurring online. In NSW, section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) applies equally to prohibit cyber stalking and cyber bullying that amounts to intimidation.

About Dolly’s Law

In 2018, a deeply distressing incident shocked all of Australia — Dolly Everett was a young girl attending school in Queensland who, having been subjected to cyber bullying, took her own life at the age of 14. Following this tragedy, to help prevent similar events, the NSW Government amended the law to broaden the definitions of “stalking” and “intimidation” so that they expressly include certain conduct carried out using the internet, resulting in the provisions we see today — stalking now includes cyber stalking conduct using the internet or other technological means to contact or approach a person, and the definition of intimidation now also includes examples of cyber bullying. The related laws are known as “Dolly’s law”.

Accordingly, if you experience stalking or intimidating conduct online, remember that this law may assist you, and seek help from the police or the courts as soon as possible.

Common forms of cyber stalking include:

1. Repeatedly calling or texting a person

2. Repeatedly leaving comments on a person’s social media

3. Repeatedly sending private messages to a person’s social media accounts

Common online conduct amounting to intimidation includes using social media or email to post or distribute offensive or frightening material to bully a person.

Common Defences

Common defences raised by the accused include:

1. The accused did not intend to cause the victim to fear, and did not know that their conduct would cause the victim to fear.

2. Duress: the accused was coerced by another person into stalking or intimidating the victim.

3. Necessity: the accused engaged in stalking or intimidation in order to avoid a greater harm.

Conclusion

The above is an overview of the laws of New South Wales, Australia, regarding stalking, intimidation, cyber stalking and cyber bullying. If you require further advice, please contact our experienced lawyers.