Stalking- the four part test

I was asked the other day to define stalking. I said that it was like a hunter hunting its prey- hiding in the shadows and pouncing at an unexpected moment.

It made me think how legislation defined stalking. Being a Brisbane family lawyer, I’m going to talk about the Queensland Criminal Code. Most States have similar laws. If in doubt, get advice.

The definition of stalking in section 359B of the Criminal Code has a four part test:

Part 1

The behaviour must have been intentionally directed at the stalked person.

Part 2

It must have occurred once for a protracted occasion, or on several occasions.

Part 3

It must have caused 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
caused detriment, reasonably arising in all the circumstances, to the stalked person or another person.

Part 4

The behaviour was any of these or similar:

(i) following, loitering near, watching or approaching a person;

(ii) contacting a person in any way, including, for example, by telephone, mail, fax, email or 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 a person, whether or not involving violence or a threat of violence;

(vii) an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant.

What we can see from this shopping list of behaviour is that potentially a whole range of behaviour could constitute stalking- if the other parts of the test are met- and that in domestic relationships, acts of domestic violence may also be acts of stalking. Indeed many survivors of domestic violence describe behaviour by their former partners that is both domestic violence and stalking- meaning that potentially the former partners could be the subject of a protection order as well as charged with stalking.

Similarly if the survivor has the benefit of a domestic violence order, behaviour by their former partner which is both domestic violence and stalking might lead to the former partner being charged with stalking as well as breach of the order (or any other offence that they might have committed).

Section 359C of the Criminal Code sets out those matters that are immaterial to the prosecution of stalking. These include that it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or fear, or the detriment.

Section 359D of the Criminal Code exempts behaviour to allow people to carry out their usual occupations and to allow freedom of expression:

Unlawful stalking does not include the following acts–
(a) acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act;
(b) acts done for the purposes of a genuine industrial dispute;
(c) acts done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest;
(d) reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation;
(e) reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.

Section 359E of the Criminal Code sets out punishment for stalking:

(1) A person who unlawfully stalks another person is guilty of a crime.
(2) A person who commits the crime of unlawful stalking is liable to a maximum penalty of imprisonment for 5 years.
(3) However, a person is liable to a maximum penalty of imprisonment for 7 years if, for any of the acts constituting the unlawful stalking, the person–
(a) uses or intentionally threatens to use, violence against anyone or anyone’s property; or
(b) possesses a weapon within the meaning of the Weapons Act 1990; or
(c) 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.

The last one is the most interesting one in the family law arena- if a party deliberately flouts a family law order, they might, if the four part test has been met, may have committed the crime of stalking.

Finally, if a person is charged with stalking (irrespective of whether they are convicted), then the court may be able to make a restraining order: section 359F Criminal Code.