Queensland Criminal Law Update: Unlawful Stalking
From a legal perspective, the offence of stalking is one of the most complex in the Queensland Criminal Code.
This is partly due to the fact that the offence is a “continuing”offence, meaning that it may involve one or many separate acts. Each of the acts on their own may not necessarily constitute a criminal offence. Rather, it is the totality of the actions which makes up the offence.
Elements of Unlawful Stalking
The essential elements of the offence that the prosecution must prove are that the conduct was:
- Intentionally directed at the stalked person;
- Comprises one (if protracted) or multiple acts (discussed below)
- That would cause the stalked person apprehension or fear, reasonably arising in the circumstances of violence or otherwise causes detriment.
Conduct that is Unlawful Stalking
The types of conduct that make up the offence of stalking includes loitering, following, watching, recording, publishing a person’s personal information, monitoring, employing tracking devices, reading a person’s text or phone messages and contacting a person in any way. The Domestic and Family Violence (Combating Coercive Control) And Other Legislation Amendment Act 2023 (the Act) amended Chapter 33A of the Criminal Code (the Code) to expand unlawful stalking to include intimidation, harassment, or abuse.
Discussion
One of the reasons that the offence of stalking is so complex is that it covers a wide variety of situations. It is frequently seen in matters involving domestic violence. This is recognised in a recent amendment to the Criminal Code which creates a circumstance of aggravation if a “domestic relationship” exists between the relevant parties. It also comes up where neighbours may be having a dispute. In unusual cases it arises where the stalked person and the defendant have no prior or continuing connection. In the latter type of case, the question of a mental health defence is often live.
One of the challenges associated with the provision is that the Crown must establish that the conduct in all of the circumstances caused fear or detriment to the complainant. Where both parties contribute equally to the conduct – for instance, two neighbours involved in a protracted dispute with each other – there is a question as to whether the requirement for fear or detriment is able to established objectively.
Advancements in technology also create difficult legal issues. For instance, deliberately filming a person may constitute an act of stalking. It may also be conduct that a stalked person engages in to preserve evidence of the stalker’s behaviour.
Defences to Unlawful Stalking
It is a defence to a charge of stalking to show that the behaviour:
- Was reasonable in the circumstances (for instance, in relation to lawful trade, occupation or business);
- Was done in the execution of the law
- Was done during a genuine industrial, political or public dispute;
- Was an accident or the result of an extraordinary emergency.
Mental health defences – such as where the defendant was of unsound mind at the time of the offence, or is permanently unfit for trial – may also apply in a small number of cases.
Restraining orders
Where a person is charged with unlawful stalking, the Court has the power to impose a restraining order for up to five years. The restraining order prevents the defendant from contacting the complainant. It is a separate criminal offence to breach a restraining order.
The Court is empowered to impose a restraining order if the defendant is convicted of the charge (whether by a plea of guilty or after a trial) or if the charge is withdrawn or the defendant is acquitted. The order can be made on application of the prosecution or the Court’s own initiative.
Get legal advice from an experience criminal lawyer
Due to the complexity of the law of stalking, it is critical that you get legal advice from an experienced lawyer. Early advice makes a significant difference to how the charge is ultimately resolved.
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