Stalking, Harassment and Threatening Behaviour

Stalking is an indictable offence under section 21A of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment (Level 5).

Stalking can occur in person, online, through social media, or by electronic surveillance. Conduct that may appear lawful in isolation can become criminal when repeated and directed at a person in a way that causes harm, fear or serious distress.

The Offence of Stalking

The prosecution must prove two core elements:

1. A Course of Conduct

The accused must have engaged in repeated or protracted behaviour of the type described in s 21A(2), including:

  • Following the victim;
  • Contacting or attempting to contact the victim;
  • Publishing material about the victim online;
  • Loitering near the victim’s home or workplace;
  • Surveillance or cyber-stalking;
  • Interfering with or damaging property;
  • A “catch-all” provision covering other conduct that arouses fear or apprehension.

The conduct must demonstrate continuity of purpose.

In R v Gunes, the Victorian Court of Appeal confirmed that stalking criminalises conduct that may be individually lawful but becomes criminal when forming a persistent pattern.

2. The Required Mental Element

The accused must have:

  • Intended to cause physical or mental harm (including self-harm), or to arouse fear; or
  • Known that the conduct was likely to cause harm or fear; or
  • Ought to have understood that the conduct was likely to cause harm, and harm was in fact caused.

In R v Campbell, the Court held that the “ought to have understood” limb introduces an objective standard and requires proof that harm was actually caused.

What the Police Must Prove

To obtain a conviction, the prosecution must establish beyond reasonable doubt that:

  • The accused engaged in a course of conduct;
  • The conduct included one or more behaviours listed in s 21A(2);
  • The accused acted intentionally; and
  • The required mental element is satisfied.

Possible Defences

A statutory defence exists where the accused can prove that the conduct was engaged in without malice in the normal course of:

  • Lawful business, trade or profession;
  • An industrial dispute;
  • Political activity or public discussion.

Which Court Will Hear Your Matter?

Stalking is indictable and may be heard in the County Court. It may also be heard summarily in the Magistrates’ Court, where sentencing limits apply.

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