Prosecuting Stalking Prosecuting Stalking

Fiona Gray Fiona Gray Trial Advocate Trial Advocate

Office of the Office of the Director of Public Prosecutions (NSW)Director of Public Prosecutions (NSW)

Prosecuting Stalking Prosecuting Stalking 1.1. General history of the law General history of the law

regarding stalking regarding stalking 2.2. History of the law regarding History of the law regarding

stalking in NSWstalking in NSW3.3. Recent changes to the law Recent changes to the law

regarding stalking in NSWregarding stalking in NSW4.4. Prosecuting stalking Prosecuting stalking

Prosecuting stalking Prosecuting stalking History of the law regarding stalking History of the law regarding stalking Not until the late twentieth century that Not until the late twentieth century that specific laws addressing stalking were specific laws addressing stalking were enacted in many jurisdictionsenacted in many jurisdictions

Prosecuting stalking Prosecuting stalking 1.1. History of the law regarding stalking in History of the law regarding stalking in

NSWNSW In 1982 legislation was enacted to enable In 1982 legislation was enacted to enable

domestic violence orders to be obtained. domestic violence orders to be obtained. Limited to those in a married or de facto Limited to those in a married or de facto

relationshiprelationship Later expanded to include former partners and Later expanded to include former partners and

relatives relatives In 1989 legislation was passed to enable In 1989 legislation was passed to enable

AVO’s to be obtained by any individual. AVO’s to be obtained by any individual. That is, they were not relationship based. That is, they were not relationship based.

Prosecuting stalking Prosecuting stalking Stalking was not a separate offenceStalking was not a separate offence

in NSW until the enactment of in NSW until the enactment of

s562AB of the Crimes Act 1900 on s562AB of the Crimes Act 1900 on

19 December 1993. 19 December 1993.

Prosecuting stalking Prosecuting stalking 562AB   Stalking, intimidation with intent to cause fear for personal 562AB   Stalking, intimidation with intent to cause fear for personal

safetysafety (1)    A person who (1)    A person who stalksstalks or intimidates another person with whom he or or intimidates another person with whom he or

she has a she has a domestic relationshipdomestic relationship with the with the intention of causing the intention of causing the other person to fear personal injury other person to fear personal injury is liable, on conviction before is liable, on conviction before

a Magistrate, to imprisonment for 2 years, or to a fine of 50 a Magistrate, to imprisonment for 2 years, or to a fine of 50 penalty units, or both. penalty units, or both.

(2)    For the purposes of this section, causing a person to fear personal (2)    For the purposes of this section, causing a person to fear personal injury includes causing the person to fear personal injury to injury includes causing the person to fear personal injury to

another person with whom he or she has a domestic relationship. another person with whom he or she has a domestic relationship. (3)    For the purposes of this section, a person intends to cause fear of (3)    For the purposes of this section, a person intends to cause fear of

personal injury if he or she knows that the conduct is likely to personal injury if he or she knows that the conduct is likely to cause fear in the other person. cause fear in the other person.

(4)    For the purposes of this section, the prosecution is not required to (4)    For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated prove that the person alleged to have been stalked or intimidated

actually feared personal injury. actually feared personal injury.

Prosecuting stalking Prosecuting stalking Section 562AB was amended on 23 DecemberSection 562AB was amended on 23 December1994. The amendment removed the restriction1994. The amendment removed the restrictioncontained in subsection 1 that the parties had to contained in subsection 1 that the parties had to be in a domestic relationship. be in a domestic relationship.

The penalty was increased from 2 years to 5The penalty was increased from 2 years to 5years. The offence was no longer a summaryyears. The offence was no longer a summaryoffence, but could also be dealt with onoffence, but could also be dealt with onindictment in the District Court. indictment in the District Court.

Prosecuting stalking Prosecuting stalking The new s562AB(1) was as follows: The new s562AB(1) was as follows: (1)    A person who stalks or intimidates (1)    A person who stalks or intimidates

another person with the intention of another person with the intention of causing the other person to fear causing the other person to fear personal injury is liable, on conviction personal injury is liable, on conviction before a Magistrate, to imprisonment before a Magistrate, to imprisonment for 5 years, or to a fine of 50 penalty for 5 years, or to a fine of 50 penalty units, or both. units, or both.

Prosecuting stalking Prosecuting stalking Recent changes and the current lawRecent changes and the current law On 10 March 2008 the On 10 March 2008 the Crimes (Domestic Crimes (Domestic

and Personal Violence) Act 1997 and Personal Violence) Act 1997 came into came into effect. effect.

The Act moved a number of offences which The Act moved a number of offences which had previously been listed in the had previously been listed in the Crimes Crimes ActAct into a separate new Act. into a separate new Act.

The Act deals principally with domestic The Act deals principally with domestic violence offences and apprehended violence offences and apprehended domestic or personal violence orders. domestic or personal violence orders.

Prosecuting stalking Prosecuting stalking In the Agreement in Principal Speech made in Parliament it was In the Agreement in Principal Speech made in Parliament it was

stated that: stated that: ‘‘The legislative reforms are aimed at reducing stress and The legislative reforms are aimed at reducing stress and trauma for victims of domestic violence when progressing trauma for victims of domestic violence when progressing a matter through the criminal justice system and ensuring a matter through the criminal justice system and ensuring a clear statement is made about the aggravated nature of a clear statement is made about the aggravated nature of an offence of violence that is committed in the context of a an offence of violence that is committed in the context of a domestic relationship’. domestic relationship’. ‘‘The proposed stand alone Act will have the benefit also of The proposed stand alone Act will have the benefit also of a clearly stated and prominent objectives clause… the a clearly stated and prominent objectives clause… the separate Act will create a one –stop manual for separate Act will create a one –stop manual for practitioners and will mean that the Act is easier to amend practitioners and will mean that the Act is easier to amend in the future if amending is necessary. ‘in the future if amending is necessary. ‘

Prosecuting stalking Prosecuting stalking The Act also introduces changes to The Act also introduces changes to the law in relation to the granting of the law in relation to the granting of automatic interim apprehended automatic interim apprehended violence orders, whether personal or violence orders, whether personal or domestic, when an accused has domestic, when an accused has been charged with certain offences been charged with certain offences involving involving personal violence and personal violence and stalkingstalking. .

Prosecuting stalking Prosecuting stalking The offences are listed in s4 of the Act and The offences are listed in s4 of the Act and wounding and causing grievous bodily wounding and causing grievous bodily harm – whether intentionally or recklessly; harm – whether intentionally or recklessly; common assault; assault occasioning common assault; assault occasioning actual bodily harm; sexual assault; and actual bodily harm; sexual assault; and detaining a person. It does not include detaining a person. It does not include property offences – such as property offences – such as break/enter/steal. Although it does include break/enter/steal. Although it does include intentionally or recklessly damaging intentionally or recklessly damaging property. property.

Prosecuting stalking Prosecuting stalking The provisions relating to The provisions relating to stalking are contained in s8 and stalking are contained in s8 and s13 of the Act. s13 of the Act.

Prosecuting stalking Prosecuting stalking Section 8 contains the definition of stalking:Section 8 contains the definition of stalking:

Meaning of “stalking”Meaning of “stalking” (1)    In this Act, (1)    In this Act, “stalking”“stalking” includes the following of a includes the following of a

person about or the watching or frequenting of the person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of vicinity of, or an approach to, a person’s place of residence, business or work or any place that a residence, business or work or any place that a person frequents for the purposes of any social or person frequents for the purposes of any social or leisure activity.leisure activity.

(2)    For the purpose of determining whether a person’s (2)    For the purpose of determining whether a person’s conduct amounts to stalking, a court may have conduct amounts to stalking, a court may have regard to any pattern of violence (especially regard to any pattern of violence (especially violence constituting a domestic violence offence) in violence constituting a domestic violence offence) in the person’s behaviourthe person’s behaviour..

Prosecuting stalking Prosecuting stalking Section 8(1) is the same definition of Section 8(1) is the same definition of

stalking used since the enactment of stalking used since the enactment of the first stalking provision in 1993the first stalking provision in 1993

Section 8(2) provides a basis for the Section 8(2) provides a basis for the court to take into account a pattern of court to take into account a pattern of violence. This is a new provision. violence. This is a new provision.

Prosecuting stalking Prosecuting stalking The offence provision is contained in s13, which states: The offence provision is contained in s13, which states: Stalking or intimidation with intent to cause fear of physical or Stalking or intimidation with intent to cause fear of physical or

mental harmmental harm

(1)    A person who stalks or intimidates another person (1)    A person who stalks or intimidates another person with the intention of causing the other person to fear with the intention of causing the other person to fear physical or mental harm is guilty of an offence. physical or mental harm is guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.units, or both.

(2)    For the purposes of this section, causing a person to (2)    For the purposes of this section, causing a person to fear physical or mental harm includes causing the fear physical or mental harm includes causing the person to fear physical or mental harm to another person to fear physical or mental harm to another person with whom he or she has a domestic person with whom he or she has a domestic relationship.relationship.

Prosecuting stalking Prosecuting stalking Section 13Section 13(3)    For the purposes of this section, a person (3)    For the purposes of this section, a person

intends to cause fear of physical or mental intends to cause fear of physical or mental harm if he or she knows that the conduct is harm if he or she knows that the conduct is likely to cause fear in the other person.likely to cause fear in the other person.

(4)    For the purposes of this section, the (4)    For the purposes of this section, the prosecution is not required to prove that the prosecution is not required to prove that the person alleged to have been stalked or person alleged to have been stalked or intimidated actually feared physical or intimidated actually feared physical or mental harm.mental harm.

Prosecuting stalking Prosecuting stalking What it is that the Prosecution mustWhat it is that the Prosecution mustprove beyond a reasonable doubtprove beyond a reasonable doubt1.The accused 1.The accused stalkedstalked the victim; the victim;2.That stalking was done with the 2.That stalking was done with the intent intent

to to cause fearcause fear of of physical or mental physical or mental harm to the victimharm to the victim or to a person with or to a person with whom the victim has a whom the victim has a domestic domestic relationshiprelationship. .

Prosecuting stalking Prosecuting stalking Complaint is made to police and Complaint is made to police and

the matter is investigated. the matter is investigated. If there is sufficient evidence, If there is sufficient evidence,

then the accused is charged, or then the accused is charged, or issued a court attendance notice issued a court attendance notice to attend court on a particular to attend court on a particular day. day.

Prosecuting stalking Prosecuting stalking If there are strictly indictable charges associated If there are strictly indictable charges associated

with the stalking charge, then the matter is with the stalking charge, then the matter is automatically referred to the Office of the automatically referred to the Office of the Director of Public Prosecutions (‘ODPP’) for Director of Public Prosecutions (‘ODPP’) for prosecution. prosecution.

If there are no strictly indictable charges, then If there are no strictly indictable charges, then the Police Prosecutor will review the matter the Police Prosecutor will review the matter and consider whether it ought to be and consider whether it ought to be referred to the ODPP for prosecuting. referred to the ODPP for prosecuting.

Prosecuting stalking Prosecuting stalking The ODPP will assess whether there is The ODPP will assess whether there is

sufficient sentencing scope in the sufficient sentencing scope in the Local Court to reflect the objective Local Court to reflect the objective seriousness of the matter and the seriousness of the matter and the subjective factors associated with the subjective factors associated with the accused, including an assessment of accused, including an assessment of their criminal record and prior their criminal record and prior offences. offences.

Prosecuting stalking Prosecuting stalking If the matter is dealt with in the If the matter is dealt with in the

Local Court – Local Court – If the plea is not guiltyIf the plea is not guilty – it will be – it will be

listed for a hearing conducted by listed for a hearing conducted by the Police Prosecutor. the Police Prosecutor.

If the plea is guiltyIf the plea is guilty then the then the accused is sentenced by the accused is sentenced by the Magistrate.Magistrate.

Prosecuting stalking Prosecuting stalking If the matter is dealt with on indictment, then it If the matter is dealt with on indictment, then it

will be listed for a committal hearing at the will be listed for a committal hearing at the local court. Usually the brief of evidence local court. Usually the brief of evidence (statements etc) is tendered and the (statements etc) is tendered and the Magistrate makes a determination as to Magistrate makes a determination as to whether there is enough evidence to satisfy whether there is enough evidence to satisfy a jury beyond reasonable doubt in relation a jury beyond reasonable doubt in relation to the offence. to the offence.

The matter is committed for trial to the District The matter is committed for trial to the District CourtCourt

Prosecuting stalking Prosecuting stalking The accused is arraigned on the The accused is arraigned on the

indictment and if they plead not indictment and if they plead not guilty, the matter is listed for trial. guilty, the matter is listed for trial.

If they plea guilty, they are If they plea guilty, they are sentenced.sentenced.

Prosecuting stalking Prosecuting stalking Evidentiary considerations: Evidentiary considerations: Lack of witnesses Lack of witnesses Standard of proof and onus of Standard of proof and onus of proofproofEvidence which can corroborate or Evidence which can corroborate or support support Context evidenceContext evidence

Prosecuting stalking Prosecuting stalking Sentencing statisticsSentencing statistics

Prosecuting stalking Prosecuting stalking Finally – the role of the prosecutor Finally – the role of the prosecutor

Separate Separate Independent Independent Not the lawyer for the complainant. We Not the lawyer for the complainant. We represent the interests of the community. represent the interests of the community. There are requirements that we have There are requirements that we have under not only our own Guidelines, but under not only our own Guidelines, but also under the Charter of Victims’ Rights also under the Charter of Victims’ Rights