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7.4.12.1 - Charge: Stalking (From 7/6/11)

Click here to obtain a Word version of this document for adaptation.

[This charge should be used in cases in which all of the alleged stalking acts were committed on or after 7 June 2011.

Where any of the relevant acts were committed between 10 December 2003 and 6 June 2011, use Charge: Stalking (10/12/03 - 6/6/11) instead.]

 

Elements

I must now direct you about the crime of stalking. That crime has the following two elements:

One - the accused intentionally engaged in a course of conduct that included particular types of actions.

Two - The accused either:

Before you can find NOA guilty of stalking, you must be satisfied that the prosecution has proven both of these elements beyond reasonable doubt.

I will now explain each of these elements in more detail.

Stalking Acts

The first element that the prosecution must prove is that the accused intentionally engaged in a course of conduct that included one or more of the following acts:

[Select relevant conduct from the list provided in Crimes Act 1958 s21A, applying to the evidence and explaining as necessary:

(a) following the victim or any other person;

(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;

(ba) publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material—

(i) relating to the victim or any other person; or

(ii) purporting to relate to, or to originate from, the victim or any other person;

(bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person;

(bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications;

(c) entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;

(d) interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property);

(da) making threats to the victim;

(db) using abusive or offensive words to or in the presence of the victim;

(dc) performing abusive or offensive acts in the presence of the victim;

(dd) directing abusive or offensive acts towards the victim;

(e) giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;

(f) keeping the victim or any other person under surveillance;

(g) acting in any other way that could reasonably be expected to

(i) to cause physical or mental harm to the victim, including self-harm; or

(ii) to arouse apprehension or fear in the victim for his or her own safety or that of any other person.]

If the term "following" requires further elaboration, add any relevant paragraphs from the following shaded section

If it is alleged that the accused was loitering, add the following shaded section

"Loitering" means more than simply being at a place and remaining there. It means being there with no legitimate purpose. To find that NOA was "loitering", you must be satisfied beyond reasonable doubt that there was no reasonable explanation for his/her presence, other than that s/he wanted to cause physical or mental harm to NOC, or to arouse apprehension or fear in NOC for his/her or someone else’s safety.]

If it is alleged that the accused was keeping someone under surveillance add the following shaded section

A person can keep someone under surveillance in a number of ways. In this case the prosecution alleges that NOA kept NOC under surveillance by [describe form of surveillance relied on by prosecution, e.g. "by observing / watching / filming / photographing / recording"] [describe object of surveillance, e.g. "him / her / his movements / her activities"].

It is not necessary for you to find that NOA committed all of the acts that I have outlined. For this element to be met you need only be satisfied that NOA intentionally did at least one of the relevant acts.

It is also not necessary for you all to agree about which particular act or acts NOA committed, as long as you all find that s/he intentionally committed at least one of the relevant acts.

However, you must all be satisfied that NOA’s acts constituted a "course of conduct".

To be a "course of conduct" the acts must have been committed on more than one occasion, or must have gone on for a prolonged period of time. A short, isolated act cannot constitute a "course of conduct".

However, it is not enough for you simply to find that NOA committed acts on more than one occasion, or committed one prolonged act. You must find that NOA’s actions were related in such a way, or had such a "continuity of purpose", that they amounted to a "pattern of behaviour" in relation to NOC. A series of unrelated activities, with no continuity of purpose, will not be a course of conduct.

That course of conduct must have been directed to NOC. This element will not be met if you find that NOC just happened to experience acts which were not specifically targeted at him/her.

It is only if you find that NOA engaged in a "course of conduct" in relation to NOC, that included one or more of the types of acts that I have mentioned, that this first element will be met.

[Insert relevant evidence and/or arguments.]

Accused’s Mental State

The second element relates to the accused’s state of mind and the circumstances in which the course of conduct was committed. This element can be met in three different ways.

First, it can be met if you find that the accused intended to harm NOC – either physically or mentally – or intended to cause NOC to be frightened or apprehensive about his/her own safety, or about the safety of someone else.

Where mental harm is relevant, add the following shaded section.

The law says that mental harm includes, but is not limited to, psychological harm and suicidal thoughts. It is a matter for you whether the accused intended to cause “mental harm”, giving that phrase its ordinary meaning, as you understand it.

Where the relevant harm is self-harm, add the following shaded section.

The law says that, for the purpose of this element, harm includes causing NOC to engage in self-harm.

Second, this element can be met if you decide that the accused knew that his/her conduct would be likely to cause NOC such harm, fear or apprehension.

The third way in which this element can be met is if you find:

This is a two part test. In the first part, you decide what the accused ought to have understood. Ought s/he have understood that his/her actions would be likely to cause NOC to suffer physical or mental harm, including self-harm, or to become frightened or apprehensive? This is no longer a question of what the accused actually knew or intended. Instead, it is a question of what the accused ought to have understood when s/he acted in the way that s/he did.

When deciding whether NOA ought to have understood the likely consequences of his/her course of conduct, you should consider what a reasonable person ought to have understood in the same circumstances. [1] Ought a reasonable person, in those circumstances, have understood that if s/he acted in the way that NOA did, s/he would be likely to cause NOC harm, or to make him/her feel frightened or apprehensive about his/her own safety or about the safety of someone else? If so, then NOA also ought to have understood that his/her acts would be likely to have that effect.

But it is not enough to decide that the accused ought to have understood that such harm, fear or apprehension would be the likely result of his/her actions. Under the second part of this test, you must also find that the accused’s acts actually physically or mentally harmed NOC, or made NOC feel frightened or apprehensive about his/her own safety or about the safety of someone else.

It is only if you find that NOA both ought to have understood that his/her conduct would have been likely, in the circumstances, to cause NOC harm, fear or apprehension, and that his/her actions actually had that result, that this third way of proving this element will be met.

It is important to remember that these three ways of satisfying this element of the offence are alternatives. You therefore do not need to even consider the question of whether NOA ought to have understood the likely effects of his conduct, and the actual effect his/her conduct had on NOC, if you are satisfied that s/he intended to harm NOC or cause him/her to be frightened or apprehensive, or knew that such harm, fear or apprehension was likely. You only need to be satisfied that one of these three ways of satisfying this element have been proven.

In addition, you do not all need to agree about the particular way in which this element has been satisfied, as long as you all find that it has been proven beyond reasonable doubt.

Remember, though, that if you do rely on the fact that NOA "ought to have understood" that his acts would have been likely to cause NOC harm, fear or apprehension, then you must also find that his/her acts actually had that effect.

[Insert relevant evidence and/or arguments.]

Defence: Official Duties

If the performance of official duties is in issue, add the following shaded section

Even if you find that the prosecution has proved each of the elements of this offence, the accused has a defence to this offence if his/her acts s/he were done while the accused was performing official duties for the purpose of [enforcing the criminal law / administering a law / enforcing a law that imposes a fine / executing a warrant / protecting the public revenue].

In this case, the defence argued that when NOA [insert relevant conduct], s/he was not stalking NOC, but was simply doing what his/her job of [insert relevant ground] required him/her to do.

It is for the prosecution to prove to you, beyond reasonable doubt, that this was not the case. They can do this in two ways.

Firstly, they can prove that the accused’s acts were not part of his/her "official duties". That is, s/he was acting in a way that went beyond what s/he was required to do by his/her job. [2]

Alternatively, the prosecution can prove that the accused did not perform the acts "for the purpose of" [insert relevant ground]. In other words, while in some circumstances the accused may be authorised to act in the way that s/he did, in this particular case the accused was actually acting for reasons other than simply doing his/her job.

In this case, the prosecution argued [summarise prosecution evidence and/or arguments]. The defence responded [summarise defence evidence and/or arguments.]

If you are not satisfied that the prosecution has proved either of these matters, then this defence will be successful and you must find NOA not guilty of stalking. However, if you are satisfied that the accused’s acts were not part of his/her “official duties”, or that the accused did not perform the acts “for the purpose of” [insert relevant ground], and you are satisfied of the other elements, then you may find NOA guilty of stalking.

Defence: Lack of Malice

If the defence of lack of malice is in issue, add the following shaded section

Even if you find that the prosecution has proven each of the elements of this offence, there are certain circumstances in which a person is allowed to commit acts that would otherwise be called "stalking". That is, s/he has a defence to the charge of stalking. [3]

The law states that it is a defence to the charge of stalking if a person can prove that s/he was acting without malice [in the normal course of a lawful business, trade, profession or enterprise / for the purpose of an industrial dispute / for the purpose of engaging in political activities or discussion or communicating with respect to public affairs].

There are two parts to this defence. First, the accused must prove that s/he was acting without malice. That is, s/he was acting without any spite or ill-will towards NOC, and wasn’t intending to cause any harm.

Second, the accused must also prove that s/he was acting [insert relevant ground]. In this case, NOA has argued that when s/he [insert conduct], s/he was not stalking NOC, but was simply [insert evidence, linking it to the relevant ground].

It is NOA who must prove these two matters to you. However, unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – NOA only needs to prove these matters on what is called the "balance of probabilities". That is, s/he needs to prove that it is more probable than not that s/he acted without malice and was acting [insert relevant ground].

If you are satisfied that it is more probable than not that NOA was acting without malice and was acting [insert relevant ground], then this defence will be successful and you must find NOA not guilty of stalking. This will be the case even if you find that each of the elements of the offence have been met.

However, if NOA fails to prove to you either that s/he was acting without malice, or that s/he was acting [insert relevant ground], then the defence fails. If you are also satisfied that each of the elements of the offence have been proven, you should find NOA guilty of stalking.

Evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, for you to find NOA guilty of stalking, the prosecution must prove to you beyond reasonable doubt:

One - That NOA intentionally engaged in a course of conduct that included at least one of the acts specified by the law; and

Two - That NOA acted with the appropriate state of mind. That is:

If the defence of official duties is in issue add the following shaded section

However, even if the prosecution has proved both of these elements to you, NOA will not be guilty unless the prosecution has proved that NOA was not performing official duties for the purpose of [insert relevant ground].

If the defence of acting without malice is in issue, add the following shaded section

However, even if the prosecution has proved both of these elements to you, NOA will not be guilty if s/he has proven that it is more probable than not that s/he acted without malice and acted [insert relevant ground].

If you find that either of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of stalking.

 

Notes

[1] The precise nature of this objective test has not been judicially determined. This paragraph of the charge is based on the assumption that it is appropriate to consider what the reasonable person in the circumstances of the accused ought to have understood.

[2] In some circumstances, it may be necessary for the trial judge to direct the jury about whether the accused reasonably believed s/he was performing his/her official duties.

[3] No cases have yet arisen in relation to this defence (s21A(4A)). This section of the charge is based on the assumption that the accused must prove these matters on the balance of probabilities.

 

Last updated: 24 March 2015

See Also

7.4.12 - Stalking (From 7/6/11)

7.4.12.2 - Checklist: Stalking (From 7/6/11)