Stalking and the law: What are the conditions in proving an offence?

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The offence of stalking can potentially impact a person’s life in unimaginable ways. In addition to the physical aspect of the offence, stalking can also constitute an electronic element as well. Furthermore, similar to other offences, stalking requires a number of elements to be present in order to prove that an offence has been committed.

What elements are involved in stalking?

One of the interesting aspects of the offence of stalking is how it differs slightly depending on the jurisdiction. For instance in Victoria, the offence can be separated in some regards from s 21A of theCrimes Act 1958 (Vic). In Thomas v Campbell (2003) 9 VR 136, Nettle J held (at 149-150; [39]):

“[T]he actus reus of stalking is engaging in a course of conduct that includes acting in a way that could reasonably be expected to arouse apprehension or fear in the victim for his own safety, or that of any other person, where the course of conduct engaged in actually has that effect… The mens rea for stalking is an intention to cause physical or mental harm or of arousing apprehension or fear in the victim for the victim’s own safety or that of any other person.

His Honour went on to outline that the offence consisted of four elements, which are (at 150-151 [42]):

• there must be a course of conduct;
• that course of conduct must involve a protracted act or several acts;
• the accused must have performed the act or acts with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of another person; and
• the course of conduct must have aroused apprehension or fear in the victim or his or her own safety or that of another person. A course of conduct requires a continuity of purpose.

Nettle J in Berlyn v Brouskos (2002) 134 A Crim R 111, noted that s 21A of the Crimes Act 1958 (Vic) is in some respects more limited than other stalking laws in other jurisdictions due to the fact that it (at 117 [24]) “speaks only in terms of proscribed conduct on at least two occasions, or on one, as in New South Wales, without the requirement of a course of conduct evidencing a continuity of purpose.”

Generally speaking when proving an offence of stalking, the criminal standard of proof is applicable – that being the acts of stalking is proven beyond reasonable doubt.

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