Prosecuting Stalking Fiona Gray Trial Advocate Office of the Director of Public Prosecutions (NSW)

Prosecuting Stalking General history of the law regarding stalking History of the law regarding stalking in NSW Recent changes to the law regarding stalking in NSW Prosecuting stalking

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

Prosecuting stalking 1. History of the law regarding stalking in NSW In 1982 legislation was enacted to enable domestic violence orders to be obtained. Limited to those in a married or de facto relationship Later expanded to include former partners and relatives In 1989 legislation was passed to enable AVO’s to be obtained by any individual. That is, they were not relationship based.

Prosecuting stalking Stalking was not a separate offence in NSW until the enactment of s562AB of the Crimes Act 1900 on 19 December 1993.

Prosecuting stalking 562AB   Stalking, intimidation with intent to cause fear for personal safety (1)    A person who stalks or intimidates another person with whom he or she has a domestic relationship with the intention of causing the other person to fear personal injury is liable, on conviction before a Magistrate, to imprisonment for 2 years, or to a fine of 50 penalty units, or both. (2)    For the purposes of this section, causing a person to fear personal injury includes causing the person to fear personal injury to 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 personal injury if he or she knows that the conduct is likely to cause fear in the other person. (4)    For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared personal injury.

Prosecuting stalking Section 562AB was amended on 23 December 1994. The amendment removed the restriction contained in subsection 1 that the parties had to be in a domestic relationship. The penalty was increased from 2 years to 5 years. The offence was no longer a summary offence, but could also be dealt with on indictment in the District Court.

Prosecuting stalking The new s562AB(1) was as follows: (1)    A person who stalks or intimidates another person with the intention of causing the other person to fear personal injury is liable, on conviction before a Magistrate, to imprisonment for 5 years, or to a fine of 50 penalty units, or both.

Prosecuting stalking Recent changes and the current law On 10 March 2008 the Crimes (Domestic and Personal Violence) Act 1997 came into effect. The Act moved a number of offences which had previously been listed in the Crimes Act into a separate new Act. The Act deals principally with domestic violence offences and apprehended domestic or personal violence orders.

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

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

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

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

Section 8 contains the definition of stalking: Prosecuting stalking Section 8 contains the definition of stalking: Meaning of “stalking” (1)    In this Act, “stalking” includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity. (2)    For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

Prosecuting stalking Section 8(1) is the same definition of stalking used since the enactment of the first stalking provision in 1993 Section 8(2) provides a basis for the court to take into account a pattern of violence. This is a new provision.

Prosecuting stalking The offence provision is contained in s13, which states: Stalking or intimidation with intent to cause fear of physical or mental harm (1)    A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2)    For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

Prosecuting stalking Section 13 (3)    For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4)    For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

Prosecuting stalking What it is that the Prosecution must prove beyond a reasonable doubt 1.The accused stalked the victim; 2.That stalking was done with the intent to cause fear of physical or mental harm to the victim or to a person with whom the victim has a domestic relationship.

Prosecuting stalking Complaint is made to police and the matter is investigated. If there is sufficient evidence, then the accused is charged, or issued a court attendance notice to attend court on a particular day.

Prosecuting stalking If there are strictly indictable charges associated with the stalking charge, then the matter is automatically referred to the Office of the Director of Public Prosecutions (‘ODPP’) for prosecution. If there are no strictly indictable charges, then the Police Prosecutor will review the matter and consider whether it ought to be referred to the ODPP for prosecuting.

Prosecuting stalking The ODPP will assess whether there is sufficient sentencing scope in the Local Court to reflect the objective seriousness of the matter and the subjective factors associated with the accused, including an assessment of their criminal record and prior offences.

Prosecuting stalking If the matter is dealt with in the Local Court – If the plea is not guilty – it will be listed for a hearing conducted by the Police Prosecutor. If the plea is guilty then the accused is sentenced by the Magistrate.

Prosecuting stalking If the matter is dealt with on indictment, then it will be listed for a committal hearing at the local court. Usually the brief of evidence (statements etc) is tendered and the Magistrate makes a determination as to whether there is enough evidence to satisfy a jury beyond reasonable doubt in relation to the offence. The matter is committed for trial to the District Court

Prosecuting stalking The accused is arraigned on the indictment and if they plead not guilty, the matter is listed for trial. If they plea guilty, they are sentenced.

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

Sentencing statistics Prosecuting stalking Sentencing statistics

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