Stalkees Strike Back - the Stalkers Stalked: A
Review of the First Two Years of Stalking Legislation
in Queensland
R A Swanwick
B v Sc (Qld); M Sc (Guelph); LLB (Qld). Barrister at Law, Office of the Director of
Public Prosecutions (Qld), Brisbane.
Introduction
The defmition of the crime of 'stalking' has been variously described as:
[A] generic term . . . which collectively describes a wide variety of fact situations where one
person may follow, contact, put under surveillance, or otherwise harass or intimidate a second
person, but stops short of committing an offence against that person or his or her property; 1
[A] slow, sinister, persistent and possibly lethal pursuit;2 .
[A] niche of anti-social, threatening course of behaviour
where one person causes another a
degree of fear or trepidation by behaviour which on the surface is innocent but which, taken in
context, assumes a more threatening significance. 3
Each adds to the sum total of understanding of this word and the offence it describes.
The offence and its criminality are unusual in ts.;at often no physical elements are
present, only mental elements, and render liable to criminal sanction activities which on
the surface are innocuous and commonplace but which, when constituting a course of
conduct and with the necessary intent, form the basis of the criminal offence. It is,
therefore, a difficult offence for which to legislate. Existing criminal sanctions have not
proved adequate to provide redress or protection against the activities which constituted
stalking.
Modem stalking legislation originated in the United States of America. Beginning in
California in 1990 and spreading rapidly to other States, in general terms it criminalises
the intentional and repeated following or harassment of another person and the making of
credible threats with intent to place that person in reasonable fear of death or bodily harm. 4
It appears that although domestic violence ;has featured largely in these initiatives, the
original motivation was probably the stalking of celebrities by crazed fans. It has been
reported that 35% of the work of the relevant unit of the Los Angeles Police Department
is celebrity based. 5 Canada introduced its stalking legislation, s 264 of the Canadian
Criminal Code, on 1 August, 1993 and is similar in most respects to that of the American
States.
On 23 November 1993, the Queensland Criminal Code was amended by the insertion
of ss 359A and 359B to provide protection and redress to persons subjected to the practice
of 'stalking'. Previously, the provisions of the Criminal Code were too broad to apply to
the variety of circumstances known collectively as 'stalking' and now encompassed by the
new sections, because they could only' be used where violence was threatened in specified
2
3
4
5
Hon D M Wells, Minister for Justice and Attorney-General and Minister for the Arts, Queensland Legislative
Assembly, Parliamentary Debates (Hansard), 9 November 1993, 5473.
R Evans, 'Every Step You Take' (1994) 68 Law Institute Joumall021.
M Goode, 'Stalking: Crime of the Nineties?' (1995) 19 Criminal Law Journal 21.
Evans, supra, note 2, 1021.
See C Perez, 'Stalking: When does Obsession become a Crime?' (1993) 20 American Journal of Criminal Law
263,272.
Stalkees Strike Back -
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27
circumstances, eg forcible entry, threatening violence, written threats to murder. The acts
which constituted stalking were regarded merely as precursors to the ultimate offence as
contained in the Criminal Code and not as offences in their own right. Protection from
domestic violence especially, was not adequately covered by any sections of the Code.
The gap between available sanctions in the Magistrates Court, which were often ineffective,
and the sanctions for the major offences in the Criminal Code was too wide. It is thought
that the introduction of this legislation was widely welcomed, if not actually initiated by
the concerns of women's groups and the victims of domestic violence.
Stalking, as it is understood today, is a relatively new concept in society and legislation
to criminalise it even more so. Whilst most commentators have acknowledged the necessity
for and role of such legislation, they have been equally concerned about the perceived
imperfections of what has been either passed or proposed to date. Of special concern is
the breadth and vagueness of defmition of the offence, the role of the element of intent,
the risk of 'overbreadth', and its practical application, with associated implications for the
innocent. 6 All Australian States and the Northern Territory now have legislation in place.
This paper is in part a survey of the results of the practical implementation of stalking
legislation in the frrst two years of its operation in the justice system in Queensland and
is the fIrst such survey undertaken. It is limited to a review of those cases committed to,
and subsequently dealt with in, the District Court of Queensland. Base statistics only are
presented for those cases heard summarily in the Magistrates Court.
Stalking legislation in general is then discussed and the review used to determine to
what extent the fears, anxieties and predictions of earlier commentators about the
imperfections of stalking legislation have been realised by the Queensland experience. As
Queensland has dealt with many more cases than any other State, the experience,
developments and operation of the legislation in this State should be of considerable
interest to other Australian jurisdictions.
Criminal Code of Queensland: stalking offences in sections 359A and
3598
Elements in Summary
Section 359A
The elements of the offence created by this section are as follows (author's italics):
ss (2)(a) Stalking occurs if the fIrst person engages in a course of conduct involving
doing a 'concerning act' on at least two separate occasions, to another person
or other persons (whether the second person, another person or others); and
ss (2)(b) the fIrst person intends the second person to be aware that the course ofconduct
is directed at the second person, even if the concerning acts or particular
concerning acts are done to, or to the property of, a person other than the second
person, and
ss (2)(c) the second person is aware that the course of conduct is directed at the second
person; and
ss (2)(d) the course of conduct would cause a reasonable person in the second person's
circumstances to believe that an offensive act (a 'concerning offensive act') is
likely to happen.
ss (3)
For the purpose of ss (2)(d) the second person's circumstances',are those known
or foreseen by the fIrst person and those reasonably foreseeable by the offender.
6
D Wiener, 'Stalking: Criminal responsibility and the infliction of harm' (1995) 69 /..o,w Institute Journal 30;
Evans, supra note 2, 1023; Goode, supra note 3, 24-31.
~(
RA Swanwick
28
ss (4)
ss (6)
ss (7)
It is a defence to a charge under this section to prove that the course of conduct
was engaged in for the purposes of genuine
(a) industrial dispute; or
(b) political or other public dispute or issue carried on in the public interest.
Unlawful stalking is a crime for which the fITst person is liable to a maximum
~nal~of,
(a) imprisonment for 5 years if, for any of the concerning acts constituting the
offence, the fIrst person(i) unlawfully uses or threatens to use unlawful violence against another
~rson or another person's property; or
(ii) has possession of a weapon within the meaning of the Weapons Act
1990 or
(iii) contravenes an injunction or order imposed or made by a Court under
a law of the State, the Commonwealth, another State or Territory or
threatens this; or
(b) imprisonment for 3 years in any other case.
This subsection lists acts which can constitute a 'concerning act' or 'concerning
offensive act' and is not reproduced in full. A 'concerning act' can include
following, loitering near, telephoning, watching, leaving offensive material,
harassment, intimidation etc. A 'concerning offensive act', in general, means an
unlawful act of violence against the second person's person or property, or a
person other than the second person about whom the second person has close
concerns.
Section 359B
This section is not reproduced in full but in general permits an indictable offence of stalking
to be dealt with summarily at the election of the defendant unless there is a circumstance
of aggravation. The maximum penalty for a summary conviction is eighteen months
imprisonment.
The Elements as Judicially Interpreted
The Court of Appeal has so far not ruled on any of the elements which constitute the
section and such analyses as have occurred have been by trial and sentencing judges.
Drafting
There has been judicial criticism of the convoluted language and construction in the
drafting of the section and the incomprehensibility of the 'plain English' style of drafting. 7
The terms 'accused' and 'offender' have been pronounced as more convenient than 'frrst
person', and 'complainant' preferable to 'second person'. Elements which have received
judicial attention are discussed below.
Sub-section (2)(a)
Although the course ofconduct requires at least two separate concerning acts as a necessary
element of the offence, it does not follow that the presence of two concerning acts
necessarily proves the offence. It still has to be proved to the satisfaction of the jury. 8
7
8
The Queen v Ryder (1995) (unreported, District Court Townsville, Trafford-Walker Sl, 15/3/95, transcript at 7,
116); The Queen v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCI, 1915194, transcript, 54).
The Queen v Monaghan (1995) (unreported, District Court Brisbane, Pratt DCJ, 3/3/95, transcript, 116-117).
\
Stalkees Strike Back -
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The term 'course of conduct' is not defmed in the legislation. However the expression
implies some degree of continuity and not one or two isolated incidents.
Subsections (2)(b) and (2)(c)
The element of intent is usually an essential element of criminal responsibility, eg s 23 of
the Criminal Code. Here the intent is confmed to the frrst person's intent that the second
person be aware that the course of conduct is directed towards him or her and nothing
else.
Senior Judge Trafford-Walker has commented that there would have to be at least an
inference of the intent drawn from the evidence to establish this element and this was a
subjective test. 9 This would appear to mean that under ss (2)(b) no matter how vigorously
a stalker is stalking his victim, if the victim is unaware that the stalker's course of conduct
is directed towards him or her, then the element will not have been made out. Conversely
though, it would appear that no matter how much the 'victim' is affected by the stalker's
course of conduct, unless the stalker intends that the victim be aware that it is directed
towards him or her, the element will also not have been made out.
In The Queen v Maniadis lo , the accused was indicted on three counts of stalking against
a girl and her two parents. The accused's course of conduct was directed mainly against
the two parents (counts 1 and 2) even though his ultimate target might arguably have been
their daughter (count 3), thereby satisfying the requirements of the second limb of ss (2)(b).
It was, however, the weakest of the three counts because it was not clear that the accused
intended that their daughter be aware that his course of conduct was directed against her
and was ultimately dropped when he pleaded 'guilty' to the other two counts.
Subsections (2)(d) and (3)
These sub-sections operate together and are those which have received the most judicial
attention.
Threshold test
There must be some evidence upon which a jury could fmd that a concerning act had
occurred. In three cases, viz, driving past the complainant's workplace, II waiting on the
footpath outside a city theatre,12 and making phone calls in a pseudo-Italian accent, 13 the
Crown was unable to particularise an act that would have caused a reasonable person to
believe that an act of violence was likely against the complainant or her property and in
the frrst two instances a nolle prosequi was entered and in the third instance the particular
act was ruled by the judge not to be a concerning act.
Reasonable person test
Although initially this was thought to be an objective test,14 it is now considered to be a
combination objective/subjective test. 15 Senior Judge Trafford-Walker said that it is
subjective from the accused's point of view pursuant to ss (3). He said:
In determining what a reasonable person would apprehend there are ttu:ee matters to consider.
The first is that a reasonable person is presumed to have knowledge which the accused (actually)
9
10
11
12
13
14
15
The Queen v Ryder (1995) (unreported, District Court Townsville, Trafford-Walker DCJ, 15/3/95, transcript 6,
114-115).
The Queen v Maniadis (1995) (unreported, District Court Ipswich, Howell DCJ, 17/11/95). '
The Queen v Williams (1995) (unreported, District Court Brisbane, Copley ADCJ t 15/5/95, transcript, 13, 24).
The Queen v Ryder (1995) (unreported, Trafford-Walker SJ, 15/3/95, transcript 19-21, 121).
The Queen v Ryan (1995) (unreported, District Court Cairns, White DCJ; 30/1/95, transcript, 28).
The v v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCJ, 19/5/94, transcript, 54).
The Queen v Clarke (1995) (unreported, District Court Ipswich, Robertson DCJ, 27/2195), transcript, 7); The
Queen v Ryder (1995) (unreported, District Court Townsville, Trafford-Walker SJ, transcript, 114).
30
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has of the complainant's circumstances or (secondly) he's presumed to have knowledge of the
victim's circumstances as actually foreseen by the accused, and it seems thirdly that the reasonable
person is presumed to have knowledge of the victim's circumstances which are reasonably
foreseeable by a person in the accused's position.
The author interprets this as meaning that points one and two are subjective and point
three is objective.
His Honour Judge Dodds ruled as admissible evidence of acts of violence against the
complainant prior to the indicted period of stalking in order to establish the elements in
ss (2)(d) and (3) that the complainant's circumstances were such that she could have held
a reasonable apprehension of an act of violence against her. The Crown Prosecutor argued
successfully that without evidence of that background of previous violence against the
complainant, the jury might be unable to be satisfied of the reasonableness of her
apprehension of violence from the acts of stalking. 16
Actual fear or no actual fear - the unusually timid person and the unusually robust
person
His Honour Judge Robertson suggested that it was probably right that it was not necessary
that the complainant had been actually in fear, it was a question of whether it was
..
reasonable to have been in fear. 17
By contrast, his Honour Judge White doubted whether the offence of stalking could be
made out if the victim was not actually intimidated. However, the victim's merely saying
that she was frightened of an assault was enough. That constituted evidence for a jury to
decide. i8 He thought that ss (2)(d) would require the second person to believe that an
offensive act was likely to happen and then it was for the jury to assess that objectively.
The author prefers the objective test of Robertson DCJ. Sub-sections (2)(d) and (3)
contain no requirement for a subjective element of actual fear, just the reasonable person
test. This would rule out an unusually robust and fearless person on the one hand or an
unusually timid or supersensitive person on the other hand. 19 The issue remains open.
In New South Wales the Crown does not need to prove that the victim was actually
in fear but in Victoria it is a necessary element of the offence.
More than mere nuisance
His Honour Judge White has concluded that there must be evidence before the jury that
the accused was doing more than merely making a nuisance of himself. The section was
not designed to deal with mere nuisance. There had to be an actual offence committed. It
could be difficult distinguishing between the two. 20
Actual or implied threat of violence
His Honour Judge White commented:
[1]t would be absurd to suggest that before anyone can be convicted of stalking there has got to
be an actual threatened act of violence to either the property or the person, either by act or
conduct. The section is designed to get in first to try to skirt it off, but there must be - there
must obviously be an implied threat of violence or damage to property otherwise how can a jury
find that such - that a reasonable person would conclude that such an act was likely. The
threshold question is, there's got to be some evidence from which a jury properly instructed as
Queen v Irwin (1995) (unreported, District Court Maroochydore, Dodds DCI; 4/12/95, transcript, 5-10).
Queen v Clarke (1995) (unreported, District Court Ipswich, Robertson DCJ; 27/2/95; transcript, 8).
Queen v Ryan (1995) (unreported, District Court Cairns, White DCI; 30/1/95, transcript, 20-25, 82).
Queen v Ryder (1995) (unreported, District Court Townsville, Trafford-Walker Sl, 15/3/95, transcript 15-18,
117); The Queen v Ryan (1995) (unreported, District Court Cairns, White DCI; 30/1/95, transcript, 20-22).
The Queen v Ryan (1995) (unreported, District Court Cairns, White DCI; 30/1/95, transcript, 22, 27-28).
16 The
17 The
18 The
19 The
20
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to what 'likely' means, could draw the necessary inference. It doesn't rest on the intention of the
alleged offender. 21
The offence was to counter '(making) people fearful for their own safety. Even if there
was never any actual intention to do any harm. That is precisely what this law has been
designed to prevent.'22
His Honour Judge McGuire also stated that 'actual violence is not the essence of the
charge; it is the fear of violence and the apprehension of being pursued when that attention
is not wanted and that fact is made known to the stalker'.23
Time limit offear
His Honour Senior Judge Trafford-Walker stated that in relation to when and at what time
the fear or apprehension must have arisen in the mind of the victim, the fear did not have
to be immediate fear (eg, from a long distance phone call) but it must have arisen at least
after two concerning acts and must have been there by the time of the last concerning act.
If it was not there by then, then the offence had not been made OUt. 24 It appears from this
that there is no time limit on the continuity of fear.
Sub-section (7) 'concerning act'
His Honour Judge Robertson remarked that the definition of 'concerning act' seemed to
cover almost every known act of human behaviour. 25 This sentiment is reflected in the
broad range of examples in ss (7) and in those mentioned below.
Indictment
His Honour Judge Howell suggested that circumstances of aggravation should be drafted
on the indictment as follows: 'And further that at the time of four of the concerning acts,
namely on (date), at (place), (accused) threatened to use unlawful violence against
(complainant)' .26
Queensland District Court and Magistrates Court data
In the fIrst two years of operation 175 cases of stalking have passed through Queensland's
twelve CRS Magistrates Courts. Of these 175 cases, 73 have been heard summarily in the
Magistrates Court. Twenty-five of these were proved and the other 48 were either
dismissed, discharged or struck out. Seventy-four cases have been committed to the District
Court. Of the 74 cases committed to the District Court, the author is aware of 43 cases
which have been completed. It is the data from these 43 cases which is analysed and
described.
Analysis of the Queensland results
Profile of the 'typical'stalker
It is universally accepted that there is no 'typical' stalker. He or she is very often the
survivor of a broken relationship but can often be a neighbour, acquaintance, fellow
21
22
23
t
I,
24
25
26
The Queen v Ryan (1995) (unreported, District Court Cairns, White DC]; 3011/95, transcript, 11, 15).
The Queen v Creed (1994) (unreported District Court Cairns, White DC]; 15/12/94, transcript sentencing remarks,
2).
'
The Queen v Perez (1995) (unreported District Court Brisbane, McGuire DCI; 24/8195, transcript sentencing
remarks, 2).
The Queen v Ryder (1995) (unreported, District Court Townsville, Trafford-Walker 5J, 15/3/95, transcript,
117-120).
The Queen v Clarke (1995) (unreported, District Court Ipswich, Robertson DCJ; 27/2/95; transcript, 10).
The Queen v Maniadis (1995) (unreported, District Court Ipswich, Howell DCI, 17/11/95).
32
R A Swanwick
employee or complete stranger to the victim. 27 The results in Queensland to date tend to
confrrm this general pattern.
Origins of stalkers
Broken relationships have constituted the largest category amongst stalkers, 25, with 13
cases being from a former conjugal relationship (spouse, de facto) with an age range of
23-60 years and an average age of 40 years and 12 from a non-conjugal relationship
(boyfriend or girlfriend) with offenders aged between 16-51 years and an average age of
29.5 years but with most being younger than 25. There have been six cases arising from
the workplace or school, three strangers28 and one of these arguably also fell into the
celebrity category.29
Unusual cases
The following cases can be regarded as unusual and/or noteworthy as representing the
wide variety of stalking situations.
* A hotel patron who developed an obsession with the barmaid.30
* A broken homosexual relationship.31
* An eighteen year old male who developed an obsession with a policewoman who had
posed as a jogger on the streets of Brisbane in order to capture a sexual molester and
whose attractive photo appeared in the Sunday papers in an article commending her
on her unusual and' courageous assignment.32
* Yugoslavian parents who stalked and threatened their twenty-one and eighteen year
old daughters who had left home after being subjected to abuse and who were unable
to abide by 'house rules'. The parents claimed that in Yugoslavian culture a daughter
who moved away from home before she married brought shame upon the family.33
* A besotted male high school student who stalked and harassed a fellow female student
with whom there was no relationship.34
* A fourteen year old pupil who stalked her teacher.35
*
A man who set up 'home' in the ceiling of his ex-de facto's home unit, tapped into
her telephone lines and drilled observation holes through the ceiling above her bed and
shower cubicle. He gained access via the manhole in the vacant adjacent unit and by
knocking a hole in the solid brick dividing wall between the two apartments in the
ceiling.36
27 Evans, supra note 2, 1021.
28 The Queen v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCI, 19/5/94, transcript, 54); The Queen
v Westrup (1994) (unreported, District Court Brisbane, Robertson DCJ; 11111194); The Queen v Maniadis (1995)
(unreported District Court Ipswich, Howell DCI, 17111/95).
29 The Queen v Westrup (1994) (unreported, District Court Brisbane, Robertson DCI; 11/11/94).
30 The Queen v Brooks (1994) (unreported, District Court Townsville, O'Brien DCJ; 11/11194).
31 The Queen v Reid (1994) (unreported District Court Brisbane, McLauchlan DCI; '119/94).
32 The Queen v Westrup (1994) (unreported, District Court Brisbane, Robertson DCJ; 11/11/94).
33 The Queen v Masonicic and Masonicic (1995) (unreported, District Court Brisbane, Boyce DCJ; 31'1195).
34 The Queen v Cooper (1995) (unreported, District Court Brisbane, Kimmins DCJ; 3113/95); The Queen v Grice
(1995) (unreported, District Court Brisbane, Boyce DCI; 30/1195).
35 The Queen v M (a Minor) (1995) (unreported, District Court Ipswich, Howell DCI; 17/3/95).
36 The Queen v Irwin (1995) (unreported, District Court Maroochydore, Dodds DCJ; 4/1'1195, transcript, 10).
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Gender
The results show that stalking is overwhelmingly an offence by men directed against
women with all but four victims being female. 37 Only two females were stalkers
themselves. 38
Age
The ages of stalkers were fairly evenly spread with the most numerous age category being
the 14-24 age group with 17, which indicates that the largest single category of stalker is
the adolescentlbroken relationship category. Two or three of the work/school category also
involved young adolescents which reinforces this impression. There were 12 cases in the
25-40 year category and 14 in the 41 + age group.
Aggravated stalkings
The majority of stalking charges (30) were of the aggravated variety with most causes of
aggravation being the breach of a domestic violence order or other court restraining order,
or from threatening violence to the victim. It is easy to make a threat in an emotional
encounter and this aspect of human nature accou~ts for many cases of what would
otherwise be stalking simpliciter. Six accused were charged with another offence
concurrently and eight only were charged with stalking simpliciter.
Duration and persistence
The duration of stalking varied from a few days to over one year and often depended on
how long it took for the victim to lodge a complaint with the police.
Of far greater significance are the 23 instances where the stalker persisted after he or
she had been arrested and charged or in some other way restrained. One stalker even
persisted after his committal.39
In the author's opinion this factor should be a predominant sentencing consideration as
it constitutes the best indication of the offender's intent and potential for danger, or
alternatively of his realisation of having offended and resolve to desist. Some support for
this view comes from both the Court of Appeal and sentencing judges.40
IConcerning acts' and Iconcerning offensive acts'
'Concerning offensive acts' were committed in 25 cases and involved both injury to the
person and/or damage to property. 'Numerous' 'concerning acts', arbitrarily defined as in
excess of 10-15 separate acts, occurred in 31 cases. Some cases involved in excess of 150
separate 'concerning- acts', usually involving multiple phone calls. Indictments often
contained only the bare two 'concerning acts' necessary to prove the charge or only the
most prominent.
Unusual concerning acts
A wide range of activities, many of them quite innocent when taken in isolation and out
of context are listed in s 359A(7) as constituting a 'concerning act'. However it is also
acknowledged that the only limitation on what could constitute a 'concerning act' is the
37
The Queen v Reid (1994) (unreported, District Court Brisbane, McLauchlan DCI; 'lJ9/94); The Queen v Horvat
(1995) (unreported, District Court Southport, Hanger DCJ; 611195); The Queen v Patterson (1995) (unreported,
District Court Brisbane, Pratt DCJ; 20/11195); The Queen v Maniadis (1995) (unreported, District Court Ipswich,
Howell DCJ; 17/11195).
38 The Queen v Saunders (1995) (unreported, District Court Ipswich, Robertson DCJ; 9/6195); The Queen v M (a
Minor) (1995) (unreported, District Court Ipswich, Howell DCJ; 17/3/95).
39 The Queen v Westrup (1994) (unreported, District Court Brisbane, Robertson DCI; 11/11/94).
40 The Queen v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCJ; transcript, 61); The Queen v Kyriakou
(1994) Court of Appeal No 216 of 1994 Brisbane, 1619/94, 10); The Queen v Creed (1994) (unreported, District
Court Cairns, White DCJ; 15/12/94, transcript sentencing remarks, 2).
34
RA Swanwick
limit of human imagination and that they cover almost every known act of human
behaviour.41 Some of the more bizarre acts deemed 'concerning acts' by the District Court
and not specifically listed in the section are as follows:
* Sending a pair of swimming togs to the complainant stained in the crotch area with
seminal fluid. 42
* Leaving semen smeared over the door of the complainant's bedroom.43
* Leaving a note to the effect that the complainant was not a virgin on the windscreen
of the complainant's parents' car.44
* Incorrectly telling complainant that he (the accused) had AIDS and that he had given
it to her. 45
* Searching complainant's school bag, collecting hair from complainant's hair brush,
licking her apple and sniffing the crotch of her running pants. 46
* Bugging the school counsellor's room to hear conversations with complainant, and
trying to bug telecom lines leading to complainant's hOllse.47
* School girl accused; together with friends, singing a mocking song about complainant
teacher. 48
* Leaving photographs of naked ex-wife at her workplace so that fellow workers would
find them before she arrived at work. 49
* Erecting posters of naked ex-girl friend in a city malL50
* Killing victim's garden plants.51
* Switching off the power to the complainant's home at night. 52
* Searching through complainant's rubbish bins.53
* Drilling observation holes through the ceiling of ex-de facto's home unit. 54
Criminal history
Twenty-seven offenders had previous criminal histories but in only fourteen cases were
there previous acts of violence which therefore might have contained predictions of future
stalking offences. Accused stalkers with criminal histories which hint at psychiatric
illnesses should, it is submitted, be examined very carefully.
Psychiatric, psychological and medical factors
It is notoriously difficult to distinguish between psychiatric and psychological conditions
as the tenns are often interchanged. In psychiatric practice the distinction is becoming
increasingly blurred. The psychiatric literature describes at least two systems for
categorising stalkers but warns that such stereotyping may be misleading. Reference is
made to one categorisation by Dr Debra Keenahan. 55
41
42
43
44
45
46
47
48
49
50
51
52
53 54
55
Goode, supra note 3, 25; The Queen v Clarke (1995) (unreported, District Court Ipswich, Robertson DCJ;
27/2/95, transcript, 10).
The Queen v Cooper (1995) (unreported, District Court Brisbane, Kimmins DCJ; 31/3/95).
Ibid
The Queen v La Spina (1995) (unreported, District Court Brisbane, McLauchlan DCJ; 20/1/95).
Ibid
The Queen v Grice (1995) (unreported, District Court Brisbane, Boyce DCJ; 30/1/95).
Ibid
The Queen v M (a Minor) (1995) (unreported, District Court Ipswich, Howell DCI; 17/3/95).
The Queen v Pannam (1995) (unreported, District Court Brisbane, Kimmins DCJ; 2/6/95).
The Queen v Dowrick (1995) (unreported, District Court Rockhampton, Nase DCJ; 25/5/95).
The Queen v Brown (1995) (unreported, District Court Townsville, Trafford-Walker SJ; 15/3/95).
The Queen v Creed (1994) (unreported, District Court Cairns, White DCJ; 15/12/94).
The Queen v Gibson (1995) (unreported, District Court Brisbane, Pratt DCJ; 6/9/95).
The Queen v Irwin (1995) (unreported, District Court Maroochydore, Dodds DCJ; 4/12'95).
Evans, supra, note 2, 1021.
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Only one offender .in Queensland, Torrisi,56 had a diagnosed mental illness,
schizophrenia, although there was a strong suspicion about another. 57 Significantly,
perhaps, these are the only known re-offenders to date, both apparently re-offending against
their original victims.
Torrisi suffered from medium grade schizophrenia but always responded well to
medication. His re-offence occurred when he was not on his full medication and was also
suffering from residual paranoia. The Mental Health Tribunal declared him unfit to stand
trial. The case involved unresolved conflict and resentment towards his former wife and
her new husband and the loss of his family and estrangement from his children. These are
the issues which motivate many a mentally 'normal' person to offend and the question
remains whether in this case the stalking and the re-stalking were due primarily to the
mental illness or to the unresolved conflict with the mental illness being merely secondary.
Knight,58 pleaded guilty to his re-offence and was sentenced to imprisonment and
ordered to undergo psychiatric treatment and to be closely monitored by police upon his
release. Many offenders had psychological disturbances including personality disorders,
adjustment disorders, attention deficit disorders, paranoia, depression, suicidal tendencies,
alcoholism and drug addiction or had undergone some form of psychiatric treatment.
Importantly, although nearly half the offenders had some sort of psychological disturbance
and were therefore 'abnormal' only one or perhaps two were 'mentally ill'.
It is suggested that the mental health of stalkers ought to be examined more closely. A
recent study of fourteen forensic psychiatric patients, all stalkers, in Victorian mental
institutions, identified a sub-group of the 'erotomanic' category.59 This sub-group,
especially the males, was identified as being potentially dangerous and aggressive towards
their 'beloved' and those who stood between them.
Ironically, except in Queensland, this group would not have been covered by stalking
legislation because of the requirement for an intent to cause physical or mental injury.
Initially at least, the intent of these individuals was not malicious: they were attempting
to express their love and affection. The majority of these patients responded well to
treatment so that penal responses were often considered inappropriate for this sub-group.
A mandatory pre-sentence psychiatric report might be a prudent practice for the courts
to adopt in order to identify any members of this sub-group and so that appropriate penal
and/or treatment responses may be imposed at sentence.
Victim impact
The impact of stalking on the victims varies in severity and is very subjective, making it
difficult to measure objectively. This makes the application of s 9(2)(c) of the Penalties
and Sentences Act 1992 (Qld) (severity of impact upon victim) difficult. The remarks of
his Honour Judge Pratt are universally applicable:
Now, this offence of stalking can involve a severe degree of emotional and psychological trauma
to the victim of the stalking whatever the state of mind of the stalker might be ... It amounts to
a subtle form of violation which adversely affects and is designed to affect the personality of the
victim ... The mental consequences can be severe and they can lead in that sense to physical
damage . . . At the heart of the offence of stalking is the desire to subjugate the victim. 60
56
57
58
59
60
The Queen v Torrisi (1994) (unreported, District Court Townsville, O'Brien DCJ; 7/9/94).
The Queen v Knight (1995) (unreported, District Court Brisbane, Hoath DCI; 12/5/95).
The Queen v Knight (1996) (unreported, District Court Brisbane, O'Sullivan DCJ; 24/4/96).
P E Mullen and M Pathe, 'Stalking and the Pathologies of Love' (1994) 28 Australian and New Zealand Journal
of Psychiatry 469-477.
The Queen v Wilson (1994) (unreported, District Court Brisbane, Pratt DCJ; 1619/94, transcript sentencing remarks,
2).
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The impact on a victim when viewed by a third party, calmly and objectively with the
benefit of hindsight and with all the relevant information, often appears much less than
when viewed subjectively during the stalking period by the victim who does not have
those advantages. Victims experience an escalating fear and fear of the unknown is often
the worst aspect especially when a sudden appearance of the stalker reveals a knowledge
of the victim's plans and movements which they had believed to be confidential. They
curtail their lives, give up social and work activities, change addresses, towns and even
countries in order to escape the merciless harassment and pursuit.61 Symptoms similar to
post-traumatic stress disorder are common. 62 Threat often lies in mere omnipresence. 63
The experience of Queensland DPP staff in dealing with complainants is that they often
exhibit feelings of hopelessness, despair and pessimism about the 'system's' inability to
resolve their problems. In Queensland, prior to the introduction of stalking laws, one
particularly persistent and intrusive female stalker was eventually killed by her tormented
victim.64
Reference has already been made to the unusually timid or unusually fearless 'victims'
as possibly lying outside the 'reasonable person test'.6S The following cases illustrate some
of the above points.
In The Queen v Kyriakou,66 the judge was satisfied that the complainant had been
fearful and terrified even though, as is now known, the actions of the hannless socially
inept stranger/stalker were nothing more than an elaborate though primitive courtship
display.
In The Queen v Cook,67 the defendant was an eccentric tragic figure, more of a danger
to himself than to anyone else and his actions were more of a .cry for help than a threat
to anyone. The complainant who had worked with him for fifteen years, might arguably,
objectively have known this and yet suffered genuinely and severely.
The victim in The Queen v Westrup,68 was a policewoman and the defendant an
eighteen year old stranger/admirer. She suffered severe personal anxiety and emotional
distress after each event. She was concerned that the defendant might be watching her and
may have the ability to carry out his threats against her personal safety. She felt insecure
even in her own police station.
It is remarkable that this effect was suffered by a trained professional police officer
who had the nerve and courage to act as bait on the streets to catch a molester but was
then severely unsettled by the attentions of a probably hannless besotted teenager. This
illustrates that the unseen and unknown menace is far more potent than the known danger.
In the adolescent schoolboy obsession cases,69 the female victim suffered the usual fear
and anxiety and curtailed her social life. In each case the victim's school work suffered
severely and in at least one case she failed to obtain entry to a University course which
she was confidently predicted to achieve prior to the commencement of the defendant's
attention.
In The Queen v M,70 the actions of a mere fourteen year old pupil inflicted very severe
mental trauma upon her adult school teacher.
Mullen and Pathe, supra note 59, 472, 475.
Weiner supra note 6, 31-32.
Goode, supra note 3, 26.
64 The Queen v Dunning (1989) Queensland Court of Criminal Appeal CA No 44 of 1989.
65 The Queen v Ryder (1995) (unreported, District Court Townsville, Trafford-Walker SJ, 15/3/95, transcript,
15-18, 117); The Queen v Ryan (1995) (unreported, District Court Cairns, White DCJ; transcript, 20-22).
66 The Queen v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCJ; 19/5/94, transcript, 64).
67 The Queen v Cook (1994) (unreported, District Court Brisbane, McGuire DCJ, 4/11/94).
68 The Queen v Westrup (1994) (unreported, District Court Brisbane, Robertson DCJ; 11/11/94).
69 The Queen v Cooper (1995) (unreported, District Court Brisbane, Kimmins DCJ; 31/3/95); The Queen v Grice
(1995) (unreported, District Court Brisbane, Boyce DCJ; 3011/95).
70 The Queen v M (a Minor) (1995) (unreported, District Court Ipswich, Howell DCJ; 17/3/95).
61
62
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In the case of Knight,7l the teenage complainant provided a harrowing account of
constant fear, trepidation, apprehension, adverse effects to health, work and study and
severe disruption to her lifestyle and that of her family during both offending periods by
her stranger/stalker.
Pleas of 'guilty'
By far the majority of accused have pleaded guilty to their offences. Only eight have
pleaded not guilty and gone to trial. Of these, three were convicted,72 three were acquitted,?3
one case was discharged when the judge ruled that the evidence failed to reach the
objective test,74 (similarly with one of two counts in The Queen v Ryan),75 and one resulted
in a hung jury.76
Sentences
In the Magistrates Court, the maximum sentence that may be imposed is eighteen months
imprisonment. In twenty-five convictions, there have been only two custodial sentences
imposed, both fully suspended.
In the District Court, the maximum sentence for stalking simpliciter is three years
imprisonment and otherwise five years. To date, there have been only four cases of actual
imprisonment, these being for tenns of two years,77 nine months (detention)78 and six
months79 respectively, and another five of suspended sentences or an Intensive Correction
Order. The most common sentence imposed has been probation for periods of either two
or three years. Convictions were recorded in eighteen cases.
The standards set have so far relegated the offence to the level of a 'minor indictable
offence' to use previously coined terminology.8o In some cases it might be inferred that
the court wanted to retain the maximum term of probationary supervision over immature
and socially inept young persons rather than imposing punishment.81 However, the socially
inept have not always been sympathetically considered. The Honourable FL Daly DCI
remarked that:
One of the purposes of this legislation is to make sure everyone comes to appreciate that socially
inept behaviour persisted in to a degree of (causing) fear and violence in others is now a criminal
offence with a maximum penalty of three years. 82
As yet there are no fmn Court of Appeal guidelines to assist counselor the judiciary
on their approach to sentencing for this offence. Only three cases (one from the Magistrates
71 The Queen v Knight (1996) (unreported, District Court Brisbane, O'Sullivan DCJ, 24/4/96).
72 The Queen v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCJ; 19/5/94); The Queen v Groves (1995)
(unreported, District Court Ipswich, Robertson DCJ; 16/5/95 and 6/10/95); The Queen v Irwin (1995) (unreported,
District Court Maroochydore, Dodds DCJ; 4/12195).
73 The Queen v Ryder (1995) tunreported, District Court Townsville, Trafford-Walker SJ, 15/3195); The Queen v
Ryan (1995) (unreported, District Court Cairns, White DCJ; 30/1195); The Queen v Clarke (1995) (unreported,
District Court Ipswich, Robertson DCJ; 27/2195).
74 The Queen v Williams (1995) (unreported, District Court Brisbane, Copley ADCJ; 15/5/95, transcript, 13, 24).
75 The Queen v Ryan (1995) (unreported, District Court Cairns, White DCJ; 30/1195, transcript, 28).
76 The Queen v Monaghan (1995) (unreported, District Court Brisbane, Pratt DCJ; 3/3/95).
77 The Queen v Irwin (1995) (unreported, District Court Maroochydore, Dodds DCJ; 4/12195).
78 The Queen v M (a Minor) (1995) (unreported, District Court Ipswich, Howell DCJ; 17/3/95).
79 The Queen v Horvat (1995) (unreported, District Court Southport, Hanger DCJ; 611195); The Queen v Maniadis
(1995) (unreported, District Court Ipswich, Howell DCJ: the defendant is currently on bail pending an appeal
against sentence).
'
80 Goode, supra note 3, 29.
81 The Queen v Westrup (1994) (unreported, District Court Brisbane, Robertson DCJ; 11/11/94); The Queen v Grice
(1995) (unreported, District Court Brisbane, Boyce, DCJ; 30/1195); The Queen v Cooper (1995) (unreported,
District Court Brisbane, Kimmins DCJ; 31/3/95).
82 The Queen v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCJ; 19/5/94, transcript, sentencing
remarks, 2).
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CourtS3) have been considered by the Court of Appeal, each against sentence only and
each case has been decided purely on its own facts. However, in The Queen v Kyriakou,84
the Court of Appeal in reducing the sentence from six months imprisonment to two years
probation paid particular attention to the following factors:
* No prior criminal history;
* The defendant posed no danger to anyone and merely lacked social skills; and
* The defendant had not persisted with any contact with the victim since his arrest.
In The Queen v Cook,85 the Court of Appeal in reducing the sentence from twelve
months imprisonment suspended for two years after three months, to three months
imprisonment fully suspended, paid attention to the following factors:
* The very difficult personal circumstances of the defendant during his period of stalking;
* The support he had received from his former employer; and
* The defendant's willingness to undergo psychiatric and alcohol treatment.
It should not be presumed that terms of incarceration are a necessary element in the
success of the legislation. If non-custodial sentences achieve the cessation of the offence
and adequate redress of the complainant's concerns then they are to be preferred to
mandatory custodial sentences.
It is understandable that offenders under the age of twenty-five years would receive the
benefit of s 9(4) of the Penalties and Sentences Act 1992 which specifically attempts to
keep young fIrst offenders out of prison. The socially inept and maladjusted youths who
have appeared before the court ~e more in need of help than punishment, a point which
was also recogI!ised in the case of Kyriakou. 86
In at least two cases, at the time of sentence, the defendant's counsel submitted that
his client was now in a new and stable relationship. One such new and stable 'relationship'
(all of six weeks duration) was sitting in the back of the court to add verisimilitude to
counsel's submissions. This reflects the ephemeral nature of adolescent relationships and
serves to illustrate that severe punishments are often inappropriate for the young and
socially inept.
Until the recent case of The Queen v Irwin,87 it was difficult to imagine how much
more serious a case would need to be to attract a significant custodial sentence. It appeared
to require a significant assault or other act of violence in which case the more serious
offence would have been charged and attracted the more severe penalty. The stalking
offence would have been merely secondary or may not have been charged at all.
This is illustrated in The Queen v Monaghan,88 where the accused was charged also
with wilful d3:IDage and assault occasioning bodily harm. He received sentences of two
months imprisonment and six months imprisonment respectively, fully suspended for three
years. The jury was unable to reach a verdict on the stalking charge. However, if he had
been found guilty it is speculated on the basis of other stalking sentences that the sentence
for that offence would have been less than for the other two offences on which he was
convicted. This situation was anticipated in the South Australian legislation. 89
In The Queen v Irwin,90 the defendant was sentenced to terms of imprisonment of six
months for wilful damage, two years for stalking with aggravation and three years for
83
84
85
86
87
88
89
90
Anthony Thomas Dunleavey v Gregory Michael Quinn, Queensland Court of Appeal, CA No 180 of 1995.
The Queen v Kyriakou (1994) Queensland Court of Appeal No 216 of 1994, Brisbane 16/9/94, 10.
The Queen v Cook (1995) Queensland Court of Appeal No 459 and 490 of 1994, Brisbane 23/3/95,4-5.
The Queen v Kyriakou (1994) Queensland Court of Appeal No 216 of 1994 Brisbane, 16/9/94, 10, 11.
The Queen v Irwin (1995) (unreported, District Court Maroochydore, Dodds DCI; 4/12/95).
The Queen v Monaghan (1995) (unreported, District Court Brisbane, Pratt DCJ; 3/3/95).
Goode, supra, note 3, 26.
The Queen v Irwin (1995) (unreported, District Court Maroochydore, Dodds DCI; 4/12/95).
Stalkees Strike Back -
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breaking and entering a dwelling house with intent to commit an indictable offence, all
offences being related to the stalking incident.
The attitude of the complainant has been taken into consideration in cases where she
did not wish the offender to go to gaol but merely to stop his stalking.91
In the author's opinion the factors which could be advanced in support of sentence
would be:
* the number of concerning acts;
* the number of concerning offensive acts;
* the duration of the period of stalking;
* persistence - whether the accused re-offended after arrest or while under a restraining
order;
* the potential danger posed by the accused;
* whether or not the accused is under twenty-five years of age and therefore eligible for
the benefit of the relevant provisions of the Penalties and Sentences Act 1992 (Qld);
* previous criminal history; and
* psychiatric pre-sentence report.
Problems with legislating against stalking'
Breadth of legislation
Great concern has been expressed by commentators about defining acts of stalking and of
the dangers that behaviour on the surface innocent, may in fact be innocent but be
interpreted as stalking.92 It is generally agreed that legislation for the offence of stalking
needs to be very widely drawn in order to be effective and this has been one of the main
concerns. It has proved very difficult to draw legislation widely enough to include all
likely situations whilst at the same time limiting the operation of the legislation to the
desired target groupS.93 Queensland's legislation is the most widely drawn in Australia and
perhaps the world. Many apparently innocuous activities can constitute a 'concerning act'
for the purposes of the section. A requirement of only two concerning acts over an
unspecified and therefore unlimited period of time means that there is a danger of innocent
persons being caught in its net.
On the other hand it is not desirable that legislation should be too narrowly drawn
either, in case it excludes those domestic violence and other situations which the Criminal
Code did not previously cover and for which stalking legislation was specifically created.
Some cases in Queensland would not have been covered by the narrow legislation of other
States which require intent to cause mental or physical harm and would have left
complainants without redress. 94
Methods of limiting the legislation to the specific target groups
It has been thought prudent to include certain limitations to legislation to try to avoid
'overbreadth' and to confme it to specified target groups. However, where legislation is
widely drawn it may be difficult to confme it to target groups. American jurisdictions use
'wilfulness', 'credible threat' and 'intention' as elements to limit the scope of the
91
92
93
94
The Queen v Gibson (1995) (unreported, District Court Brisbane, Pratt DCI; 6/9/95).
Weiner, supra note 6, 32-33; Goode, supra note 3, 27-28.
Goode, supra, note 3, 26-28.
The Queen v Cooper (1995) (unreported, District Court Brisbane, Kimmins DCJ; 31/3/95); The Queen v Grice
(1995) (unreported, District Court Brisbane, Boyce DCI; 30/1/95); The Queen v Kyriakou (1994) (unreported,
District Court Mt Isa, Daly DCJ; 19/5/94).
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legislation. 95 Some of the methods used to confine the operation of the legislation in
Australia to the desired 'target group' are discussed below.
Domestic relations
The New South Wales legislation96 limited the operation of its stalking legislation to
domestic relationships. This element proved to be too restrictive to enable the offence to
be of general use and was amended in December 1994. The offence of stalking has been
charged much more frequently since then.
Intent
The element of intent is usually an essential element of criminal responsibility, eg s 23 of
the Queensland Criminal Code. Other Australian and overseas jurisdictions have inserted
the element of intent to cause injury or fear, or in the case of South Australia, intent to
cause serious injury or fear, in the offence. Therefore, there will be a subjective test to
make out the charge, which may severely limit success at prosecution. The 'erotomanic'
group for instance, would not be caught by this legislation because they do not intend to
inflict injury or fear initially but merely to express their love for their victims.
In South Australia, some police, prosecutors and organised feminists wanted the intent
element dropped from the offence because, they argued, it would be impossible to prove. 97
Similarly, a spokeswoman for the Sydney-based Domestic Violence Advocacy Service98
complained that the inclusion of the element of intent in the New South Wales law made
the burden of proof too high, a point disputed by the New South Wales Law Society which
described it as an acceptable criminal standard needed to distinguish between genuine
stalkers and others simply going about their business. In South Australia, police procedure
is to officially warn an offender after his frrst reported offence and to bring to his notice
that a second offence will make him liable to be charged with stalking. In the event of
his re-offending, the warning becomes part of the evidence and is used to prove the element
of intent. It has been reported this is successful insofar as many offenders have received
a fIrst warning but only three have been prosecuted which infers that the rest have
apparently taken notice of their fIrst warning.
In Queensland, by contrast, the intent is merely to make the victim aware that a course
of conduct is directed towards him or her. This makes Queensland's legislation much
broader than in other States and will allow a broader range of offenders to be charged.
The danger is that there will be an excessive catch and therefore 'overbreadth' in the
operation of the section.
Reasonable apprehension of harm
The only other limitation in the Queensland legislation (apart from industrial and political
activity) is the combination subjective/objective test that a reasonable person in the position
of the complainant must have a reasonable apprehension that a violent 'concerning
offensive act' is likely. This is the principal safeguard for innocents. 99 This renders the
legislation much more useful in dealing with all kinds of stalkers but invokes the fear, in
some, that it is still too wide and that innocents will be inadvertently caught by it.
It has become apparent that there is confusion in Queensland about the offence of
stalking. Some police have been charging the offence of stalking inappropriately, having
come to regard it as something of a miscellaneous offence. On the other hand, it has also
become apparent to both the author and officers of the OPP's Violence Against Women
95 Goode, supra, note 3, 25-30.
96 Crimes Act 1900 (NSW) ss 562A and 562AB.
97 Goode, supra, note 3, 29.
98 K Kerley, Sydney Morning Herald, 1 May 1995.
99 The Queen v Williams (1995) (unreported, District Court Brisbane, Copley ADCJ; 15/5/95 transcript, 13, 34).
1
1
f
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Unit, that some police are not charging the offence when it appears that they should and
that some magistrates are dismissing charges which apparently should not be dismissed.
The novelty of the offence and lack of familiarity with its elements, the difficulty of
assessing apparently trivial acts of stalking and the difficulty of judging the likelihood of
an act of violence are all aspects contributing to -this phenomenon. Clearly, knowledge
about the offence is needed and then judgment exercised by both police and magistrates
to' enable all genuine offenders to be charged and dealt with but to exclude others.
To date only eight defendants have pleaded 'not guilty' and only three of these have
been convicted, the other results having been 'not guilty', a 'hung jury' and the entry of
nolle prosequis. In the Magistrates Court, only 25 of the 73 cases heard summarily have
been convicted. In any event convictions have not run rampant.
Public criticism of the legislation to date has come from women's groups about the
often sceptical response from police to victims' complaints and also the requirement for
two concerning acts before the offence is committed and the offender can be charged.
There appears to be a need in the legislation for an injunctive device - an interim
restraining order against a potential offender prior to arrest and similar in nature to that
available in the Domestic Violence (Family Protection) Act 1989 (Qld). Victorian and
Tasmanian legislation contains this provision and South Australia achieves a similar result
via the police practice of interviewing offenders after a single incident. The Queensland
Peace and Good Behaviour Act 1982 suffers from the disadvantage of requiring a hearing
prior to the imposition of a bond and does not provide for interim injunctive relief.
It has been suggested, though not confmned, that some police, frustrated by the lack
of such a provision, are sometimes tempted to charge offenders without a sufficient body
of evidence, primarily to take advantage of the 'no contact' provisions of the subsequent
bail undertakings. If this is correct, then it highlights the need for injunctive relief.
It is the author's opinion that legislation which is wider but has appropriate safeguards
to identify and exclude non-offenders, is preferable to legislation which is too narrow to
catch a sufficient number of offenders to be of any worthwhile use to complainants.
General comments
The term 'stalking'
In the light of the dictionary definition of the word 'stalking', 'to steal up to game under
cover', 'pursue stealthily', 100 it is doubtful whe~er the Criminal Code name for ss 359A
and 359B is descriptive or accurate. The point is not merely pedantic. In an early case in
the District COurt,101 defence counsel in his address to the jury said that the word'stalking'
conjured up images of a sinister figure in a trench coat and a black hat lurking on a
darkened street comer and explained how this description certainly did not fit his client.
Indeed the defendant in this case failed to understand how his behaviour, innocent in his
own mind, could possibly constitute a criminal offence and left him unable to appreciate
the serious nature of his actions. Certainly there was no intent to cause any harm or alarm
to his victim. To be told that he had been indulging in the offence of 'stalking' would
have only compounded his incomprehension.
The majority of 'concerning acts' have been particularly public, loud and noisy, eg
objects thrown through windows, loud, public, vulgar and ob$cene abuse, skidding cars
on footpaths etc, all calculated to attract the maximum attention. These sit uneasily with
the image of the dark, sinister, stealthy unseen menace traditionally assoc~ated with the
word 'stalking' and as in the above case, could lead to an accused failing to understand
the nature of his or her offence. Canada frrmly rejected the word 'stalking' in the Canadian
100 The Shorter Oxford English Dictionary (Oxford University Press, 1973).
101 The Queen v Kyriakou (1994) (unreported, District Court Mt Isa, Daly DCI; 19/5/94).
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Criminal Code, s 264, in favour of the tenn 'criminal harrassment' to describe the
offence. 102 The name 'stalking' is, however, now well entrenched in Australia but it could
often be misleading.
Stalking legislation in other Australian States
All stalking legislation in the Australian jurisdictions are basically similar to that in
Queensland, which differs from the others with regard to the element of intent. All have
a similar general structure in that (apart from Queensland) they involve subjective elements
of intent to invoke fear or physical harm or in some cases damage to property, and involve
an objective test for the victim of the 'reasonable person'. All have an aggravated version
of the offence which usually involves the breaking of a court order, violence or possession
of a weapon. There is usually also an option to have other than aggravated cases tried
summarily in the Magistrates Court.
New South Wales
Sections 562A and 562AB of the Crimes Act 1900 (NSW) deal with stalking. The elements
are an intent to cause the victim to fear personal injury. The intent is satisfied if the
offender knows that his conduct will cause the fear of personal injury. It does not include
damage to property. The prosecution is not required to prove that the victim actually feared
personal injury.
Stalking was a purely summary offence carrying a maximum penalty of five years
imprisonment, although paradoxically, a Magistrates Court had jurisdiction to impose a
maximum sentence of only two years. It applied originally only to domestic relations which
made it the most limited and narrow legislation in Australia. It appears that there were
only eleven cases prosecuted and only six convictions recorded until the 'domestic
relations' element was removed following which there have been seventy-five charges laid,
thirty proved and seven dismissed. On 1 September 1995, it also became an indictable
offence.
Victoria
Under s 21A of the Crimes Act 1958 (Vic), the elements of the offence are the intent to
cause physical or mental harm or apprehension or fear in the victim and that it did actually
have that result. Damage to property is not an element. Intent is proved if the offender
ought to have known that his behaviour would cause the result and it did actually have
that result. The maximum penalty is ten years imprisonment placing it in the highest
category of offence in that State. There is also a special category of stalking relating to
the Crimes (Family Violence) Act 1987 (s 21A(5», whereby the court may make an
intervention order without a charge of stalking being laid. 103
South Australia
Section 19AA of the Criminal Law Consolidation Act (SA) came into operation on 1 June
1994. The elements are intention to cause serious physical or mental harm or serious
apprehension of fear. The maximum penalties are five years imprisonment if there is
contravention of an injunction or order or if the offender is in possession of an offensive
weapon: it is three years otherwise. If the charge of stalking is not proved, an accused can
be taken to have been charged with an alternative offence of 'offensive behaviour'. This
aspect may reduce the consequences of very restrictive stalking elements. There have been
102 B A MacFarlane QC, Deputy Minister of Justice and Deputy Attomey-General for Manitoba, 'People Who Stalk
People, October 1995, 34-35 and footnote 94.
103 Wiener, supra note 6, 33.
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only three cases prosecuted so far, both in the Magistrates Court and two received short
suspended prison sentences.
Western Australia
Under ss 338D and 338E of the Criminal Code, the elements of the offence are an intent
to prevent or hinder the doing of a lawful act by the victim or to prevent the abstinence
of an act or to cause physical or mental harm or apprehension of fear in the victim or the
dispossession or hindering use of victim's property. Aggravation is the breaching of an
order, being armed or pretending to be armed with a weapon or breaching a bail condition.
The maximum penalties are eight years and three years imprisonment respectively. For
summary convictions the penalties for the same category of stalking are two years
imprisonment or a fme of $8,000 and eighteen months and a fine of $6,000 respectively.
It is a defence that the accused acted with lawful authority or reasonable excuse. There
has been one case only so far which was heard in the Magistrates Court and resulted in a
fine.
Northern Territory
Under s 189 of the Criminal Code, the elements of the offence are an intention to cause
physical or mental harm to the victim or apprehension offear. Elements of aggravation
are contravention of a condition of bail, injunction or order or possession of an offensive
weapon. Maximum penalties are five years and two years imprisonment respectively. As
at July 1995, three cases had been heard and two were due to be heard in the Magistrates
Court.
Tasmania
Under s 192 of the Criminal Code the elements of the offence are intention to cause the
victim physical or mental harm, apprehension orfear. Interference with property or actions
which could reasonably be expected to arouse the victim's apprehension or fear constitute
acts of stalking. There is a separate offence under the Justices Act 1959 where redress is
the obtaining of a restraining order in the Court of Petty Sessions. This is not a criminal
offence and no element of intent need be proved. At the time of writing this legislation
has been passed by Parliament but is still to receive Royal Assent.
The Queensland legislation is the broadest and the easiest under which to obtain
convictions and it is this very aspect which is a concern for some commentators. There
appears to be no such public concern in Queensland and therefore probably no cause for
concern elsewhere.
Conclusion
It has been proposed that stalking legislation was designed to fill a gap in the law which
was not previously covered adequately by existing criminal sanctions. The protection
offered by summary offences such as restraining orders and domestic violence orders was
often inadequate, especially for the serious stalker who was un,likely to be deterred by
these. On the other hand it was not intended to rei¢'orce or add weight to existing serious
offences such as assault, attempted murder or grievous bodily harm which already carried
potential penalties vastly in excess of those applicable to stalking. It was designed to fill
the gap between the twO. 104
It is the author's opinion that the Queensland legislation fits that des~ription well and
that its role is that of a 'minor indictable offence', filling the gap between existing summary
offences and major indictable offences. Although the penalties associated with the offence'
104 Goode, supra note 3, 24.
44
RA Swanwick
are by no means minor, the judiciary have, to date, virtually relegated it to the status of
'minor indictable offence'. In some ways, paradoxically, this has increased its value in
dealing with those offenders who have not been dangerous, who have acknowledged their
criminality by pleading 'guilty' and who have been unlikely to re-offend. It is not intended
to bolster nor re-enforce existing major offences, nor to deal with persons who are merely
making nuisances of themselves. lOS
It is impossible not to contrast the 175 cases dealt with in Queensland in a two year
period with only three in eighteen months in South Australia even allowing for that State's
practice of warning offenders after their fIrst offence. However, in New South Wales after
only eleven cases having been heard in the fIrst twelve months, the removal of the element
of 'domestic relations' and an apparent intensive training course for police, there have
been 75 charges laid in the following eleven months. Perhaps the difference in frequency
of charging the offence in different jurisdictions lies in education of police about the
offence and its role and then policy considerations as determined by police and
government.
Results to date indicate that Queensland's stalking legislation has been very successful.
Some 63 complainants have obtained redress for their complaints in either the Magistrates
or District Courts under legislation which was not previously available to them, and the
offenders have been dealt with effectively, as far as is known, albeit in the opinion of
some, lightly. This alone shows the legislation in a complimentary light. The fact that in
the District Court only eight offenders have pleaded 'not guilty' indicates that offenders
have been willing to accept the reality of their behaviour.
The author is particularly taken with the concept of preventive policing as practised by
the Los Angeles Police Department Threat Management Unit whose task is to assess the
risk posed by individual stalkers and to take steps before a serious event occurs.
Specifically, the stalker is informed of police awareness of him, that he is causing concern
and that the police are monitoring him. 106 This would clear up misunderstandings on the
part of innocent ,suspected stalkers 107 and also give genuine stalkers an opportunity to
desist before invoking the full majesty of the law. It would also facilitate early identification
of potentially dangerous stalkers such as $e erotomanics.
A similar measure has been adopted by police in South Australia with apparently
pleasing results and therefore, should be considered for implementation in all other
Australian jurisdictions. Victoria's provision for an intervention order appears designed to
achieve a similar object.
From the results of the Queensland experience it is apparent that many of the concerns
of commentators, though theoretically valid, have not been realised in practice and that
the offence of stalking has found a comfortable niche in the justice system. Whilst there
was widespread initial interest amongst the legal fraternity about the novelty of its
provisions and how they would be implemented, it has, after two years of operation, settled
uncontroversially into the judicial landscape.
There is a fear that the Queensland legislation is still too widely drawn to strike a
perfect balance between catching all offenders and avoiding unintended innocents.
However, the provisions achieve at least one of the aims of the legislation, to provide
redress for as many complainants as possible where none previously existed. The danger
for the other Australian jurisdictions may be that their legislation is drawn too narrowly
to catch all or even the majority of offenders that would justify the operation of the
legislation and that, as in New South Wales, it will need to be amended to broaden its
operation. It will be interesting to see how the balance is fmally struck.
105 The Queen v Ryan (1995) (unreported, District Court Cairns, White DC]; 30/1195, transcript, 22).
106 Supra no~e 5, 272.
107 Wiener, supra note 6, 32.