In Queensland, stalking is an offence under section 359B of the Queensland Criminal Code 1899.
Intimidating behaviour such as following a person in such a way that makes them feel apprehension or fear of violence, or causes them detriment is an offence. The apprehension or fear of violence must be reasonable for the prosecution to prove the unlawful stalking offence. The stalking behaviour in question can occur on one or more occasion.
Other behaviours which cause a person detriment or fear of violence, such as the following, can lead to an unlawful stalking charge:
- Posting or leaving material that is offensive where it could be found by the victim, given to them or brought to their attention;
- Providing offensive material to a person either directly or indirectly;
- Contacting a person, including through the use of any technology;
- Watching, approaching, entering or idly waiting near a place where a person works, visits or lives;
- Being near, following, watching or approaching a person;
- Using harassment, threats or intimidation against a person; or
- Threats or any act of actual violence made against a person or property of anyone.
To commit unlawful stalking, there must have been an intention to direct the stalking conduct to the victim. However, misidentifying the victim is not a defence.
Matters which are not relevant to an unlawful stalking charge
Under section 359C of the Criminal Code there are a number of situations that would be irrelevant to an unlawful stalking charge. This means that those particular situations cannot be used as a defence for an unlawful stalking charge.
Therefore, the following situations are not relevant for the purposes of a charge of unlawful stalking:
- Whether it is or is not intended that the victim is aware they are being stalked;
- The person has mistaken the identity of their victim;
- The stalking behaviour was directed at someone else or someone else’s property;
- The person had no intention to cause fear, detriment or apprehension;
- Apprehension or fear of violence is actually caused. It is only relevant that the stalking conduct reasonably causes the victim to have apprehension or fear of violence.
Conduct that is not unlawful stalking
While the definition of what constitutes unlawful stalking in Queensland is quite broad, there are a number of activities which would not be an offence. Under section 359D, the Criminal Code specifies that the following conduct would not be considered unlawful stalking:
- Reasonable behaviour in order for the person to continue conducting their lawful trade, occupation or business;
- Anything said or done during a genuine industrial dispute;
- Reasonable behaviour and conduct for a person with legitimate interests to obtain or give information;
- Anything said or done as part of a genuine public or political dispute which is in the public interest; and
- Legally authorised conduct, such as under an Act of legislation.
Defences to unlawful stalking
For the prosecution to prove a crime has been committed, they must prove that each of the elements to an unlawful stalking case has been committed beyond reasonable doubt.
Possible defences to an unlawful stalking charge include:
- Arguing that the police have the wrong person;
- Proving that the conduct is protected by section 359D and is specifically not included in the definition of stalking; or
- That a general defence applies.
Unlawful stalking is a serious offence and carries a maximum penalty of five years’ imprisonment. If the stalking involved a weapon or actual violence, the court can consider a maximum penalty of seven years in jail.