Law student and political blogger, Petros Khalesirad has been charged with unlawful stalking of a member of Queensland Parliament. An avid political blogger, Petros’s bail conditions have banned him from using social media and coming within 100 metres of the MP and her family.
Unlawful stalking in QLD
Unlawful stalking in QLD is an offence under section 359B of the Queensland Criminal Code 1899 and can include behaviour which may not necessarily be socially associated with stalking.
Under the Criminal Code, unlawful stalking includes any of the following conduct:
- Being near, following, watching or approaching a person;
- Contacting a person, including through the use of any technology;
- Watching, approaching, entering or loitering near a place where a person works, visits or lives;
- Leaving offensive material around where it could be found by, given or brought to the attention of a person;
- Providing offensive material to a person either directly or indirectly;
- Using harassment, threats or intimidation against a person (regardless of whether violence or threats are used); or
- Any act of violence, including threats, made against a person or property of anyone.
In the circumstances, the unlawful stalking must cause the person detriment, or feel apprehension or fear of violence. That fear and apprehension must be reasonable in the circumstances of the conduct.
Section 359B of the Criminal Code explicitly sets out that for a person to commit unlawful stalking, they must intend to direct their conduct at another person. This does not mean that the person have to intend to ‘stalk’ the stalked person, only that they must intend to direct their conduct towards the a person. The conduct in question can also be on one or more occasion.
Section 359C of the Criminal Code also sets out behaviour and conduct that would be irrelevant to an unlawful stalking charge. For this reason, whether a person intends that the stalked person be aware that the conduct is directed at them is not relevant to unlawful stalking. Neither is whether the person has mistaken the identity of the person at whom they were directing the conduct.
It is also irrelevant under section 359C for the conduct to be directed at someone else or someone else’s property. It is not a defence if a person does not intend to cause fear, apprehension or detriment. There is no need for fear or apprehension to have actually been caused to the stalked person. Although section 359C does not specify if there is a requirement that the stalked person has suffered a detriment, it is clear that the fear and apprehension test is objective. This means it is irrelevant to a charge of unlawful stalking in QLD that fear or apprehension, or the violence of the conduct is actually caused.
Conduct that is not unlawful stalking
Petros claimed that the conduct in question was made as part of genuine political discourse which was in the public interest.
The Criminal Code under section 359D specifies what conduct would not amount to unlawful stalking. This includes the following:
- Conduct during a genuine industrial dispute;
- Conduct which is reasonable for a person to obtain or give information that the person has a legitimate interest in obtaining or giving;
- Conduct which was authorised under law, such as under an Act of legislation;
- Conduct as part of a genuine political dispute or public issue which is in the public interest; and
- Conduct which is reasonable for the person’s lawful trade, occupation or business.
Does a political blogger have a defence to unlawful stalking?
To prove their case in court, the police must prove each of the elements of the offence of unlawful stalking beyond reasonable doubt.
There are a number of defences that would be open to a person who has been charged with unlawful stalking. These can include:
- Arguing that the police have the wrong person;
- Proving that the act was done for the purposes of a genuine public issue or dispute carried on in the public interest, including political issues;
- Demonstrating that the conduct, which was reasonable, was engaged in for the person’s lawful business, trade or occupation; and
- Arguing that the conduct was engaged in to receive or give information that the person has legitimate interests in and that conduct was reasonable in the circumstances.
There are also more general defences which can be argued against a charge of unlawful stalking in QLD.
The maximum penalty for unlawful stalking in QLD is five years in jail. For aggravated cases or cases where a person using a weapon or violence, the penalty is seven years’ imprisonment.