ALERT DIGEST 13 of 1994

Part 3

5.1

This Bill was introduced into the Legislative Assembly on 19 October 1994 by The Honourable Jan Wade MP with The Honourable Pat McNamara MP.

5.2

The Committee received written submissions from the Federation of Community Legal Centres and the North Melbourne Legal Service.

5.3

This Bill amends the Crimes Act 1958, the Bail Act 1977 and the Crimes (Family Violence) Act 1987. In particular, the purposes of this Act are:-

to amend the Crimes Act 1958 to create new offences dealing with stalking, bomb hoaxes and the contamination, or apparent or alleged contamination, of goods and to increase the penalty for arson;
to enable intervention orders under the Crimes (Family Violence) Act 1987 to be made in respect of stalkers;
to amend the Bail Act 1977 to place restrictions on the granting of bail for certain offences;
to amend the Crimes (Family Violence) Act 1987 with respect to the definition of "family member", the duration of orders and the penalties for breach of an order.

5.4 _Ż Part 2 - Amendment of Crimes Act 1958 - "Stalking"

Clause 3 inserts a new section 21A into the Crimes Act 1958 which creates the offence of stalking. The maximum penalty for stalking is 10 years imprisonment. Subclauses 2(a) - (g) set out the various actions which may constitute a course of conduct and create the offence of "stalking" under the Act. The activities range include:-

following the victim or any other person;
telephoning, sending electronic messages to or other wise contacting the victim or any other persons;
entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;
interfering with property in the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;
giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of the victim or any other person;
acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person;

Pursuant to subsection (2) if a person 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 any other person, then he or she may be convicted of stalking. Subsection (3) goes further to provide that if an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her safety or that of any other person if that offender knows or in all the particular circumstances that offender ought to have understood, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear, then he or she may be convicted of stalking.

Subsection (4) provides that the section does not apply to conduct engaged in by a person performing official duties for the purpose of :-

the enforcement of the criminal law;
the administration of any Act;
the enforcement of a law imposing a pecuniary penalty;
the execution of a warrant;
the protection of the public revenue;

Subsection (5) provides that a Court may make an intervention order in respect of a person if satisfied on the balance of probabilities that the defendant has stalked another person and is likely to continue to do so or do again.

The Committee wrote to the Attorney-General. With respect to new section 21A(3) while it did not actually breach the Committee's Terms of Reference, it appeared to unintentionally create a "victimless crime of stalking" in that a person may be convicted of stalking if the offender knows or ought to have understood that engaging in conduct of that kind would be likely to cause harm or arouse apprehension or fear. The Committee suggested that the words " and it did actually have that result" should be added to the subsection to clarify its operation. The Attorney-General responded by way of a letter dated 14 November 1994. The relevant extract is set out:-

"In response to the main issues raised by North Melbourne Legal Service, the following comments are made:

There is no requirement that injury to the victim to be proved. Further consultation has resulted in an amendment to the Bill which includes a requirement as an element of the offence that the victim suffer harm. A copy of the proposed House Amendment is attached to this letter.

'Clause 3, page 3, line 30 after "person" insert " and the course of conduct engaged in actually did have that result.

Clause 3, page 4, line 2, after "fear" insert "and it actually did have that result".

The Committee received a written submission from the North Melbourne Legal Service. The relevant extract is set out:-

"Section 21A, Crimes (Amendment) Bill

The definition of the physical aspects of stalking given by paragraph (2) of section 21A covers an extremely wide range of activities in which people engage in everyday life, and which generally would have no criminal element, for example, walking behind someone along the street, making telephone calls, sending facsimile transmissions, attending at a person's place of business or residence, and dealing with another person's property. If these things constitute stalking, the criminality of such behaviours must be clearly explained, and be easily understood by the public.

Sub-section 21A(2)

With respect to sub-section 21A (2), we note that this would appear to go directly to the essence of the general interpretation of stalking where the offender's intention is to cause harm. As this is a subjective test with respect to the offender's state of mind, which must be proved by the prosecution with clear evidence, we acknowledge that this part as drafted may give adequate protection to an alleged offender. However, we note that there is no requirement that injury to the victim be proved, and conclude that this omission has been made on the basis that injury in the form of induced fear is considered irrelevant to this part. Perhaps this can be seen as valid given that a person might not even be aware that they are being stalked, but the stalker has the requisite intent. It does appear to place stalking as defined by sub-section 21A(2) into the category of inchoate offences such as attempt and conspiracy; but there is no guarantee that the courts would treat this stalking provision with the appropriate caution given to other such crimes for the purpose of protecting a defendant's presumption of innocence.

It is unclear what actions the words "course of conduct" are meant to cover. For example, does it mean that if alleged offender engages in any of the behaviours listed in paragraphs (a) to (g) only once that he or she offends against this section, or does the behaviour have to be repeated on more than ten occasions? Is it sufficient for the alleged offender to perform only one of the types of behaviours listed, or three or more of them? No guidance is given to Courts for the interpretation of this phrase, and as it stands, the meaning is vague. As this is a completely new type of offence being introduced to the criminal law, it is necessary that there be a clear indication of the point at which activities will be called into question. This is all the more important when the behaviours listed constitute the activities of everyday life.

Sub-section 21A(3)

Sub-section 21A(3) is badly drafted. The part which states that "an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of another person if the offender knows ... that engaging in the course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear" (our emphasis) seems to repeat the subjective test of intent set out in sub-section 21A(2), therefore is unnecessary.

If this part is in fact aimed at addressing recklessness on the part of an offender, this should be stated. The legislation would then correspond with current criminal provisions for various offences which have intention and recklessness as alternatives regarding the offender's state of mind. Existing case law on the meaning of these terms would then offer a methodology for interpretation of section 21 A to the Courts.

Sub-section 21A(3) offers an alternative means of assessing the alleged offender's behaviour, that "in all the particular circumstances that the offender ought to have understood, that engaging in a course of conduct of this kind would be likely to cause such harm or arouse such apprehension or fear". This raises serious concerns on the basis that it would impose an objective test on an alleged offender's acts, while purporting to take into account his or her personal circumstances.

Which "particular circumstances" could be taken into account in this regard? Does this include the state of mind of an offender who has a psychiatric condition or intellectual disability, who is not capable of determining the effects of his or her own actions on other people, or are these issues too subjective? Is this part designed to give the alleged offender the opportunity to give a valid explanation for his or her activities?

We presume it will be the role of the police to investigate what "all the particular circumstances" are, which may prove a daunting task.

We question whether "all the particular circumstances" also requires the victims physical or mental harm, apprehension or fear to be reasonable. What if a victim suffers from schizophrenic delusions and believes that everyone is watching or speaking to them with the intent of causing harm? What if the victim is always afraid to walk the streets at night, but regularly works late, catches the tram home, and another commuter often follows her along the street to their respective homes? Shouldn't the fellow commuter be allowed to presume that if she is out after dark in these circumstances that his presence is not a problem, or must he find another route? What of victims of domestic violence that become generally afraid of men, and regard all male behaviour with suspicion? Is the offender obliged to take into account such delusions or general fears, when he or she would never consider them reasonable? Different people have irrational fears about many things. We submit that this part should be amended so that only reasonable physical or mental harm, apprehension or fear suffered by the victim needs to be foreseen by the reasonable offender. Also, the victim must have a reasonable belief that the offender's behaviour is directed at themselves.

Perhaps consideration should be given to the legislation amending to include recklessness in sub-section (3), as the alternative to intent in sub-section (2), rather than the vague description of state of mind presently constituting sub-section (3). We note that in the case of Zecevic -v- Director of Public Prosecutions (Vic) ([1989] 71 ALR 641) the High Court interpreted recklessness using the concept of the reasonable person, to be reasonable belief of a defendant in his or her own individual situation. This would offer an opportunity to a defendant to justify his acts, while removing the possibility of a purely objective test as to intent being applied.

Case Study

The potential injustice that could arise through application of sub-section 21A as it now stands can be clearly seen when considered in conjunction with the behaviours listed in paragraph (2)(a) to (g). Consider Mr Bladier's case in this regard. The supposed victim, Ms Helen Fechner, alleged that for approximately four months commencing early August, 1993, she would encounter Mr Bladier every ten days or so during her walk between North Melbourne Railway Station and her place of work in Arden Street. She claimed he would walk behind then pass her, occasionally slowing down to say "hello". When Ms Fechner would turn a corner following her particular route to work, Mr Bladier would continue straight on, but she would often see him again at another corner near to her workplace. After a period of time Ms Fechner became fearful of our client due to these regular sightings, believing he was following her. Ms Fechner's fear increased in November, 1993, when she claims Mr Bladier approached and queried her as to whether she was going to work and identified the street in which she did in fact work. She ran away from him in response, refusing to speak to him. Ms Fechner claims that later the same day she noticed Mr Bladier as she approached the Railway Station, and she was forced to run in front of traffic to avoid him. Also, she stated that he followed her to the Station, stood on an adjacent platform and stared at her until she caught her train. Approximately ten days later, she again saw Mr Bladier in the street. Although Ms Fechner hid from him, she said he waited for her and then queried what she was doing, causing her to scream at him to leave her alone and run off, terrified. At this point she reported the matter to the police. Ms Fechner noticed our client again that lunchtime in Errol Street; she telephoned the police and he was arrested.

At the committal hearing, Ms Fechner gave evidence as to the above and then was cross- examined by Counsel for Mr Bladier: Ms Fechner confirmed that at the time of the alleged offence she did not know that he in fact worked in the building next door to her own workplace, but had been advised of this later by the police. She conceded that given they worked nearby to each other, both travelled to work by train although from different directions, and both started and finished work and caught trains at almost identical times, it would not be unreasonable for her to see him on the street on a regular basis. It was put to Ms Fechner that it would not be unusual for Mr Bladier to be aware of where she worked in these circumstances, nor that he would initiate friendly conversation with someone he saw on such a regular basis. Counsel pointed out to Ms Fechner that his route to work coincided to a large extent with her own, diverging in the middle of the walk but realigning at the end. She agreed that he never followed her during the central part of her walk, nor did she see him when she changed her route altogether. Ms Fechner had never responded to our client's attempts at conversation, and in fact had not spoken to him at all until the last morning she saw him. Until that day, she had made no request to him to leave her alone.

The presiding Magistrate, Mr Hicks, M., himself acknowledged that Ms Fechner's reaction was that of a reasonable person. But our client's failure to see the effects of his actions was also reasonable, given that he knew she worked next door and caught the train. The allegations made against him arose from a lack of insight on behalf of the alleged victim of the full reality of the situation. During his judgement, Mr Hicks, M., made the following comments: ".. . we would, no doubt, .all get disturbed if we saw a stranger hanging around outside our own place of residence on different days. It might cast a different light on our perception of his actions, however, if we were informed that he had moved in just next door and, in fact, was our new neighbour."

Mr Hicks, M. concluded that our client's behaviour was not criminal in nature.

This case highlights the necessity to include a subjective test with precise definition in assessing an alleged offender's actions. Viewing Mr Bladier's behaviour from an uninformed perspective, many people would presume he was stalking Ms Fechner, but this was far from the truth. His explanation of the circumstances brings to light the fact that he was acting appropriately and merely giving a friendly greeting to a neighbouring worker. Ms Fechner's reaction can be seen as unreasonable, but only after all the facts were available.

Application of the proposed section 21A to the facts in Mr Bladier's matter shows that the proposed legislation as it stands threatens the freedom of people to undertake normal everyday activities: one would constantly need to be on the lookout for other people who might be incorrectly interpreting one's actions.

In general, interaction with strangers would need to be undertaken with a great deal of caution. We submit that the potential application of this proposed provision, while drafted with the best intentions, would have a detrimental effect on the community.

We further submit that any problems with the legislation in this regard should be addressed before it becomes law: it would be most unfair to test the provision in the courts and then make appropriate adjustments to correct errors. Mr Bladier's case was run as a test case. While the charges were struck out at the committal stage, he has suffered the loss of his public credibility, and he felt compelled to resign from his employment so that he could comply with his bail conditions. He has been unable to find alternative work to date. We trust the Government will carefully consider the possible effects of the legislation before it is passed, rather than impose on individuals lives for the purpose of finding mistakes in section 21A.

Neighbourhood Watch

As another example of the possible difficulties with the Bill, consider the aims of the Neighbourhood Watch program. Neighbourhood Watch encourages people to keep a look out for potential offenders. Such acts could be construed as falling within the prescribed activities defined as stalking. This Bill would send a contradictory message to the community regarding crime prevention.

Sub-section 21A(4)

We confirm that sub-section (4) excludes the conduct of various persons from application of section 21A: we presume this applies to the police and the Sheriffs Office in enforcing a criminal penalty or fine, or a civil debt. We note that there does not appear to be an exemption provided to process servers. Further, the draft section as it stands has the potential to have major ramifications to the insurance industry: persons being investigated for insurance fraud by a private investigator may validly believe they are being stalked when they are placed "under surveillance" .

We note that paragraph (4)(b) may be designed to protect the rights granted to private investigators under the Private Agents Act, but is their work "administration"? While the Transport Accident Commission could have protection under paragraph (4)(b), or (4)(e), the private insurers for WorkCover may not.

The general exemption provided for "the administration of any Act" is extremely wide, and consequently is inappropriate. We believe the ramifications of this exemption have not been considered in the drafting process.

Penalty

Another problem with the draft section 21A is the penalty imposed: the maximum 10 years imprisonment places this offence into a category more serious than some serious assaults. This sends a message to potential offenders that it is perhaps better to actually assault a person, rather than only think about such actions in the process of stalking. This message of course should be avoided, in order to provide full protection to victims. At present, the legislation is clearly open to criticism on this basis."

The Committee sent the submission to the Attorney-General. The Attorney-General responded by way of a letter dated 14 November 1994. The relevant extract is set out:-

"In response to the main issues raised by the North Melbourne Service the following comments are made:-

"Which particular circumstances" could be taken into account in this regards

The main query is whether the victim's physical or mental condition is relevant and whether the fear or apprehension experienced by the victim should be reasonable.

The phrase "in all the particular circumstances" refers to the knowledge of the offender in determining whether the particular offender ought to have understood the likely effect on the victim.

It is appropriate that if the offender knew that a particular victim was a paranoid schizophrenic and pursued the requisite course of conduct which would be likely to cause that victim fear then the victim's mental state would be relevant to proving the offence. Naturally, if there was no intention to cause harm nor the deemed intention under section 21A(3) then an offence has not been committed.

Course of Conduct

I am of the view that the meaning of "course of conduct" involving specified activity is clear. As worded the court will be required to have regard to the behaviour of the accused in addition to the specific act of, for example. telephoning. In many criminal offences the surrounding circumstances are examined in order to determine intent or, as in conspiracy, whether the offence has occurred.

As you are aware the requirement that the offender perform a specified act on "two or more" occasions was removed from an earlier draft. The wording is clear that the course of conduct is to include any of the listed acts. A numerical threshold is not placed on the number of times that the offender is to commit the specified acts/s of harassment.

Subsection 21A(3)

Whilst the comments raised in relation to the preference for intent/recklessness as being will recognised and understood concepts in the criminal law may be valid the subjective/objective test it not unknown in criminal law.

I refer in this regard to the test for self-defence enunciated in Zecevic V DPP (1987) 162 CLR 645: 61 ALJR 376 where the Full Court of the High Court determined that the appropriate question to ask is whether the accused believed (subjective test) upon reasonable grounds (objective test) that it was necessary in self defence to do so.

This requires a consideration of the accuser's own belief and then an application by the court of its own assessment of whether the force was more than was reasonable proportionate to the danger.

Case Study

The behaviour of the former client of NMLS, Mr Badier would not be criminal under the proposed section 21A as presumably he had neither the intention of causing Ms Fletcher harm, nor to be understood in all the particular circumstances, that his behaviour was likely to cause harm.

It is stated that the reaction of the victim was "reasonable" but that "our client's failure to see the effects of his actions was also reasonable, given that she worked next door....". The circumstances described are precisely those which the section seeks to avoid by requiring either specific intent or deemed intent after a consideration of the particular offender's circumstances."

Neighbourhood watch

It is presumed that those persons participating in Neighbourhood watch do not have the intent to cause harm.

Subsection 21A(4)

The categories referred to have been considered and are viewed to be adequately covered."

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