There has in the past been considerable concern over the inability of the police to intervene where a person 'stalks' someone. Legislation has been enacted which makes stalking an offence [Criminal Law Consolidation Act 1935 (SA) s 19AA]. Behaviour defined as stalking includes:
- following another person
- loitering outside the home of another person or a place frequented by the other person
- entering or interfering with property in the possession of another person
- giving or sending offensive material to another person, or leaving it where it will be found by, given to or brought to the attention of the other person
- publishes or transmits by means of the internet or some other form of electronic communication in such a way that it will be found by, or brought to the attention of the family member
- communicates with the family member or other members of the family by way of mail, telephone (or associated technology), facsimile transmission or the internet or some other form of electronic communication
- keeping another person under surveillance
- acting in any other way that could reasonably be expected to arouse another person's apprehension or fear.
It is very difficult to prove a person is guilty of stalking as the police will have to show that these behaviours occurred on at least two separate occasions and that the 'stalker' intended to cause either:
- serious physical or mental harm to another person or a third person, or
- serious apprehension or fear.
In some instances the mental element of the stalker is more squarely focused on 'possessiveness' and 'love' rather than any intention to cause serious physical or mental harm or serious apprehension or fear.
A person found guilty of stalking faces a maximum penalty of three years gaol, or five years gaol where there is either:
- a breach of an order (such as an intervention order or Family Court injunction), or
- when stalking, the person possessed an offensive weapon.
A person who is charged with stalking is to be taken to have been charged in the alternative with offensive behaviour. This means if the court finds the charge of stalking is not proved but is satisfied that the lesser charge of offensive behaviour is established, the court may convict the person of that charge.
Where stalking involves actions online or cyber bullying, or the posting or threat to post invasive images online, then reports may be made to the Office of the eSafety Commissioner - see Office of the eSafety Commissioner for more information.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.