In today’s day and age where Coronavirus is spreading like wildfire and people are worried about contracting this disease, is it possible to be convicted for joking about having said disease and transmitting this to another person?

This question is posed in light of a recent event unfolding where a young adult was allegedly pretending to be infected with Covid-19 and allegedly purposefully coughed on a NSW Police Force employee. The Police have alleged that this young adult approached a 71-year old female officer on duty in the Coffs Harbour Police Station. The Police allege that this young adult proceeded to cough on the officer on purpose claiming that he has Covid-19 whilst a friend was recording the incident.

Upon further enquiries it was found that the young adult did not in fact have the said disease. However, due to the intimidation caused by the intention to cause fear of physical harm to police officer, the young adult has now been charged of the following offence:

Stalk/intimidate intend fear physical harm or mental harm

The accused has been granted strict conditional bail and is due to appear in court on 6 May 2020.

The Law

Section 13 of The Crimes Domestic and Personal Violence Act 2007 provides that the alleged facts may amount to the offence being proven. The legislation states:

13   Stalking or intimidation with intent to cause fear of physical or mental harm

(1)  A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

(2)  For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3)  For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4)  For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

(5)  A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

Elements of the crime:

1. A person intimidates another person:

Intimidation is defined in section 7(1) of the Crimes (Domestic and Personal Violence) Act 2007 to include:

• conduct amount to harassment of the person; or
• an approach made to the person by any means that causes the person to fear for their safety;
• or any conduct that causes a reasonable apprehension of injury to a person

There is an objective test in determining whether the defendants conduct is such to cause a person to have a reasonable apprehension of injury the intimidation element is satisfied Director of Public Prosecutions (NSW) v Nikolovski [2017] NSWSC 1038 [19]. This case confirmed that all that is required for this offence to be proven is that a person intimidates another person with the intention to cause another harm, regardless of whether or not the alleged victim is a police officer in the execution of their duty Director of Public Prosecutions (NSW) v Nikolovski [2017] NSWSC 1038 [16].

2. Intention to cause the other person to fear harm:

The intention to cause the other person to fear physical or mental harm is proven if the offender knows that the conduct is likely to cause fear in the other person. Again, this element has a low threshold.

It is important to note that the prosecution does not have to prove that the alleged victim in fact feared physical or mental harm. Whether you committed this offence or just attempted to commit this offence does not matter, you are punishable as if you actually had committed the attempted offence.

In light of the above factual scenario it is likely that the prosecution have a strong case considering the below factors:

• Covid-19 is a serious condition which intentional transmission can also be prosecuted against;
• Every person is aware of the seriousness of Covid-19 in light of strict medical advice and government restrictions being imposed;
• Even if the offender was only joking, it is likely that the supposed prank would have resulted in any person fearing that they would become infected and sick;
• The offender was allegedly recording the events implying that some sort of reaction would be illicited from the alleged victim and in light of the current unfolding situation, it is likely that this would have caused fear of harm to the alleged victim
• The alleged victim would be considered particularly vulnerable to the effects of contracting this disease;
• The prosecution does not need to prove that the officer did in fact have fear;
• Even if the offender was only attempting to cause fear the offender is still guilty of the offence;
• The defendant’s conduct was such to cause any person to have a reasonable fear of harm;

However, there may be other circumstances of the current case which may affect the prosecution’s case. There may also be mitigating circumstances which the court may attribute more weight to in sentencing of this matter.

All cases are dealt with on a case-by case basis and the above information should not be considered as legal advice but general information only.

If you have been charged with a criminal offence, give Pannu Lawyers a call to speak to one of our experienced criminal lawyers on (02) 9920 1787 to find out how we can assist with your case. Some of our staff are working remotely and have the resources to facilitate telephone and skype conferences to ensure we do our part in flattening the curve whilst delivering quality legal services to those in need.