Stalking or intimidation

What is Stalking or Intimidation?

Section 13(1) Crimes (Domestic and Personal Violence) Act 2007 NSW deals with the offence of stalking or intimidation. It states that 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 and is liable to the maximum penalty of imprisonment for 5 years or 50 penalty units or both. The said offence can be made out even if the person causing the physical or mental harm to another person is in a domestic relationship.


Stalking includes the following–

(a) the following of a person about,

(b) the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,

(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means.

Intimidation of a person means:

(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

What are the Elements of the Crime?

Physical Element/Actus Reus: Behaviour which constitutes stalking or intimidation including acts such as following a person, approaching, watching or frequently visiting a person’s residence, trying to contact the person by means which causes the person to fear for their safety. It further includes any conduct that causes a reasonable apprehension of violence or damage to any person or property.

Mental Element/Mens Rea: Intention to cause fear of mental or physical harm. The prosecution need not prove that the victim actually feared any physical or mental harm. The offence is one of specific intent.

What does the Prosecution have to Prove?

  1. There was behaviour on the part of the accused which constituted stalking or intimidation.
  2. There was conduct on the part of the accused that caused a reasonable apprehension of violence or damage to any person or property.
  3. The act of the accused was intentional (specific intent).

Onus of Proof

If you have been charged with the criminal offence of being in possession of a false document, you are innocent until proven guilty beyond reasonable doubt. The jury/Judge or the Magistrate will review all available evidence and circumstances of the case and make a determination that you have been guilty of an offence. This concept was discussed by their Honour of Dixon CJ in Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 242 where he said:

“All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged”.

What are the Defences Available?

Duress- You must prove that you were threatened or intimidated into committing a crime against your will to successfully raise the defence of duress.

Necessity – Where you are compelled by a threat of danger to commit the offence.

Lack of intention and legitimate reason can also be pleaded in some circumstances. 

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