Evidence Collection

It is important to remember that the collection of evidence and investigation of a crime is the responsibility of the police. If you think someone is being stalked or is suffering harassment, their concerns should be reported to the police.

 

Evidence collection is an essential part of the investigation in order to establish corroboration of the stalking conduct. It is vital that as much information as possible is learnt about the stalker and his/her method of operation. Assessment of the potential threat posed by the suspect is also essential. Due to the potential danger inherent in stalking situations, threat assessment must be an ongoing part of any stalking case.

 

In order to collect valuable evidence, the Police may introduce some of the following strategies to assist in preventing victims from being harassed and/or to support a criminal complaint and/or support an Apprehended Violence Order.

 

Tips for victims of stalking

Telephone: Everyone has special ownership of their telephone and the lawful right to tell another person to either stop ringing them, or to place restrictions as to when someone can ring.

 

An example with an ex partner may be: tell him that he can only ring on the landline, not your mobile, and only on Tuesday and Thursday between 6pm & 6.30pm and ONLY for the purpose of arranging or exercising access to the children.

 

Basically if you advise a party that they either cannot ring or they must abide by restrictions, and this person BREACHES the request, it may constitute harassment and legal action may be taken. This can include charges or at the very least an Apprehended Violence Order can be applied for.  It is an offence for a person to use a carriage device, such as a telephone, to menace, harass or cause offence (Penalty, 3 yrs imprisonment) or makes a threat to kill (10 years) or cause serious harm (7 years).

 

Home:If a person owns or rents their home or business, theyhave the legal right to refuse any person entry into the boundary (yard) of the premises. Once informed not to enter the boundary and the other party ignores this request, they may commit a criminal offence, such as ‘Remain upon enclosed lands’ or ‘Unlawful entry’. By breaching this request they may also be committing a stalking offence.

 

How to inform the other party

When we look at evidence gathering we first need to take into account the perpetrator, and whether the perpetrator knows his behaviour is causing distress. This requires the complainant to communicate with the perpetrator. In no circumstances should a victim agree to meet the perpetrator to talk about the stalking.  This also applies to the responding to letters, telephone calls etc.  Ask a friend or your solicitor to contact them if you want to get a message to them.

 

Communication is sometimes best done in a business type letter to the other party by REGISTERED post, not in the general post. Allow time for delivery of the letter and then inquire from the Post Office, the time and date that the letter was delivered. Record this and the name of the person spoken to in a diary. Individual registered letters must be sent to each person that restrictions are being placed on.

 

The letter should be polite, low key, detailed and consist of two parts:

 

Part One - details what has happened, without evaluation, as seen by the victim.  Included with a description of the stalking behaviours should be as much detail as possible e.g. places, dates, times.

 

Part Two– describes what the victim wants to happen next:

 

Examples:

1.       No Contact.

I/We _____________ advise you ____________ that your privilege to contact (name) by ANY means is revoked. ANY breach of this request will be regarded as harassment and/or intimidation and I/We will seek legal action against you.

2.       No contact by phone or placing restrictions to contact one phone only.

I/We ________ advise you _______ that your privilege to telephone my/her land line number _____ (and/or) my/her mobile telephone number _______  is revoked. OR  I/We _______ advise you ______ that your privilege to telephone me/her is restricted to my/her land line number/my/her mobile number ______.  SMS messages (are/not) permitted. ANY breach of this request will be regarded as harassment and/or intimidation and/or an offence under the Commonwealth Criminal Code and legal action will be taken.

 

3.       No contact with proviso.

I/We _______ advise you _______ that unless with my/her express written permission, your privilege to telephone my/her land line number ______ and/or my/her mobile telephone number ______  is revoked. ANY breach of this request will be regarded as harassment and/or intimidation and/or an offence under the Commonwealth Criminal Code and legal action will be taken.

 

4.       Contact with conditions – used if you have children less than 18 years of age.

I/We _______ advise you _______ that you ONLY have permission to contact me/her through YOUR legal representative, or by telephone to my/her land line number _______ (and/or) my/her mobile telephone number _______ (Strike out any you don’t want) between the hours of ____am/pm  and ____am/pm New South Wales time each Monday – Tuesday – Wednesday – Thursday – Friday – Saturday – Sunday (Stipulate day/s).  (If you do not want SMS contact add) SMS contact (is/not) permitted. ALL contact is ONLY for the purpose of arranging or exercising access to the children. Contact by ANY other means, unless with my/her express written consent, is revoked.

 

If shared access of children, you could add the following to your message. This is useful where the children are with the other party on access weekends/days and if your child is hurt/injured then the other party can lawfully contact you – Remember if you only give permission to ring between certain times/days and something happens to your child outside those hours/days, they may not ring you as they may be concerned that you will make a complaint.).

 

Any contact outside these hours is by SMS message and ONLY for the purpose of arranging or exercising access to our children. Any breach of this request will be regarded as harassment and/or intimidation and/or an offence under the Commonwealth Criminal Code and legal action will be taken.

 

5.       No verbal contact, but contact via SMS message only.

I/We _______ advise you _______ that you ONLY have permission to contact me/her through your legal representative or via SMS message to my/her mobile telephone number _____.  Verbal contact is not permitted. All contact is ONLY for the purpose of arranging or exercising access to the children. Contact by ANY other means, unless with my/her express written consent, is revoked. Any breach of this request will be regarded as harassment and/or intimidation and/or an offence under the Commonwealth Criminal Code and legal action will be taken.

 

6.       No entry.

I/We _______ advise you _______ that ANY entry inside the boundary of my/her home at _________ is revoked. Any breach of this request will be regarded as trespass and/or harassment and/or intimidation and/or stalking and legal action will be taken.

 

7.       No entry with proviso

I/We _______ advise you _______ that unless with my/her express written consent, any entry inside the boundary of my/her home at _________ is revoked. Any breach of this request will be regarded as trespass and/or harassment and/or intimidation and/or stalking and legal action will be taken.

 

Note

Written permission should not be generic. Always stipulate the day, date and time. Use blocks of time. For example, from 10am to 1pm. As well as giving written permission, permission can be withdrawn at any time. Always keep a copy of your written or SMS permission in case of a dispute.

If the intimidating and harassing behaviour continues, record everything in a diary. Stalking requires a pattern of behaviour, that is, more than one incident. Intimidation requires only one incident.

 

Commence a Diary: Record everything, starting with the sending of the letter. If any incidents occur, record the time, date, place and what all parties said and did. Every time a person isfollowed, phoned, receives post or e-mail it should be recorded. The detailed diary entry should be made as soon as possible after any incident occurs and whilst the circumstances are fresh in the victims memory (contemporaneous notes). The more details recorded the better, for example, how the offender looked or sounded; what they were wearing; the make, and number plate or colour of their car.

Victims should try to alter their daily routine. It’s also good practice if they ask to be accompanied by friends whenever possible, and always try to let someone know their plans. They should also take a mobile phone with them when they go out.

Carry at all times a disposable camera. Disposable cameras should be kept on hand by the victim, in handbags and on the glove compartment of the victims car. A mobile phone can be used, however clarity issues arise with distance and/or when used at night time (no flash). As some digital images can be altered, it is recommended to use a disposable or film camera.

If a victim is confronted by the perpetrator in the street, they should walk into a shop and ask the staff to ring the Police immediately. They may also use their disposable camera to record evidence of the perpetrator being in the area.

Keep copies of offending e-mails. Offending emails should be kept on disk and a hard copy printed out. Originals should not be deleted.  Messages or photographs sent by the perpetrator to the victim’s mobile phone should also be kept. The police can download SIM cards to retrieve these messages. Messages left on answering machines by the perpetrator can also provide valuable evidence and should be saved.

Keep letters and parcels as evidenceeven if they contain frightening or upsetting messages. Do not throw them away and handle them as little as possible.

Taking a Screenshot

If a victim has received something suspicious or offensive on their computer, they should capture this evidence by means of a ‘Screen Shot’ or ‘Screen Dump’.  For more information see our technology stalking chapter. A screen capture can be taken in the following way:

·         Ensure what you want to capture is onscreen

·         Press the “Print Screen button on your keyboard. This button is oftenabbreviatedto “Prnt Scn” or something similar and is usually found in the top right hand corner of the keyboard.

·         Click on “Start.”

·         Click “Programs” or “All Programs.”

·         Click “Accessories.”

·         Double click on the program “Paint.”

·         When Paint is open, click on “Edit” in the toolbar, then select “Paste.”

·         You should see the image of your previous screen within the paint window.

·         Save this file onto your desktop. You will now be able to open the picture and it will show everything that was previously on your screen. This may be useful for providing evidence at a later date.

 

Inform Trusted Others:Victims should tell friends, family members, trusted workmates or, if appropriate, neighbours that they are being stalked. People who are unaware of the victim’s predicament may inadvertently disclose information to the stalker. Trusted others can be important allies in providing support and helping to document the stalker's activities. It may help to provide these people with a photograph or description of the stalker. Their observations should be included in the victim’s diary, as these people may be witnesses if legal action is pursued. Victims may also install a friend/s numbers (who are prepared to attend Court) into the speed dial of their phone. If they are confronted by the accused, they may be able to ring the friend’s telephone and by leaving the phone open, the friend can overhear the conversation.

Likewise if the perpetrator rings the victim while she is with trusted others, have a friend listen in. If no one is available, the victim may use a second phone to ring a friend. By holding the second phone to the first, the trusted friend can also listen in to the perpetrators conversation.

 

WITNESSES can play a vital part in prosecuting the perpetrator. It can be favourable not to rely on the victim’s testimony alone. Far too often the victim is on trial!

 

Likewise, the victim can ring triple 000 if the offender is present. After speaking to the operator the victim can leave their phone open. The operator will be able to listen to any conversation and update police who are responding. Triple 000 calls are also recorded, which again is wonderful evidence.

Be aware of closed circuit surveillance cameras in the street/club/shops etc. If a victim feels that they are being followed or if the perpetrator approaches them, they should stand within view of the cameras.

Using a video camera: Anyone contemplating videoing evidence should familiarise themselves with provisions within the new Surveillance Devices Act 2007 (NSW). It may be an offence to listen or record a conversation without the consent of the other party. Legal advice should be taken prior to using a video camera.

♣ ♣ ♣

 

Apprehended Violence Orders (AVOs)

All breaches of anAVO, should be reported to police as soon as possible, no matter how minor. Research has shown that due to power and control, the accused will breach the AVO to test the strength and courage of a victim. Generally the breach will be minor. By failing to report breaches, the other party will legitimise their reason for breaching the AVO and will be encouraged to continue breaching their AVO, which may then increases in frequency and severity 

 

It is strongly suggested that victims immediately commence a diary. Record all times, dates and places of any incidents, including what was said by all parties involved. This record should be made as soon as possible after the incident whilst the circumstances are fresh in the victim’s memory.  The diary can be a useful took if the matter does not go to court for some months.

 

Any breach of an AVO is a criminal matter. After taking a report and conducting an investigation, Police will make an assessment as to whether the matter can be prosecuted. If no action is taken on the breach, victims are entitled to have the reasons fully explained to them under the Charter of Victim’s rights.

Victims can aid police in the prosecution of matters by assisting them with proving their side of the story. For example, if the accused rang the victim on her telephone and threatened her, the police may not be able to take any action. Although telephone records would show that she received a telephone call from the accused phone, this does not prove the content of what was said or that the accused even made the call him/herself. It may be alleged that a friend made the call. However, if the victim has someone listen into the telephone conversation or if she rang a friend on another telephone and held it to the earpiece, there would be a greater chance of a successful outcome at court. The evidence of the victim, her friend, the diary entry and the phone records would all add weight to the prosecution case. Similarly, if the victim was confronted in the street, shopping centre etc, they should look for possible witnesses that can give an account to police. Photos, use of mobile/phone, security camera footage etc will be of immense assistance to investigating Police and may be the difference in attaining a successful prosecution.

 

Victims who have a current AVO may add further conditions to strengthen their AVO by attending the nearest Court office to apply for a variance. If there are children on the AVO, victims must attend a Police Station. If an AVO is about to run out and the victim wants it to continue, she must apply 28 days before it expires.

Moving Interstate

If a victim is moving interstate and wants her AVO to remain in force, she must take the AVO and register it at a Court in that state. A New South Wales AVO is not enforceable in another State until it is registered.

 

On the 7th March, 2011 the government announced plans to introduce a national database for domestic and family violence orders. This will allow domestic or family violence orders issued by a court in one jurisdiction (state/territory) to be automatically recognised in other jurisdictions (states/territories).

 

If you have children attending school, the school should be kept up to date with the AVO.