Prosecuting Stalking Matters

To prosecute stalking matters in New South Wales the prosecution must prove its case beyond reasonable doubt. That does not mean that the prosecution has to prove every piece of evidence beyond reasonable doubt. What the prosecution does have to prove beyond reasonable doubt is the essential elements. The essential elements are found in the offence provision section13 of the Crimes (Domestic & Personal Violence) Act.


What it is that the Prosecution must prove beyond a reasonable doubt?


  1. The accused stalked the victim;
  2. That stalking was done with the intent to cause fear of physical or mental harm to the victim or to a person with whom the victim has a domestic relationship.

Elements to be proved in a stalking charge:

  1. The accused stalked the victim. The definition in section 8 is what the prosecution must prove. This is the following of the person etc, and cannot be just one incident. It must be more than one act in order to satisfy that definition. If only one incident had occurred then the appropriate charge would be one of intimidation. 
  2. The second element to prove beyond reasonable doubt is that there was some intent. Intent, in ordinary language, can be explained as a person’s intent to stalk, and can be inferred from a number of factors including the accused’s behaviour, in addition to more direct evidence such as what the accused has said.


You can infer that a person intended to cause fear of physical or mental harm to the victim if they did something that was overt to the victim. Examples include: if an accused person chased the complainant down the street; if the accused broke into the complainant’s house; or if the accused approached the complainant in an aggressive manner; if they continually contacted the complainant via telephone; or any combination of the above.

Verbal threats are also indicative of a person’s intent. One of the most commonly used verbal threats in relation to stalking offences is “if I can’t have you nobody can”, or “I can’t live without you”.


‘Fear of the victim’

Section 13, at subsection 3, states that it is taken the accused intended to cause the fear of physical or mental harm if he/she knows their conduct is likely to cause fear in the other person. What is required is that it is likely, not that it actually does.

The prosecution doesn’t have to prove that the person who was actually stalked actually feared the physical or mental harm, just that the person who was doing the stalking intended that to be so. It should be noted that most victims of stalking are in fear of physical or mental harm from their stalker.


Mechanics of the Stalking Charge:

·       A complaint is made to police and is investigated. Police are responsible for evidence gathering which can include mobile phone records, landline records, call charge records, and warrants issued to listen to phone conversations. The police also have a program where the SIM of a phone can be downloaded to obtain the content of SMS messages and other stored information. Police will also interview other witnesses who may have observed some of the behaviour complained of and obtain statements from them. The Police may also obtain evidence from CCTV cameras and other records.

·       If there is sufficient evidence then the accused is charged or issued with a court attendance notice to attend court on a particular date.

·       If there are strictly indictable charges, that is, charges dealt with on indictment at the District Court which would include detaining (Kidnapping), sexual assault charges, or serious assault charges then the matter is automatically referred to the office of the Director of Public Prosecutions (‘the DPP’).

·       If there are no strictly indictable charges, the police prosecutor will review the matter and if the police prosecutor thinks the matter is serious enough, then it will be referred to the office of the DPP who will make a decision as to whether the DPP will take the matter over and elect to have it heard in the District Court.


These decisions are made on the basis of the following:

·       In the local court the magistrate has a sentencing discretion. There is a jurisdictional limit on the sentence that a magistrate can impose, usually being 2 years for any one offence. If there are multiple offences this can accumulate up to a period of 5 years.

·       If the DPP looks at the matter and decides that the objective seriousness of the matter is such that the magistrates sentencing discretion is not enough, then they will elect to refer the matter to the District Court.

·       When making a determination the DPP also looks at the prior criminal convictions of the accused person. It is more likely that the matter will be dealt with on indictment in the District Court if the accused has multiple prior convictions, or if the victim is vulnerable because of their age.

·       If the matter stays with the police prosecutor at the Local Court and the accused pleads not guilty, the matter will be listed for hearing in the Local Court. The police prosecutor will prosecute the matter before the Local Court magistrate. If the accused pleads guilty, the accused will be sentenced by the magistrate.

·       If the prosecution is to be conducted by the DPP, either because the charges are strictly indictable or because the DPP has elected to have it dealt with in the District Court, there will usually be a paper committal. A paper committal is where the police brief of evidence is handed by the DPP solicitor to the magistrate who determines if there is sufficient evidence for a jury properly instructed to find the offence proven beyond reasonable doubt. If the magistrate is satisfied, then the matter is committed for trial to the District Court. The accused is then arraigned. If he pleads not guilty the matter is set down for trial where the DPP will prosecute.  If the accused pleads guilty then he is sentenced by the District Court judge.