Stalking: Final Report (html)

7. Criminal law responses to stalking

Overview

• The criminal justice response to stalking is based on the stalking offence and offences relating to breaches of personal safety intervention orders (PSIOs).

• The core elements of the stalking offence are appropriate and do not need to fundamentally change.

• However, the offence should be amended to make it clear and more readily understood.

• There are problems with how the offence is applied in practice.

• Police need guidance on how to apply the offence.

• Further research is needed to understand why stalking cases do not progress from when they are reported and through other stages of the criminal justice system.

• There is no need for new breach offences under the Personal Safety Intervention Orders Act 2010 (Vic). But Victoria Police should improve how they respond to breaches. This should include explaining to victim survivors why they have not responded to an alleged breach.

• People who experience stalking should be provided with more protections in criminal proceedings.

• They should have access to alternative arrangements that make it easier and less traumatic to give their evidence than is currently the case.

• Court infrastructure and facilities should be designed to protect victim survivors.

• The accused should not be allowed to cross-examine victim survivors personally.

Stalking is a crime and should be treated as such

7.1 Stalking is a serious criminal offence in Victoria with a maximum penalty of 10 years imprisonment.^[1]

7.2 The stalking offence makes it a crime to engage in one or more of a range of behaviours more than once, or for an extended period.^[2]

7.3 A stalking case enters the criminal justice system if a stalking offence is reported to police. Police may then charge the accused and the matter might go to court.^[3]

7.4 The criminal justice system provides a way to stop the stalking behaviour and protect the person who is experiencing stalking. It enables stalking to be recognised as a harm in the community, providing a public forum to test evidence, hold an offender accountable and sanction the harm.

7.5 However, the criminal justice system is not dealing effectively with the stalking offence. There are barriers that prevent the offence progressing through the criminal justice system.

7.6 Participating in the criminal justice system can be a traumatic experience for victim survivors, especially when giving evidence. Previous reforms have focussed on making criminal trials less traumatic and safer for victim survivors in sexual offence and family violence matters. But people who experience stalking have less protection.

7.7 This chapter is about:

• making the stalking offence clear and more readily understood, and improving the ways it is applied

• prosecuting stalking cases more effectively

• police taking breaches of personal safety intervention orders (PSIOs) more seriously

• protecting victim survivors of stalking in criminal proceedings.

The criminal offence of stalking

7.8 Stalking was introduced as an offence in Victoria in 1994.^[4]

7.9 The law has been amended several times, for example, to include cyberstalking (see Chapter 3) and some types of bullying.^[5]

Table 12: The stalking offence and what must be proved

7.10 Establishing a ‘course of conduct’ is key to proving the physical element of the offence. The legislation has a detailed list of stalking behaviours that can comprise a course of conduct (see Appendix C). The behaviours are broad and ‘not always the same as the behaviour patterns forensic psychologists might define as stalking’.^[13]

7.11 The list also has a general ‘catch-all’ provision that includes acting in any other way that could reasonably be expected to:

• cause physical or mental harm to the victim, including self-harm, or

• arouse apprehension or fear in the victim for their safety or the safety of someone else.^[14]

7.12 The behaviours listed are not necessarily illegal on their own. But when the behaviours come together in a course of conduct directed at a victim survivor, with a specific intent, the behaviour becomes a crime.

7.13 It is the course of conduct that must have been committed with the required state of mind, not the individual behaviours making up the course of conduct.

7.14 For the accused to have the required state of mind, they must have an intention to cause the harm that can be established in any one of three ways (see Table 12).^[15]

7.15 The stalking offence applies even if the victim survivor was outside Victoria, as long as the course of conduct was in Victoria.^[16]

How well is the stalking offence working?

7.16 Criminalising stalking has inherent difficulties because it can involve actions that are not criminal by themselves, such as calling someone on the phone or sending gifts.^[17]

7.17 Stalking offences in other jurisdictions have gaps that Victoria has already addressed. For example, stalking offences elsewhere have been criticised for not covering situations where the person stalked is not aware of the stalking, or where an accused does not understand the effects of their conduct. These situations are covered in Victoria.^[18]

7.18 In 2003 the Victorian Government introduced technology-based stalking provisions. For example, publishing information about a person online is on the list of behaviours that can make up a course of conduct.^[19] The provisions do not specify what technology needs to be used.

7.19 In Chapter 3 we discuss responses to cyberstalking. We note the feedback we received that the stalking offence is technologically neutral enough to cover cyberstalking.

The fault element is working well in practice

7.20 We heard that the fault element of the stalking offence (set out above in Table 12) is working well.^[20] Jim Shaw, from the Criminal Bar Association, told us that if a course of conduct (the physical element) can be proved, ‘there is normally no problem with the mental state elements’.^[21]

Course of conduct can be difficult to understand

7.21 We heard that a major source of difficulty with the stalking offence is applying the course of conduct element to the case to establish stalking.^[22]

7.22 Even those who thought the stalking offence was adequate acknowledged that the course of conduct element was vague and could be clearer in legislation than it is now.^[23] It can be unclear what exactly is needed for a course of conduct.

7.23 We were also told that people can be charged with the stalking offence even when what they have done is not really stalking.^[24]

7.24 It is challenging to get the balance right between legislation that is wide enough to capture behaviour that is stalking but narrow enough to exclude behaviour that is not.^[25] Even though the course of conduct element is ‘a somewhat vague concept’, we consider that its breadth is needed to cover the range of situations in which stalking arises.^[26]

7.25 However, we acknowledge that this can make it difficult to understand what a course of conduct is.

The stalking offence should be redrafted

7.26 The core elements of the stalking offence are appropriate and do not need to fundamentally change. However, we consider that the definition of stalking in the law could be clearer, especially the course of conduct element. If the law is clear, it is more likely that people will understand it and be able to use it effectively. It will also avoid some of the problems we discuss later, such as missed opportunities for prosecution.

7.27 Many people told us that the way the stalking offence is applied should be improved.^[27] This can be mostly achieved through changes in practice (discussed later).

Improving the course of conduct element

7.28 A course of conduct is not defined in the Victorian legislation. Instead, it is indirectly explained through the behaviours listed (Appendix C).^[28] But case law defines the term ‘course of conduct’ to mean:

• acts committed on at least two occasions or a single ‘protracted’ incident (for example, an extended act of surveillance)^[29]

• a pattern of conduct showing a ‘continuity of purpose’ in relation to the victim survivor.^[30]

7.29 We recommend adding these case law principles into the legislation to help clarify the course of conduct element. As Victoria Legal Aid told us in relation to the requirement for repeated acts, ‘it may be helpful to make this more explicit in the legislation.’^[31]

7.30 Domestic Violence Victoria suggested:

It may be useful to bring the case law principles that sit behind the law into the legislation to improve police responses through clearer understanding of the purpose of the legislation. The law is a blunt instrument and will not work for everyone, but the easier it can be made for those enforcing the law, the greater the benefit.^[32]

7.31 At this stage we do not recommend changing the scope of the course of conduct element. As the County Court cautioned, ‘care needs to be taken to avoid unintended consequences such as capturing behaviours within too short a period of time (for example, three calls within an hour), or too far apart (for example, three years apart).’^[33]

7.32 We agree with this view. Bringing the case law definition into legislation would consolidate the law in one place but it would not significantly change the substantive offence or create additional issues with the scope of the offence.

7.33 Dr Steven Tudor and Greg Byrne did not consider it necessary to include the case law principles in the legislation. But if there is an attempt to do so, they suggested this legislative formulation, which we regard as useful:

A person (A) engages in a course of conduct in relation to another person (B) if A’s acts are:

(a) committed on more than one occasion or are protracted in nature; and

(b) amount to a pattern of conduct that shows a continuity of purpose in relation

to B.^[34]

7.34 We note the point made by the Law Institute of Victoria that while the case law clarifies what a course of conduct is, it ‘is not necessarily helpful for those who are not lawyers’.^[35]

7.35 When drafting the new provisions, the government could also consider modernising the language of the offence and using definitions that are plainer than they are now.

7.36 We note that some other Australian states and territories describe the required frequency, rather than requiring a ‘course of conduct’.^[36]

7.37 Some legislation uses examples to explain how the law applies. To illustrate, ‘single punch’ manslaughter in the Crimes Act 1958 (Vic) includes the following example:

If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death.^[37]

7.38 The government could also consider if examples would help make the course of conduct element clear.

Redrafting the offence to make it clear

7.39 More broadly, the stalking offence should be redrafted to make it clear and readily understood.

7.40 Tudor and Byrne identified problems with the overall drafting of the stalking offence: ‘It is commonly agreed that the current drafting of s 21A, Crimes Act 1958 (Vic) is far from ideal’. They described the current drafting as ‘conceptually garbled and confused’.^[38]

7.41 They made a number of suggestions including to redraft the offence into three offences, based on intentional, reckless and ‘objective fault’ forms of stalking, so that the elements are clearly laid out and the different degrees of culpability clearly shown.^[39]

7.42 The specific revisions proposed by Tudor and Byrne are in Table 13. These suggestions should inform the redrafting.

Table 13: Redrafting suggestions for the stalking offence under section 21A of the Crimes Act 1958 (Vic)^[40]

7.43 Redrafting the offence would not result in any ‘major changes to the basic meaning of the elements.’ The point of redrafting is to make the legislation clear.^[42]

7.44 There have been efforts over recent years to redraft other offences, such as sexual offences, to improve their clarity. Sexual offences were redrafted using a new drafting style with a focus on ‘clearly defining the relevant offence’. The benefits of the new style include making clear ‘the facts that the prosecution must prove in a trial for the offence’.^[43] A similar approach should be taken to the stalking offence.

Other suggestions about the stalking offence

7.45 We heard a range of other suggestions for improving the stalking offence. Suggestions included:

• clarifying that the list of stalking behaviours in the Crimes Act is not exhaustive^[44]

• adding ‘humiliation’ to the list of stalking behaviours.^[45]

7.46 However, there is already a ‘catch-all’ provision in the list of behaviours, and most stakeholders told us that that the list is broad, comprehensive, and not causing any major problems.^[46] Therefore we do not recommend changing the list of stalking behaviours.

7.47 The Children’s Court told us about difficulties applying the stalking offence to children. They said that children may not realise the impact of their actions and it can be difficult to prove the required state of mind.^[47] We agree with these observations. We do not consider this to be a difficulty with the law, however. It highlights the challenge of using sophisticated developmental concepts in the criminal law, which may be beyond children and young people at their stage of development. If a court is satisfied in a particular case that a child does have that developmental understanding, and the other elements of the offence are established, then the offence will be proved. Otherwise, methods more appropriate to address the behaviour of children should be used, rather than the criminal law. In Chapter 6, we discussed the importance of therapeutic approaches for children who engage in stalking behaviour.

7.48 Victoria Legal Aid said there might be a need to ‘elevate’ the victim survivor’s apprehension or fear in the offence ‘so that it is clear that the victim needs to have an apprehension or fear’.^[48] However, we do not consider this appropriate because this ‘may disqualify victims who are considered less likely to be fearful’.^[49] Other serious crimes in which victims likely experience fear do not require an impact on the victim to be proved.^[50]

7.49 Tudor and Byrne proposed creating a new offence of ‘covert stalking’ which would more clearly cover cases where a person stalks someone intending that their conduct will not be discovered.^[51] They explained that there is a possible gap in the law where an accused person charged with ‘reckless stalking’ could argue that ‘because they took great care not to be noticed by the person they stalked, it was not probable that the victim would be caused relevant harm or fear’.^[52] While this may be a gap, we did not receive any feedback that this was causing any problems or that an offence was needed to recognise this type of offending.

7.50 A ‘harassment’ offence was also suggested.^[53] Currently harassing behaviour can be charged as stalking if it forms a ‘course of conduct’. We consider that an additional offence of harassment would not be appropriate, given the existing stalking offence, by itself, is confusing and challenging to apply.

7.51 We note that in England and Wales there is a harassment offence.^[54] But that legislation has been criticised on a number of bases, including that it has caused confusion about whether certain behaviour amounts to harassment or stalking.^[55] We do not propose to pursue this idea further.

The stalking offence is not applied well in practice

7.52 A major theme in this inquiry was that there are problems with how the stalking offence is applied in practice.^[56]

7.53 We heard that police may be unfamiliar with the stalking offence or find it difficult to apply to the facts of a case.^[57] This leads to a perception that the stalking offence is too difficult to prove in court (discussed next). It also leads to variation in how police apply the offence.^[58]

7.54 For its part, Victoria Police said that it saw ‘[n]o substantive issues … [with] the construction of the stalking offence’.^[59] It stated that ‘the most difficult aspect is gathering sufficient evidence to charge and then particularise and prove the offence (including demonstrating a course of conduct)’.^[60] We heard from them that ‘[i]t is more common for police to charge the substantive offences that make up the stalking behaviour than to charge the course of conduct as stalking’.^[61]

There is a perception that the offence is hard to prove

7.55 The Children’s Court explained that it ‘is seen as quite prohibitive on police to prove a stalking offence’. Even with evidence which corroborates the victim survivor’s account, the Court questioned whether police felt confident about getting a conviction.^[62]

7.56 Research suggests that stalking might need to escalate to ‘a perceptible degree of seriousness’ before victims notify the police, or before police decide to charge someone.^[63]

7.57 Victoria Police acknowledged ‘challenges in translating [stalking] behaviours into the brief and portraying the behaviours … within the parameters of the crime’, and that ‘The question of whether the evidence is insufficient to secure a conviction is always front of mind’.^[64]

7.58 Forensicare told us that ‘there is an issue around psychological harm and how this is proven in the stalking law’.^[65] Victoria Police similarly noted that ‘Mental harm on its own can be difficult to present to the courts’.^[66] The legislation clearly recognises ‘mental harm’ and further defines it to include ‘psychological harm’ or ‘suicidal thoughts’.^[67] Courts have also acknowledged the psychological impacts of stalking behaviour.^[68]

7.59 The Children’s Court stated that police do not rely on the psychological harm experienced by the victim survivor to establish the stalking offence.^[69] We also heard that police probably do not consider making use of expert evidence in stalking cases to establish psychological harm.^[70]

There are challenges with collecting evidence

7.60 Police may focus too much on collecting physical or digital evidence of the stalking behaviour, such as records of text messages, online communication or CCTV footage. Participants in a community legal sector roundtable explained:

Drawing from experiences with clients where the matter has reached the courts, there appears to be a preference by police for ‘hard’ evidence.^[71]

7.61 However, some stalking behaviours may not leave a trace and the strongest evidence may come from the victim survivor’s recounting of events.

7.62 One victim survivor reflecting on the legal response to stalking told us:

7.63 The person being stalked might report only one incident and police might not dig down to get the whole story.^[73] The full picture can be missed especially if individual acts are reported at different times or to different police officers.^[74]

7.64 Victoria Police explained how collecting evidence of stalking can be ‘the most difficult aspect’ of investigating the stalking offence:

This can be challenging due to difficulties for victims and others in identifying stalking behaviours, and difficulties in victims retaining evidence of interactions which, together, would demonstrate a course of conduct. Gathering evidence is also often a huge undertaking for police for stalking cases, particularly when it involves conduct online.^[75]

Application of the stalking offence must improve

7.65 The challenges described above result in negative outcomes, including:

• The behaviour may be characterised as other offending—for example, property or assault offences—which police believe is easier to prove, rather than as the stalking offence.^[76]

• Police may pursue a civil justice response when the behaviour should be charged as a criminal offence.^[77] For example, police may use the breach of an intervention order to pursue criminal action.^[78] This minimises the gravity of the stalking conduct, thereby undermining the justice system’s broader aim of preventing this behaviour in the community.

7.66 A similar approach may be taken at the prosecution stage. Even if stalking charges are laid by police and prosecutors, those charges are often dropped by prosecutors, because it is easier to prove incident-based offences or breaches of intervention orders.^[79] We discuss education on plea negotiations in Chapter 4.

7.67 These outcomes fail to reflect the severity of this criminal conduct. They can also have negative consequences for the safety of victim survivors, and for their faith in the justice system. In some cases, the civil response may not be enough to keep a victim survivor safe. In addition, victim survivors may be extremely disappointed when stalking offences are not charged or prosecuted.

7.68 Stalking is ‘likely to be concealed in the recording of other crimes’.^[80] This has implications for the interventions available for the accused (see Chapter 8) and judicial decision making—for example, bail decisions may be based on an incomplete picture of risk.^[81] It might also distort our understanding of the levels of funding required for stalking-related support services, or see victim survivors of stalking not meeting the eligibility criteria for such supports.

7.69 As the Sentencing Advisory Council explained, this approach compromises the accuracy of criminal justice statistics in ‘presenting a reliable estimate of the prevalence of stalking in Victoria’s criminal justice system’.^[82]

7.70 Finally, not using the stalking offence could lead to failure to recognise and prosecute this harm. It is important that the criminal law perform its ‘base functions’, which include deterring crime, denouncing the harm and protecting the community.^[83] For the criminal law to succeed in this, it needs to be applied predictably.

Police need improved guidance and training

7.71 The County Court, Magistrates’ Court, Victoria Legal Aid and others highlighted a need to improve the practical application of the stalking offence through more guidance and training for police.^[84]

7.72 We consider this to be the main way to improve how the stalking offence is applied. Research indicates that education results in frontline staff understanding better:

• the stalking offence

• what legal options victim survivors have

• what actions will keep victim survivors safe.^[85]

7.73 Education is also important to the success of the reforms that are in place and those to come.

7.74 Suggestions on what the guidance or training should consist of included:

• how to characterise stalking behaviours and understand when the offence should be used^[86]

• how to assess and apply the course of conduct element.^[87]

7.75 The Magistrates’ Court described a need for police training ‘in terms of stalking being charged and pursued’.^[88] However, separately in the civil context, the Court stated that ‘There is a distinction between criminal charges in relation to stalking and the need for safety and protection [through the civil system]. Sometimes they merge and sometimes they are dealt with differently. This needs to be given attention’.^[89] We agree with this assessment, and consider that this could also be a useful area for police training.

7.76 Victoria Legal Aid noted that police apply the ‘layman’s understanding of stalking’—with too great a focus on the physical conduct, at the expense of the offence’s mental elements—and are inconsistent in their use of the stalking offence.^[90] We heard that this inconsistency can be seen in relation to the course of conduct element, which police officers ‘are interpreting … widely’.^[91]

7.77 Victoria Police submitted that while it had not identified any issues with the stalking offence, ‘the most difficult aspect is gathering sufficient evidence to charge and then particularise and prove the offence (including demonstrating a course of conduct)’. It acknowledged that ‘stalking cases do require significant professional judgement … [and are an area that] can be challenging … because stalking behaviours can be so varied and are very contextual’.^[92] These could also be areas of focus for guidance and training.

7.78 In our interim report we make recommendations that would help improve how the stalking offence is applied:

• Victoria Police should engage with appropriate experts to provide training to enhance the understanding of frontline police to identify stalking behaviours

• Victoria Police should develop guidance for frontline police on interviewing and communicating with victim survivors of stalking

• Victoria Police should develop guidance for identifying and gathering information about stalking for frontline police

• Victoria Police should record every presentation to police with a report of stalking

• Victoria Police should refer complex cases to specialist police in criminal investigations units

• Victoria Police should use the Whole Story investigation framework for reports of stalking.^[93]

7.79 As the problems extend into the prosecution stage, it is important to ensure that the guidance and training is delivered to authorising officers and specialist police, not just frontline police.

What are other barriers to stalking offences progressing in the justice system?

7.80 Attrition studies follow the progress of cases through the stages of the justice system from report to prosecution, and to when they are finalised in court.

7.81 The Crime Statistics Agency conducted an attrition study of the stalking offence. It followed stalking cases from the police stage through to the court stage in the Magistrates’, Children’s, County and Supreme Courts, in the three years from 1 January 2016 to 31 December 2018. (We discuss the study briefly in Chapter 2).

7.82 The study made a number of findings, including:

• ‘most stalking incidents result in proven charges of some kind, although in many cases the stalking charges themselves are withdrawn, struck out or dismissed at court’.^[94]

• Incidents with a co-occurring offence had a higher proven rate (41 per cent) than those without (10 per cent).^[95]

• Stalking incidents that were family violence-related had higher proven rates (34 per cent) than those that were not family violence-related (27 per cent).^[96]

7.83 These issues could be an area for further exploration. For example, if non-family violence stalking is more difficult to prove than family violence stalking, there might be benefits in addressing why.

7.84 Feedback in this inquiry and research points to the following reasons for cases not progressing in the justice system, some of which overlap with the discussion above. We also discuss barriers to reporting in Chapter 2.

There is more to learn about why cases do not progress in the justice system

7.85 The findings on attrition, and information on why cases may not progress in the justice system, are useful and point to other areas that would be worth exploring.

7.86 We have a general understanding of why the stalking offence may not proceed. But there are other factors we have not been able to enquire into, for example:

• if some patterns of abuse are less likely to be prosecuted than others

• if some people or groups face more serious barriers to their case progressing than others

• if there are good reasons the stalking offence is not being authorised or dropped (we invited input from the Office of Public Prosecutions, which was unable to provide it because of its resourcing constraints)

• if there are common themes in what police find difficult in collecting evidence to support a stalking offence.

7.87 Knowing these things could help people who work in the justice system respond to cases of stalking using the criminal law. For example, it could identify:

• opportunities to provide victim survivors with more support, if lack of it means that they are not engaging with, or disengaging from, the criminal justice system^[105]

• any need to address myths that might influence the way police and prosecuting lawyers respond to stalking^[106]

• ways of improving capability or the resourcing available to police in investigating stalking offences^[107]

• opportunities to provide more guidance to the prosecution, such as prosecutorial guidelines on the stalking offence, as exist in the United Kingdom^[108]

• further improvements to the law on stalking.

7.88 We recommend that the Crime Statistics Agency conduct a qualitative review of police and prosecution stalking files to identify reasons for the attrition of the stalking offence in the criminal justice system.

7.89 A manual review of police and prosecution narratives of file closures may improve the understanding of why cases do not progress.

7.90 In addition, the review should include a qualitative review of the judicial reasons for not finding charges are proved if they go to contest in the Magistrates’ Court.

7.91 The review should also identify:

• the quality of existing data on the reasons for closing cases

• ways to improve the consistency of the data

• proposed future changes to data systems.

Breaching intervention orders: are new offences needed?

7.92 The civil response to non-family violence stalking is through the use of PSIOs (see Chapter 6). PSIOs are civil orders granted by the court to ensure the safety of victims of particular behaviours, including stalking.

7.93 The PSIO system provides a civil justice response to stalking, but it is a criminal offence to breach the conditions of a PSIO.^[110] For example, it is an offence to contact a protected person, or be within a certain distance of them, when this is prohibited under a PSIO.^[111]

7.94 Breaching a PSIO is a summary offence with a maximum penalty of two years imprisonment.^[112] PSIO breaches are mostly prosecuted in the Magistrates’ Court.^[113] But the charge may be heard in the higher courts if the person who has breached the order is charged with serious offences that are related to the breach.^[114]

What do we know about PSIO breach offences?

7.95 Between 2011 and 2020, 26,329 PSIO breach offences were recorded by police. Of these, 9,354 PSIO breach offences were sentenced in 5,006 cases.^[115] Approximately 20 per cent of PSIOs issued result in reports to police of alleged breaches.^[116]

7.96 Sentencing for PSIO breach offences was overrepresented in rural and regional areas. Even though only 24 per cent of Victorians live in rural and regional areas, ‘regional court locations accounted for 43 [per cent] of all cases involving PSIO breach offences in the Magistrates’ Court.’^[117]

7.97 As explained in Chapter 2, children in rural and regional areas are overrepresented in PSIOs. This disparity persists for breach offences sentenced. The Sentencing Advisory Council found that for PSIO breaches in the Children’s Court of Victoria, ‘two-thirds of charges (65 per cent) and cases (66 per cent) were sentenced in rural and regional Victoria, with only one-third sentenced in the Greater Melbourne area.’^[118]

7.98 The Sentencing Advisory Council found that there has ‘been a steady and considerable increase in recorded PSIO breach offences since 2016’. It observed this could be because of:

• increased breach behaviour

• increased reporting of breaches, or

• increased police responsiveness to breaches.^[119]

New PSIO breach offences are not needed

7.99 In our consultation paper we asked whether there should be additional offences in the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act) to address more serious breaches and, if so, what they should cover.^[120]

7.100 The Family Violence Protection Act 2008 (Vic) (FVPA) has an additional two offences for more serious breaches of intervention orders, with higher penalties (see box). By contrast there are no additional breach offences under the PSIO Act with higher penalties that consider any aggravating circumstances, such as persistent breaches or intent to cause harm or fear.^[121]

7.101 The Law Institute of Victoria (LIV) supported the inclusion of a section 125A equivalent in the PSIO Act. Victoria Police supported the inclusion of equivalents of sections 125A and 123A.^[122]

7.102 The LIV explained:

The nature of stalking involves multiple instances of prohibited behaviour against the affected person and can be severely traumatic for victim survivors. It is particularly concerning that penalties are not available for the persistent contravention of an order or safety notice where a risk of safety for the affected person has already been established.^[123]

7.103 One person who experienced stalking supported additional offences in the PSIO Act to address more serious breaches.^[124] Another suggested that if more than three breaches occur, police should lay charges automatically.^[125]

7.104 On the other hand, Victoria Legal Aid and Liberty Victoria opposed the addition of offences. They said that this:

• would result in ‘net widening’ and entrench more people in the criminal justice system^[126]

• any additional offending would be covered by existing offences^[127]

• judicial discretion in sentencing is enough to address the breach and behaviour.^[128]

7.105 The Victims of Crime Commissioner submitted that if including equivalent breach offences from the FVPA, ‘consideration would need to be given to how such offences might overlap with the criminal law offence of stalking’. The Commissioner explained that ‘a “persistent” contravention might be captured under the criminal offence of stalking’.^[129]

7.106 Experiences of stalking should be taken seriously, just as family violence is. Victim survivors of stalking should receive an appropriate response and protection when a PSIO is breached.

7.107 However, we do not recommend introducing new breach offences. In our view they are not needed for non-family violence stalking under the PSIO system because the existing law can cover and sanction breaches adequately. As the Victims of Crime Commissioner stated, persistent breaches of PSIOs are likely to be captured by the stalking offence.

7.108 New offences are also unlikely to change the outcome. In cases ‘where a substantive offence is committed in breach of an intervention order’, the breach, even if not charged, may be considered ‘an aggravated circumstance of the commission of the substantive offence’ for the purposes of sentencing.^[130]

7.109 A 2008 report by the Sentencing Advisory Council explains:

It may be that the circumstances in which the offence was committed are sufficient to charge the offender with a further substantive offence (such as criminal damage to property, assault or making threats to kill). In these situations, it is arguable that there is no need for an aggravated offence of breach of an intervention order because the relevant behaviour is covered by another criminal charge.^[131]

7.110 We agree with these comments. Further, a breach may be relied on to establish the ‘course of conduct’ element in stalking. This means that stalking behaviour can be addressed through both a PSIO and a criminal offence. Even though the FVPA contains additional breach offences, in contrast, there is no equivalent ‘family violence offence’.^[132]

7.111 The value and protection of PSIOs are only as good as the effectiveness of the enforcement of breaches. Adding further offences, in circumstances where the enforcement of breaches is neither consistent nor transparent, does not solve the problem of enforcing them.

7.112 Although introducing new breach offences under the PSIO Act might have symbolic value for victim survivors of non-family violence stalking, we conclude that it would be better to improve responses to and enforcement of breaches by police.

Improving police responses to PSIO breaches

7.113 Victim survivors feel frustrated about the police response to PSIO breaches because it is not made clear to them why the police do not respond. This is a problem with how police respond, not a problem with the law.

7.114 Multiple victim survivors told us about the poor enforcement of breaches by police, as well as poor explanations about why reported breaches were not enforced (see box).

7.115 It is important that breaches be dealt with for the system to have credibility. As one victim survivor who was granted a PSIO in 2020 explained:

7.116 Di McDonald, a person who experienced stalking, suggested:

7.117 However, data we received from the Sentencing Advisory Council might suggest, at least in part, an ‘increased police responsiveness to breaches’ since the PSIO scheme entered into force in 2011. Whereas police recorded only 919 breach offences in 2012 (the first full year of the scheme’s operation), they recorded 4,343 in 2020.^[141]

7.118 Even if these figures do reflect greater police responsiveness, there are still victim survivors who feel let down by the justice system. The police response to breaches needs to be more consistent.

7.119 Failure to respond to breaches could also compromise victim survivor safety and ‘add … to their distress and lack of trust in police’.^[142]

7.120 As we explained in our report Review of Family Violence Laws (2006), if police do not respond adequately to breaches, intervention orders will be perceived as ‘not worth the paper they are written on’ by victims and people who stalk.^[143]

7.121 Victoria Police should review its operational policy and guidance on responding to breaches of PSIOs and ensure that alleged breaches are responded to efficiently and effectively.

7.122 There is a clear imperative under section 101 of the PSIO Act for police to enforce the law. Police are given powers to arrest and detain a person in breach of a PSIO without a warrant (see box).

7.123 The Victoria Police Manual is limited in its guidance on responding to breaches of PSIOs. It states only that ‘Members may exercise a power to arrest without warrant under s.101 [PSIO Act], if there are reasonable grounds to suspect that a person has breached a condition of the order’.^[144]

7.124 In contrast, the manual has more detailed guidance on responding to breaches of family violence intervention orders (FVIOs). For example, the manual states that ‘conditions within an intervention order are to be strictly interpreted and enforced. There is no such thing as a “technical” breach … If evidence of contravention exists, members need to consider prosecution. In all cases, the matter must be investigated and a brief of evidence submitted’.^[145]

7.125 Good examples of police guidance are also available overseas (see box).

7.126 Where a decision has been made not to file a charge for a breach offence, victim survivors need to know why. We consider this to be important to meet the justice needs of victim survivors, including to have information and to feel safe and believed (see Chapter 1).

7.127 This is recognised in the Victims’ Charter Act 2006 (Vic). The Charter requires an investigatory agency to ‘inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence unless the disclosure may jeopardise any investigation of a criminal offence.’^[150]

7.128 The Charter also requires the prosecuting agency, as soon as reasonably practicable, to give a victim information about:

• the offences charged against the person accused

• if no offence is charged against any person, the reasons why

• if offences are charged, any decision to substantially modify or discontinue charges, or accept a guilty plea to a lesser charge.^[151]

7.129 In our interim report, and Chapter 6 of this report, we recommend guidance be developed to help identify stalking cases. In Chapter 8 we recommend the response to stalking focus on early intervention. These recommendations could support more targeted and effective responses to breaches.

The criminal trial process should be improved for stalking victim survivors

7.130 Victim survivors of stalking are witnesses for the prosecution in criminal proceedings. They are participants in criminal proceedings who have an inherent interest in the response of the criminal justice system.^[152] This is reflected in the Victims’ Charter Act 2006 (Vic).^[153]

7.131 While all victims respond differently to stress, even well-conducted criminal proceedings and proper cross-examination can be traumatic and challenging. As we stated in our report The Role of Victims of Crime in the Criminal Trial Process (2016):

By far the most challenging [form of participation in the criminal trial process for victim survivors] is to give evidence as a witness for the prosecution. Some victims are able to meet the challenge with relative ease. For others, the experience can be harrowing. Their private lives may be exposed to public scrutiny. They may be traumatised by seeing the accused in court and may find the courtroom environment intimidating and stressful. Cross-examination in particular can cause victims distress and further emotional harm.^[154]

7.132 This must be considered together with the accused’s right to a fair trial and the right to make a full and proper defence.^[155]

7.133 It is important that court processes:

• are safe for people who experience stalking

• do not further traumatise them

• do not give accused persons new opportunities to cause harm

• enable people who experience stalking to give a reliable and accurate account of their evidence.

7.134 In Victoria, procedures are designed to minimise the trauma and distress involved in giving evidence for certain groups of victims.^[156] In this report, we refer to these as ‘special protections’.^[157]

7.135 Special protections have been introduced to protect victims in criminal proceedings. These changes have focussed on children, people with a cognitive impairment and victim survivors of family violence and sexual offences.

7.136 In Chapter 6 we discuss similar protections for victim survivors of stalking in the civil justice system.

A ‘protected victim’ category for victim survivors of stalking

7.137 The special protections in Victoria are summarised in Table 14.

Table 14: Special protections for witnesses under the Criminal Procedure Act 2009 (Vic), pt 8.2

7.138 Table 14 indicates that Visual and Audio Recorded Evidence (VAREs) is the only special protection available for stalking, and then only for witnesses, including complainants, who are children or have a cognitive impairment.

7.139 This lack of protection is particularly concerning as the court process may extend stalking activity.^[158] It may act as a disincentive for victim survivors to engage with the criminal justice system, and cause further fear and harm to those victim survivors who do.

7.140 In our report The Role of Victims of Crime in the Criminal Trial Process (2016) we explained how special protections can benefit victims of crime more broadly:

Ultimately, special protections are about protecting victims from unnecessary trauma, intimidation and distress, and ensuring they are able to give their best evidence. This rationale should form the basis of any expansion of existing special protections.^[159]

7.141 In that report, we recommended extending special protections to a new category of ‘protected victims’.^[160] We recommended that protected victims should include people who are likely to ‘suffer severe emotional trauma’, or ‘be so intimidated or distressed’ that they cannot give evidence or give evidence fairly.^[161]

7.142 Our recommendations did not depend on the type of offence. Whether a person would fit into this category would be decided on a case-by-case basis by the judicial officer, if they meet the threshold and other legislative criteria.^[162]

7.143 We also recommended that all child victims should be considered protected victims and be able to use special protections because ‘the child’s age alone is sufficient reason to protect them from the distress of giving oral evidence, and being cross-examined, in the courtroom in front of the accused.’^[163]

7.144 We also recommended a guiding principle to ensure that special protections are consistently applied and to assist courts in interpreting the provisions (see box).^[164]

7.145 In our report Committals (2020) we recommended amendments to the Criminal Procedure Act so that ‘the court may make directions for alternative arrangements for taking the evidence of any witness where the interests of justice so require, and taking into account the need to minimise trauma for victims and witnesses.’^[166] The Victorian Government has not yet implemented these recommendations.

7.146 During the current inquiry we heard support for protections for victim survivors of stalking in general court processes.^[167] This included giving the victim the option of not appearing in person.^[168]

7.147 In particular, the Victims of Crime Commissioner supported implementation of our recommendation for protected victims made in our report The Role of Victims of Crime in the Criminal Trial Process (2016).^[169]

7.148 Recently, the Victorian Parliament recognised the need for specific protections for victims of stalking in Victims of Crime Assistance Tribunal (VOCAT) hearings.^[170]

7.149 Our previous recommendations for a protected victim category and special protections should be implemented. The category would be broad enough to include victim survivors of stalking who meet the criteria. As the recommendations intended, it will also benefit victims of other crimes who fit the protected victim category.

7.150 Under this model, once a judicial officer determines that the protected victim category applies, victim survivors of stalking would benefit from special protections, such as alternative arrangements. This would fill current gaps in access to these special protections (see box above).

7.151 In line with our previous recommendations, the court should order the use of alternative arrangements for victims who are children, or who the court decides are protected victims, unless the court is satisfied that the victim is aware of their right to use those arrangements and is able and wishes to give evidence without them.

7.152 We have acknowledged the resource implications of extending all special protections to protected victims in our previous reports.^[171] We suggest limiting the special protections to the use of alternative arrangements at first. In this inquiry, that was the protection that we heard was most needed.

7.153 We have also noted potential issues with the quality of VAREs in our report Improving the Justice System Response to Sexual Offences (2021) and the value of ‘pre-recording’ all of the complainant’s evidence (instead of using VAREs and special hearings).^[172]

7.154 In that report we recommended a procedure to allow victim survivors in sexual offence trials to give their evidence in the form of a pre-recording. We suggested that the procedure should apply and operate in similar ways to other alternative arrangements. A similar approach should be adopted for victim survivors in stalking matters. The court should order pre-recording of evidence and its use in trial if the victim survivor wishes. The recording should be made available for appeals and any retrials.

7.155 It is likely that such an arrangement will be easier to make now than it used to be. In recent times there has been more flexibility in courtrooms through the use of technology (for example, due to coronavirus (COVID-19)). This flexibility should be used to protect victim survivors in stalking matters.

7.156 As we stated in our report on sexual offences, the process should be developed to ensure continuity of counsel and judge or magistrate through the pre-recorded evidence procedure and trial. Strong case management should ensure matters are resolved as much as possible before the protected victim completes their pre-recorded evidence.^[173]

The courtroom experience should be safe for victim survivors

7.157 We heard about the need for a safe courtroom experience for victim survivors of stalking. This included safe infrastructure and design in courtrooms,^[174] including for children.^[175]

7.158 These issues were also addressed in our report The Role of Victims of Crime in the
Criminal Trial Process (2016). In that report, we observed that the design and physical infrastructure of courts can make it difficult to minimise contact between a complainant and the accused.^[176] We recommended measures to protect victim survivors attending court in indictable criminal trials (see box).

7.159 In our report Improving the Justice System Response to Sexual Offences (2021) we acknowledged that some progress has been made on this front.^[177] Technology in courtrooms has been upgraded and there are more remote witness facilities.^[178] In that report, however, we found that more needs to be done.^[179] We recommended that court infrastructure and facilities should be equipped with technology that provides for the

best quality evidence and so contributes to a fair trial (see box).^[180]

7.160 Although these recommendations were not developed with victim survivors of stalking in mind, they would make it safer for this group to attend court or give evidence in proceedings. A safe courtroom experience is important to avoid the frightening prospect of coming face-to-face with the person who is stalking them and being stalked through the justice system.

Victim survivors should not be personally cross-examined by the accused

7.161 In the criminal justice system, the law prevents a person who is a protected witness from being personally cross-examined by the accused in sexual offence or family violence cases.^[181]

7.162 A protected witness is defined as:

• the complainant

• a family member of the complainant

• a family member of the accused

• any other witness whom the court declares to be a protected witness.^[182]

7.163 This protection does not apply in non-family violence stalking matters.

7.164 There was agreement in submissions and consultations that people who have experienced stalking should be protected during cross-examination.^[183]

7.165 For example, Sexual Assault Services Network suggested that cross-examining the victim survivor ‘is giving the perpetrator what they are seeking’.^[184] Jim Shaw, from the Criminal Bar Association, noted that the court’s power to prevent inappropriate cross-examination is not enough in these situations:

Stopping the accused from asking inappropriate questions does not solve the problem. It is the mere fact that the person is asking the question that is the problem.^[185]

7.166 Court proceedings could be used by the accused to perpetuate the stalking behaviour, and extend the trauma and distress for the victim survivor. This fact justifies a ban on the accused being able to personally cross-examine the victim survivor.

7.167 The ban already exists for victim survivors of family and sexual violence, where there are high risks of re-traumatisation. As we acknowledge in Chapter 1, family violence, sexual violence and stalking can all involve the exercise of power by one person over another.^[186] Many of the impacts can be similar, including fear of the person harming them.^[187]

7.168 But stalking charges may be prosecuted alongside other criminal charges. It is important not to limit the ban on cross-examination to cases that only have stalking charges. Extending the ban to cases that are ‘wholly or partly’ related to a stalking charge is consistent with the approach in the Criminal Procedure Act to sexual offences or family violence.^[188]

7.169 The law states that if the accused does not obtain legal representation to cross-examine a protected witness (after being given a reasonable opportunity to do so), the court must order Victoria Legal Aid to represent the accused for that purpose.^[189] This protects the accused’s right to test the evidence against them.

7.170 We recommend that Victoria Legal Aid should be adequately resourced to provide this representation.

1. Crimes Act 1958 (Vic) s 21A(1).

   ↑

2. Ibid s 21A(2); Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) ix; Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) [2.4]. See also Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 2, 75–6.

   ↑

3. Under Criminal Procedure Act 2009 (Vic) s 28(1)(b), offences (such as stalking) that are punishable by Level 5 imprisonment are, under certain conditions, able to be ‘heard and determined summarily’ by the Magistrates’ Court of Victoria. For this reason, most stalking cases that proceed to court are heard here.

   ↑

4. Crimes (Amendment) Act 1994 (Vic) s 3. See also Victoria, Parliamentary Debates, Legislative Assembly, 20 October 1994, 1383, 1384 (Geoffrey Coleman).

   ↑

5. Crimes (Stalking) Act 2003 (Vic) s 3 (cyberstalking); Crimes Amendment (Bullying) Act 2011 (Vic) s 3 (bullying). See also Department of Justice and Community Safety (Vic), ‘What Is Brodie’s Law’, Bullying—Brodie’s Law (Web Page, 13 August 2021) <https://www.justice.vic.gov.au/saynotobullying>.

   ↑

6. Crimes Act 1958 (Vic) s 21A(2)–(3).

   ↑

7. Ibid s 21A(2).

   ↑

8. Ibid.

   ↑

9. Ibid s 21A(8).

   ↑

10. Ibid s 21A(2); Judicial College of Victoria, ‘7.4.12 Stalking’, Victorian Criminal Charge Book (Online Manual, 12 September 2013) [41] <https://www.judicialcollege.vic.edu.au/eManuals/CCB>.

    ↑

11. Crimes Act 1958 (Vic) s 21A(3)(a); Judicial College of Victoria, ‘7.4.12 Stalking’, Victorian Criminal Charge Book (Online Manual, 12 September 2013) [41] <https://www.judicialcollege.vic.edu.au/eManuals/CCB>.

    ↑

12. Crimes Act 1958 (Vic) s 21A(3)(b); Judicial College of Victoria, ‘7.4.12 Stalking’, Victorian Criminal Charge Book (Online Manual, 12 September 2013) [41] <https://www.judicialcollege.vic.edu.au/eManuals/CCB>.

    ↑

13. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) ix.

    ↑

14. Crimes Act 1958 (Vic) s 21A(2)(g).

    ↑

15. Ibid s 21A(2), (3)(a)–(b); Judicial College of Victoria, ‘7.4.12 Stalking’, Victorian Criminal Charge Book (Online Manual, 12 September 2013) [41] <https://www.judicialcollege.vic.edu.au/eManuals/CCB>.

    ↑

16. Crimes Act 1958 (Vic) s 21A(7).

    ↑

17. Troy E McEwan, Paul E Mullen and Rachel Mackenzie, ‘Anti-Stalking Legislation in Practice: Are We Meeting Community Needs?’ (2007) 14(2) Psychiatry, Psychology and Law 207, 208; Emma Ogilvie, Stalking: Legislation, Policing and Prosecution Patterns in Australia (Research and Public Policy Series Report No 34, Australian Institute of Criminology, 2000) xii, 1–2.

    ↑

18. Crimes Act 1958 (Vic) s 21A(3); Troy E McEwan, Paul E Mullen and Rachel Mackenzie, ‘Anti-Stalking Legislation in Practice: Are We Meeting Community Needs?’ (2007) 14(2) Psychiatry, Psychology and Law 207, 209–212. See also Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 190–191. We note Dr Steven Tudor and Greg Byrne’s suggestion ‘for the offence of stalking to more clearly make room for cases of intentional covert stalking’: Submission 106 (Dr Steven Tudor & Greg Byrne PSM). We discuss this suggestion later in this chapter.

    ↑

19. Crimes Act 1958 (Vic) s 21A(ba)–(bc).

    ↑

20. Consultations 18 (County Court of Victoria), 24 (Criminal Bar Association); Submission 98 (Law Institute of Victoria).

    ↑

21. Consultation 24 (Criminal Bar Association).

    ↑

22. Consultations 2 (Children’s Court of Victoria (No 1)), 19 (Community legal sector roundtable).

    ↑

23. Consultations 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria), 13 (Victoria Legal Aid), 20 (Law Institute of Victoria).

    ↑

24. Consultation 13 (Victoria Legal Aid).

    ↑

25. Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 76–7.

    ↑

26. Submission 106 (Dr Steven Tudor & Greg Byrne PSM).

    ↑

27. Submissions 32 (Centre for Forensic Behavioural Science), 56 (Derryn Hinch’s Justice Party); Consultations 2 (Children’s Court of Victoria (No 1)), 13 (Victoria Legal Aid), 18 (County Court of Victoria), 24 (Criminal Bar Association).

    ↑

28. Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 75.

    ↑

29. Expressed by McDonald J as ‘conduct which is protracted or conduct which is engaged in on more than one separate occasion’ in Gunes v Pearson (1996) A Crim R 297, 306, (Supreme Court of Victoria, McDonald J, 31 October 1996) 18; Judicial College of Victoria, ‘7.4.12 Stalking’, Victorian Criminal Charge Book (Online Manual, 12 September 2013) [10] <https://www.judicialcollege.vic.edu.au/eManuals/CCB>.

    ↑

30. Berlyn v Brouskos [2002] VSC 377, (2002) 134 A Crim R 111, [24].

    ↑

31. Consultation 13 (Victoria Legal Aid).

    ↑

32. Consultation 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria).

    ↑

33. Consultation 18 (County Court of Victoria): see also Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 192.

    ↑

34. Submission 106 (Dr Steven Tudor & Greg Byrne PSM).

    ↑

35. Consultation 20 (Law Institute of Victoria).

    ↑

36. Criminal Law Consolidation Act 1935 (SA) s 19AA; Criminal Code Act Compilation Act 1913 (WA) s 338E; Criminal Code Act 1899 (Qld) s 359B.

    ↑

37. Crimes Act 1958 (Vic) s 4A(4).

    ↑

38. Submission 106 (Dr Steven Tudor & Greg Byrne PSM).

    ↑

39. Ibid.

    ↑

40. Ibid (emphasis omitted).

    ↑

41. Tudor and Byrne explain: ‘The phrase currently used in s 21A, “ought to have understood”, is relatively uncommon as an objective fault element. Usually, objective fault is defined in terms of some sort of reasonableness standard, rather than by use of the word “ought”. In this context, “ought” is somewhat ambiguous… [I]t seems much simpler and clearer to avoid the ambiguity of “ought” and make the objective fault element a more straightforward reasonable person test, as proposed above. This would be clearer and more consistent with other criminal offences.’: Ibid.

    ↑

42. Ibid.

    ↑

43. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) 8. See also ch 4.

    ↑

44. Submission 56 (Derryn Hinch’s Justice Party).

    ↑

45. Submission 106 (Dr Steven Tudor & Greg Byrne PSM).

    ↑

46. Consultations 18 (County Court of Victoria), 20 (Law Institute of Victoria), 24 (Criminal Bar Association).

    ↑

47. Consultation 2 (Children’s Court of Victoria (No 1)).

    ↑

48. Consultation 13 (Victoria Legal Aid). The law does not require victim impact to be proven where the accused person intends to raise fear or apprehension, or knew their conduct would likely raise fear or apprehension.

    ↑

49. Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 82.

    ↑

50. Crimes such as sexual offences and assault: Ibid.

    ↑

51. Submission 106 (Dr Steven Tudor & Greg Byrne PSM).

    ↑

52. Ibid (emphasis in original).

    ↑

53. Submission 32 (Centre for Forensic Behavioural Science). Derryn Hinch’s Justice Party recommended building ‘on the recent work of the Australian Law Reform Commission in relation to the conception of a Federal (or State) Harassment Act that might consolidate and centralise all of the country’s (or relevant State’s) existing criminal laws in relation to harassment’: Submission 56 (Derryn Hinch’s Justice Party), citing Australian Law Reform Commission, Serious Invasions Of Privacy In The Digital Era (Discussion Paper No 80, 2014) Proposal 14.

    ↑

54. In England and Wales, harassment is ‘criminal conduct which causes alarm or distress or puts people in fear of violence’. It is an offence to intentionally pursue a course of conduct that amounts to harassment. A ‘course of conduct’ in the case of harassment of a single person must involve conduct on at least two occasions. A course of conduct in relation to two or more persons means conduct on at least one occasion in relation to each of those persons: Protection from Harassment Act 1997 (UK) ss 1–2, 4, 7(2)–(3); Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate, Living in Fear: The Police and CPS Response to Harassment and Stalking (Report, July 2017) 18–19, 97. See also Director of Public Prosecutions (UK), ‘Stalking and Harassment’, Prosecution Guidance (Online, 23 May 2018) <https://www.cps.gov.uk/legal-guidance/stalking-and-harassment>.

    ↑

55. Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate, Living in Fear: The Police and CPS Response to Harassment and Stalking (Report, July 2017) 7, 24: see also at 26, 89 (recommending that the UK Home Office clarify the definition of stalking to reduce this confusion). While the Stalking Protection Act 2019 (UK) has since been introduced, note that ‘[t]here is [still] no specific legal definition of stalking’ in the UK: Director of Public Prosecutions, ‘Stalking Protection Orders’, Prosecution Guidance (Online, 20 January 2020) <https://www.cps.gov.uk/legal-guidance/stalking-protection-orders>. See also Submission 32 (Centre for Forensic Behavioural Science), noting that ‘The bifurcation of harassment and stalking has led to problems in some jurisdictions, such as the United Kingdom, but this is because the two concepts and patterns of behaviour are not clearly distinguished in the relevant legislation’.

    ↑

56. Consultation 13 (Victoria Legal Aid). See also Submission 56 (Derryn Hinch’s Justice Party); Consultations 6 (Magistrates’ Court of Victoria (No 1), 30 (Roundtable with multicultural and multifaith lawyers and legal stakeholders).

    ↑

57. Submissions 32 (Centre for Forensic Behavioural Science), 56 (Derryn Hinch’s Justice Party); Consultations 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria), 13 (Victoria Legal Aid), 18 (County Court of Victoria); Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 89.

    ↑

58. Consultation 13 (Victoria Legal Aid).

    ↑

59. Submission 115 (Victoria Police).

    ↑

60. Ibid.

    ↑

61. Consultation 25 (Victoria Police (No 2)).

    ↑

62. Consultation 2 (Children’s Court of Victoria (No 1)).

    ↑

63. Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 97.

    ↑

64. Consultation 25 (Victoria Police (No 2)).

    ↑

65. Consultation 36 (Forensicare (No 2)).

    ↑

66. Consultation 25 (Victoria Police (No 2)).

    ↑

67. Crimes Act 1958 (Vic) s 21A(8).

    ↑

68. See generally DPP v Sutcliffe [2001] VSC 43. See also Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 82.

    ↑

69. Consultation 2 (Children’s Court of Victoria (No 1)).

    ↑

70. Ibid.

    ↑

71. Consultation 19 (Community legal sector roundtable).

    ↑

72. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

    ↑

73. Submission 56 (Derryn Hinch’s Justice Party).

    ↑

74. Ibid.

    ↑

75. Submission 115 (Victoria Police).

    ↑

76. Consultations 18 (County Court of Victoria), 28 (Victorian Pride Lobby); Leana A Bouffard et al, ‘Still in the Shadows: The Unresponsiveness of Stalking Prosecution Rates to Increased Legislative Attention’ (2021) 73 Journal of Criminal Justice 101794:1–10, 2; Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) xiii; Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 89.

    ↑

77. Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 89. See also Consultation 2 (Children’s Court of Victoria (No 1)).

    ↑

78. Consultations 2 (Children’s Court of Victoria (No 1)), 24 (Criminal Bar Association).

    ↑

79. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) xiii.

    ↑

80. Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 90. See also Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) xiii; Consultation 18 (County Court of Victoria).

    ↑

81. Consultation 6 (Magistrates’ Court of Victoria (No 1)).

    ↑

82. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) xiii.

    ↑

83. Marilyn McMahon, Paul McGorrery and Kelley Burton, ‘Prosecuting Non-Physical Abuse between Current Intimate Partners: Are Stalking Laws an Under-Utilised Resource?’ (2019) 42(2) Melbourne University Law Review 551, 584.

    ↑

84. Consultations 6 (Magistrates’ Court of Victoria (No 1)), 13 (Victoria Legal Aid), 18 (County Court of Victoria).

    ↑

85. See generally Patrick Q Brady and Matt R Nobles, ‘The Dark Figure of Stalking—Examining Law Enforcement Response’ (2017) 32(20) Journal of Interpersonal Violence 3149; Ronnie B Harmon et al, ‘The Impact of Anti-Stalking Training on Front Line Service Providers: Using the Anti-Stalking Training Evaluation Protocol (ASTEP)’ (2004) 49(5) Journal of Forensic Sciences JFS2003354:1–7; Patrick Tidmarsh, ‘Training Sexual Crime Investigators to Get the “Whole Story”’ (PhD Thesis, Deakin University, 2016).

    ↑

86. Consultation 13 (Victoria Legal Aid).

    ↑

87. Consultation 18 (County Court of Victoria).

    ↑

88. Consultation 6 (Magistrates’ Court of Victoria (No 1)).

    ↑

89. Consultation 34 (Magistrates’ Court of Victoria (No 2)).

    ↑

90. Consultation 13 (Victoria Legal Aid). Victoria Legal Aid also noted that police ‘could do better in giving attention to the apprehension or fear element and the mental state of the accused. This would not require changing the legislation’.

    ↑

91. Ibid.

    ↑

92. Submission 115 (Victoria Police).

    ↑

93. Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) Recommendations 1–4, 6, 9.

    ↑

94. Sarah Bright, Lauren Barnaba and Melanie Millsteed, Attrition of Stalking Offence Incidents through the Victorian Criminal Justice System (Data Snapshot, Crime Statistics Agency, forthcoming).

    ↑

95. Ibid.

    ↑

96. Although non-family violence incidents include incidents where no offender is recorded i.e. where the offender is ‘not identified’: Ibid.

    ↑

97. Consultations 18 (County Court of Victoria), 28 (Victorian Pride Lobby); Leana A Bouffard et al, ‘Still in the Shadows: The Unresponsiveness of Stalking Prosecution Rates to Increased Legislative Attention’ (2021) 73 Journal of Criminal Justice 101794:1–10, 2; Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 89.

    ↑

98. Consultation 2 (Children’s Court of Victoria (No 1)); Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 89.

    ↑

99. Submission 56 (Derryn Hinch’s Justice Party); Consultation 19 (Community legal sector roundtable).

    ↑

100. Submission 56 (Derryn Hinch’s Justice Party); Consultation 13 (Victoria Legal Aid).

     ↑

101. Michelle Weller, Lorraine Hope and Lorraine Sheridan, ‘Police and Public Perceptions of Stalking: The Role of Prior Victim–Offender Relationship’ (2013) 28(2) Journal of Interpersonal Violence 320, 330.

     ↑

102. Consultation 21 (Small group meeting on stalking and women with disabilities).

     ↑

103. Consultation 25 (Victoria Police (No 2)).

     ↑

104. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) [2.25].

     ↑

105. Submission 49 (Victims of Crime Commissioner).

     ↑

106. Ibid.

     ↑

107. Ibid.

     ↑

108. Director of Public Prosecutions (UK), ‘Stalking and Harassment’, Prosecution Guidance (Online, 23 May 2018) <https://www.cps.gov.uk/legal-guidance/stalking-and-harassment>.

     ↑

109. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

     ↑

110. Personal Safety Intervention Orders Act 2010 (Vic) s 100.

     ↑

111. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) [2.8] (listing examples of conditions a court may include in an interim or final PSIO), [2.9].

     ↑

112. Personal Safety Intervention Orders Act 2010 (Vic) s 100(2).

     ↑

113. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) xii.

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114. Criminal Procedure Act 2009 (Vic) s 242. A higher court may hear a charge against an accused for a summary offence that is unrelated to the indictable offence before the court, but only if the accused consents and intends to plead guilty to the charge for the summary offence: at s 243.

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115. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) ix.

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116. 69,703 interim PSIOs and 57,890 final PSIOs were issued. Out of the combined total (127,593) issued, 26,329 PSIO breach offences were recorded by police: Ibid.

     ↑

117. Ibid xii.

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118. Ibid [6.3].

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119. Ibid [5.2].

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120. Victorian Law Reform Commission, Stalking (Consultation Paper, June 2021) Question 11.

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121. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) [2.10].

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122. Submissions 98 (Law Institute of Victoria), 115 (Victoria Police).

     ↑

123. Submission 98 (Law Institute of Victoria).

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124. Submission 36 (Ahmad Masri).

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125. Submission 62 (Name withheld).

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126. Consultation 13 (Victoria Legal Aid).

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127. Submission 47 (Liberty Victoria); Consultation 13 (Victoria Legal Aid).

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128. Submission 47 (Liberty Victoria).

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129. Submission 49 (Victims of Crime Commissioner).

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130. Andrea David et al, Breaching Intervention Orders (Report, Sentencing Advisory Council, 2008) [5.2.19].

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131. Ibid [5.2.14].

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132. See generally Heather Douglas, ‘Do We Need a Specific Domestic Violence Offence?’ (2015) 39 Melbourne University Law Review 434.

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133. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

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134. Ibid.

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135. Ibid.

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136. Ibid.

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137. Ibid.

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138. Ibid.

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139. Ibid.

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140. Submission 70 (Di McDonald).

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141. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) [5.2] Figure 16. In fact, with the exception of 2016, recorded breach offences increased every year. The other two potential explanations offered by the Sentencing Advisory Council for these increasing numbers were increased breaching behaviour and increased reporting: at [5.2].

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142. Submission 32 (Centre for Forensic Behavioural Science).

     ↑

143. Victorian Law Reform Commission, Review of Family Violence Laws (Report No 10, 2006) 372 [10.67].

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144. Victoria Police, ‘Responses to Non Family Violence Disputes’, Victoria Police Manual (Electronic Manual, January 2022) 8 [12].

     ↑

145. Victoria Police, ‘Family Violence’, Victoria Police Manual (Electronic Manual, January 2022) 17 [12.1].

     ↑

146. UK Home Office, Stalking Protection Orders: Statutory Guidance for the Police (Report, January 2021) 22 [102].

     ↑

147. Ibid 22 [103].

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148. Ibid 22 [104].

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149. College of Policing (UK), Stalking or Harassment: Advice for Investigators on Effective Investigation (Report, November 2020) 9.

     ↑

150. Victims’ Charter Act 2006 (Vic) s 8(1).

     ↑

151. Ibid s 9(a)–(c).

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152. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016): [17]–[18], [3.20]–[3.26].

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153. Victims’ Charter Act 2006 (Vic) ss 4(1)(ba), 7A.

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154. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.1].

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155. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24(1), 25(2); Liberty Victoria also referred to the accused’s right in section 25 of the Charter to be presumed innocent when charged with criminal offending: Submission 47 (Liberty Victoria).

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156. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.6]–[8.23].

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157. This is not a term used in legislation.

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158. Consultation 4 (Sexual Assault Services Network); Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018) 29–30; Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) [1.8]. See also Cleo Brandt and Bianca Voerman, ‘The Dutch Model: A New Approach to Policing Stalking’ in Heng Choon (Oliver) Chan and Lorraine Sheridan (eds), Psycho-Criminological Approaches to Stalking Behavior: An International Perspective (John Wiley and Sons, 2020) 251, 266 noting that legal disputes ‘may prolong the stalking behaviour’ in cases of family violence stalking.

     ↑

159. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.41].

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160. Ibid Recommendations 38, 40.

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161. Ibid Recommendation 37. This is similar to the definition of ‘vulnerable adult’ used in the Australian Capital Territory: Evidence Act (Miscellaneous Provisions) Act 1991 (ACT) s 42.

     ↑

162. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendation 38, [8.41]–[8.42].

     ↑

163. Ibid [8.43]. See also Recommendation 38.

     ↑

164. Ibid [8.97] Recommendation 41.

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165. Ibid xxvi.

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166. Victorian Law Reform Commission, Committals (Report No 41, March 2020) Recommendation 48.

     ↑

167. Submissions 32 (Centre for Forensic Behavioural Science), 56 (Derryn Hinch’s Justice Party), 65 (Code Black Threat Management), 98 (Law Institute of Victoria); Consultations 4 (Sexual Assault Services Network), 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria).

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168. Submissions 32 (Centre for Forensic Behavioural Science), 65 (Code Black Threat Management); Consultation 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria).

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169. Submission 49 (Victims of Crime Commissioner).

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170. As a result of legislative amendments that came into effect in March 2022, people accused of stalking must not be notified about, and do not have a right to appear and be heard at VOCAT hearings involving the people they are accused of stalking: Victims of Crime Assistance Act 1996 (Vic) s 34(4)(aa), 35(1A).

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171. Victorian Law Reform Commission, Committals (Report No 41, March 2020) [11.79]–[11.81] Recommendation 44; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.50]–[8.53].

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172. We preferred a procedure for pre-recording all of the complainant’s evidence to expanding the use of VAREs after hearing concerns about the quality of VAREs currently used for children and people with a cognitive impairment: Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021) [21.90]–[21.101] Recommendation 86.

     ↑

173. Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021) [21.102].

     ↑

174. Submission 49 (Victims of Crime Commissioner).

     ↑

175. Consultation 29 (Alannah & Madeline Foundation).

     ↑

176. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.112]–[8.116].

     ↑

177. Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021) [21.77]–[21.80].

     ↑

178. Ibid; Jaclyn Symes, Attorney-General (Vic), ‘Supporting Our Courts To Drive Down COVID-19 Backlogs’ (Media Release, 13 May 2021).

     ↑

179. Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021) [21.81].

     ↑

180. Ibid [21.84].

     ↑

181. Criminal Procedure Act 2009 (Vic) ss 353, 354, 356.

     ↑

182. Ibid ss 354, 355.

     ↑

183. Submission 47 (Liberty Victoria); Consultations 2 (Children’s Court of Victoria (No 1)), 24 (Criminal Bar Association).

     ↑

184. Consultation 4 (Sexual Assault Services Network).

     ↑

185. Consultation 24 (Criminal Bar Association).

     ↑

186. Bonnie Brandl, Candace J Heisler and Lori A Stiegel, ‘The Parallels between Undue Influence, Domestic Violence, Stalking, and Sexual Assault’ (2005) 17(3) Journal of Elder Abuse and Neglect 37, 44.

     ↑

187. Ibid 46.

     ↑

188. Criminal Procedure Act 2009 (Vic) s 353(1).

     ↑

189. Ibid s 357.

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