It is an offence to unlawfully stalk another person. Stalking as defined by the Criminal Law Consolidation Act 1935 (SA) includes where a person, on at least two occasions:
- Follows another person; or
- Loiters outside a person’s place of residence or some other place they frequent; or
- Enters or interfes with property in the possession of another person; or
- Gives or sends offensive material to another person or leaves it where it will be found by them or come to their attention; or
- Publishes or transmits offensive material by the internet or other forms of electronic communication in such a way that it will be found or brought to the other person’s attention; or
- Communicates with another person by mail, telephone, facsimile or the internet in a manner that could reasonably be expected to cause fear or apprehension in that person; or
- Communicates to others (by mail, telephone, facsimile or the internet) about the person is a manner that could reasonably be expected to cause fear or apprehension in the other person; or
- Keeps another person under surveillance; or
- Acts in any other way that could reasonably be expected to create apprehension or fear in another person; and
- These acts must be done with the intention to cause serious physical or mental harm to that person or a third person or with intention to cause serious apprehension or fear.
[Criminal Law Consolidation Act 1935 (SA) s 19AA(1)]
The offence can be aggravated if:
- the behaviour breaches another court order or an injunction (for example, an intervention order); or
- the offender was in possession of an offensive weapon; or
- if the victim is a vulnerable person (including if the victim is a current or former spouse); or
- for any other reason listed in s 5AA Criminal Law Consolidated Act 1935 (SA).
Maximum penalty: 3 years imprisonment (basic offence); 5 years imprisonment for an aggravated offence.
Alternative charge of offensive behaviour
Where a person is charged with stalking they are taken to have been charged in the alternative with offensive behaviour. This means that if the court is not satisfied that the offence of stalking has been made out but there is sufficient evidence to establish an offence of offensive behaviour, the court may convict the person of offensive behaviour [Criminal Law Consolidation Act 1935 (SA) s19AA(3) - see also Summary Offences Act 1953 (SA) s 7]
Cyber stalking and Cyber bullying
Cyberstalking is the use of information technologies to harass and intimidate an individual. In many ways it is similar to traditional forms of stalking but the use of sophisticated technology can make intrusions into a victim’s life far beyond those made possible by physical harassment.
Incidents of cyberstalking are recognised under the definition of stalking used in South Australian legislation (i.e. the inclusion of offences relating specifically to the use of internet and electronic technologies to communicate in an intimidating manner or to publish offensive material). However the prosecution of such offences, as with the traditional stalking offences, is rare.
Cyber bullying may be assault under the Criminal Law Consolidation Act 1935 (SA) [s 20] if there is a threat by the bully that they will physically hurt the victim, and either there is a real possibility that the bully will carry out the threat or is in a position to carry out the threat and intends to do so.
Under Federal criminal law cyber bullying and trolling may be illegal. This is because there is a law which makes using the internet to menace, harass or cause offence, illegal [Criminal Code Act 1995 (Cth) s 474.17]. The maximum penalty for this offence is three years imprisonment. Where the use of the internet to menace, harass or cause offence also involves sharing private sexual material, the maximum penalty is five years imprisonment. See: Distribution of Invasive Images ('Revenge Porn').
Despite the provisions of the legislation, the prosecution of stalking-type offences is very difficult. Not only must there be at least two proven instances of the behaviour but the mental element of intention to cause harm or create fear must be established by the prosecution (in each instance being relied upon). Police policy is to caution or warn an offender in the first instance and this, in a majority of cases, is an effective way of dealing with the problem.
The expansion of legislation to allow for intervention orders on the basis of cyberstalking provides an alternative to prosecution [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(4)]. As with any criminal offence, a charge of stalking/cyberstalking must be proved beyond a reasonable doubt. In contrast, an application for an intervention order requires only that it can be established that a danger exists on the balance of probabilities. In addition, given terms of imprisonment for stalking are rare, an intervention order potentially offers a longer period of protection than a conviction could (see Intervention orders).
Many websites, such as Facebook, will remove pages and content that is offensive and can also ban cyber bullies from using the site. Contact the website administrator or company to request material to be removed. Alternatively, a report may be made in some circumstances to the Office of the eSafety Commissioner, see Office of the eSafety Commissioner.
Cyber bullying and trolling may also be defamatory (damaging to a person’s reputation) – see Defamation.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.