Online stalking

Reading Police v Gabrielsen [2011] SASC 39, in which the South Australian Supreme Court overturned a SA magistrate's decision in a stalking case under s 19AA of the Criminal Law Consolidation Act 1935 (SA). The magistrate had held that it was necessary to show intent to cause apprehension or fear for the victim’s personal safety, finding that there was no case to answer on that basis. The Supreme Court thought otherwise, finding that there is nothing in the section to justify the Magistrate's interpretation: intention to cause apprehension or fear of embarrassment is sufficient, with a case to answer being made out on that basis.

Section 19AA provides that a person stalks another if -

(a) on at least two separate occasions, the person —

(i) follows the other person; or

(ii) loiters outside the place of residence of the other person or some other place frequented by the other person; or

(iii) enters or interferes with property in the possession of the other person; or

(iv) gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or

(iva) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or

(ivb) communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or

(v) keeps the other person under surveillance; or

(vi) acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear;

and

(b) the person —

(i) intends to cause serious physical or mental harm to the other person or a third person; or

(ii) intends to cause serious apprehension or fear.

Gabrielsen appears to have sent "offensive and numerous" emails and text messages, with the Magistrate finding that -

It would be reasonable to conclude that the content of the materials sent would arouse any or all of anger, resentment, disgust and outrage in a reasonable person in [the recipient's] circumstances. The content combined crude insult with accusations of grave sexual impropriety.

Those communications were "likely to give rise to a reasonable apprehension or fear" on the part of the recipient that Gabrielsen -

• Would make allegations to the recipient's wife thereby causing them annoyance at least,

• Would cause a very embarrassing spectacle ruining his daughter’s wedding day,

• Would spread the allegations amongst the congregation of his church causing him great embarrassment,

• Would paint embarrassing allegations on the walls of his house,

• Would embarrass him in front of his employer.

The Magistrate found that there was no case to answer -

because important elements of the offence had not been made out even though there was a clear case that the emails and text messages had been sent, that they were offensive and, if acted upon by the respondent, would have the result of causing enormous embarrassment.

He held that -

In my view it is not open on the evidence to infer that the defendant intended to cause [the recipient] a serious apprehension or fear for his personal safety when sending the material I have referred to above.

The defendant's conduct may well be characterised as deplorable, causing distress and embarrassment to his former friends, but it cannot, in my view, taking the prosecution case at its highest, give rise to a case to answer on a charge of stalking.

In making the appeal against that decision the state argued that the Magistrate applied the incorrect test by importing the requirement that the material was intended to arouse apprehension or fear for personal safety.

The Supreme Court held that the Magistrate clearly found that offensive texts or emails were sent on more than two occasions and that they would give rise to a reasonable apprehension or fear. "An intention to cause a serious apprehension or fear of being embarrassed is sufficient to satisfy s 19AA(2)(b)(ii)" and that therefore a case to answer had been made out.