Criminal Harassment (Stalking) Defence

What Is Criminal Harassment?

Criminal harassment — often referred to as “stalking” — is a serious criminal offence under Section 264 of the Criminal Code. The offence targets conduct that causes another person to reasonably fear for their safety or the safety of someone known to them. It is a hybrid offence, with a maximum penalty of 10 years imprisonment on indictment.

The prohibited conduct falls into four categories:

1. Repeatedly following the complainant or anyone known to them from place to place
2. Repeatedly communicating with the complainant or anyone known to them, directly or indirectly
3. Besetting or watching the complainant’s dwelling-house, workplace, or any place where the complainant happens to be
4. Engaging in threatening conduct directed at the complainant or any member of their family

The Crown must prove both that the accused engaged in the prohibited conduct and that the complainant was actually fearful as a result — and that the fear was objectively reasonable in the circumstances.

The Context Behind the Charge

Criminal harassment charges arise in a wide variety of circumstances, and many of them involve situations that are far more nuanced than the label “stalking” suggests:

• Relationship breakdowns: By far the most common context. After a separation, one partner’s attempts to communicate — to discuss the relationship, co-parent, divide property, or seek reconciliation — can be characterized as criminal harassment if the other partner does not want the contact.
• Custody and co-parenting disputes: Attending at a child’s school, activities, or the other parent’s home can give rise to allegations of watching, besetting, or following — even when the conduct is motivated by legitimate parenting concerns.
• Neighbour disputes: Repeated interactions, surveillance cameras pointed at a neighbour’s property, or confrontations over property boundaries.
• Workplace conflicts: Repeated emails, attendance at a former workplace, or contact with coworkers.
• Social media contact: Repeated messaging, commenting, or following on social media platforms — even where the contact is not overtly threatening.
• Mistaken identity or misunderstanding: Situations where the accused’s presence or communication was coincidental or had a legitimate explanation.

The challenge in many of these cases is that the accused’s conduct — viewed in isolation or from the complainant’s perspective — may appear alarming, but the full context reveals a very different picture.

The Immediate Impact of a Charge

Criminal harassment charges come with immediate and restrictive bail conditions that can fundamentally alter your daily life:

• No contact with the complainant — directly, indirectly, or through any third party, including on social media
• No attendance at the complainant’s residence, workplace, school, or any place they are known to frequent
• GPS monitoring in some cases
• Curfew requirements
• Surrender of firearms and potential revocation of your PAL
• Restrictions on internet and social media use — in some cases, a complete prohibition on accessing certain platforms
• Reporting requirements to police or a bail supervisor

Breaching any of these conditions is a separate criminal offence. We work to ensure your conditions are reasonable and liveable, and bring bail variation applications where conditions are disproportionate.

Our Defence Strategy

1. Challenging “Reasonable Fear”

The Crown must prove two things about the complainant’s fear: that they were actually afraid, and that the fear was objectively reasonable in the circumstances. Both elements are required, and both can be challenged.

Subjective fear: We examine whether the complainant was genuinely afraid or is characterizing their emotional state for strategic purposes. We look at:

• The complainant’s own behaviour — did they continue to engage with you, initiate contact, respond to messages, or seek you out?
• The timing of the complaint — was it filed in the context of a custody battle, a separation, or another dispute?
• The complainant’s statements to friends, family, and others — do they reflect genuine fear or frustration, anger, or a desire to control the situation?

Objective reasonableness: Even if the complainant was afraid, the fear must be objectively reasonable. A reasonable person in the same circumstances would need to feel the same way. We present the full context — the nature of the relationship, the content of the communications, the absence of any actual threats, and any other factors that demonstrate the fear was not objectively reasonable.

2. Lack of Knowledge

Criminal harassment requires that the accused knew — or was reckless or wilfully blind to the fact — that their conduct was causing the complainant to be harassed. If you genuinely did not know your conduct was unwelcome or was causing fear, this element is not satisfied.

We present evidence showing:

• The complainant never told you to stop contacting them
• The complainant continued to respond to or initiate communication
• You had no reason to believe your conduct was unwelcome
• Mixed signals or ambiguous communication from the complainant created a reasonable misunderstanding

3. Legitimate Purpose

Not all repeated contact is criminal. We establish that the communication or conduct had a legitimate purpose unrelated to harassment:

• Co-parenting responsibilities: Communicating about children’s schedules, health, education, and activities is not only legitimate but often legally required.
• Shared property and finances: Communicating about a shared mortgage, lease, vehicle, or financial obligations.
• Workplace necessity: Contact required by a shared workplace, professional obligations, or business dealings.
• Legal rights: Exercising lawful rights, such as attending a public place, picking up children pursuant to a court order, or attending at a property you own or have a legal interest in.
• Shared social circles: Attending the same events, social gatherings, or community activities is not besetting or following.

4. Challenging the Evidence

We scrutinize every piece of evidence the Crown relies upon:

• Phone records and text messages: We obtain the complete communication history — not just the selected messages provided by the complainant. The full record often reveals mutual communication, the complainant initiating contact, or context that changes the meaning of the messages.
• Social media records: We analyze platform-specific data — including message timestamps, read receipts, blocking/unblocking patterns, and the complainant’s own social media activity.
• GPS and location data: Where the Crown alleges following or watching, we examine whether the accused’s location can be explained by their own routine, work, or other legitimate activities.
• Surveillance footage: We review any footage that captures the alleged conduct to verify or contradict the complainant’s account.

5. The Complainant’s Credibility

In many criminal harassment cases, the complainant’s credibility is the central issue. We investigate:

• Prior inconsistent statements — differences between the complainant’s report to police, their written statement, and their testimony
• Motivations to fabricate or exaggerate — custody disputes, revenge, financial gain, or attempts to gain an advantage in family court
• The complainant’s own conduct — whether they continued to seek out or engage with the accused despite claiming to be afraid
• Corroboration (or lack thereof) — whether any independent evidence supports the complainant’s account

6. Alternative Resolutions

Where appropriate, we negotiate resolutions that avoid a conviction:

• Peace bonds (Section 810 or 810.01): The charges are withdrawn in exchange for a recognizance to keep the peace, with conditions including no contact with the complainant. A peace bond under Section 810.01 is specifically designed for criminal harassment situations.
• Diversion: Community service or counselling in exchange for a withdrawal.
• Counselling-based resolutions: Completion of relationship counselling, anger management, or other programming as a condition of withdrawal.

Collateral Consequences

A criminal harassment conviction has wide-reaching consequences:

• Firearms prohibition: A mandatory prohibition order under Section 109 of the Criminal Code.
• Employment: A conviction for harassment can disqualify you from positions in education, healthcare, childcare, law enforcement, and many other fields.
• Immigration: Serious criminal convictions can trigger inadmissibility findings for non-citizens.
• Family law: A conviction significantly strengthens the other party’s position in custody and access disputes.
• Peace bonds and probation: Ongoing conditions that restrict your freedom and require compliance for months or years.

Related Resources

• Domestic Assault Defence — criminal harassment charges frequently arise after domestic relationship breakdowns
• Uttering Threats Defence — often co-charged with criminal harassment
• Breach of Conditions Defence — understanding the no-contact and area restriction conditions that accompany these charges
• How Can They Charge Me With No Evidence? — understanding credibility contests and the standard of proof
• Collecting Digital Evidence — preserving phone records, social media, and communications that provide the full context
• Common Bail Variations — modifying restrictive conditions including no-contact orders and internet restrictions
• Firearms Licence Applications — a conviction triggers a mandatory firearms prohibition

Charged with criminal harassment? Contact us 24/7 for a confidential evaluation. These charges are defensible — but early action is essential.