By Jimmy Singh & Tayla Regan
The Case of McIlwraith v R  NSWCCA 13
On 18 June 2014, the offender entered properties in Baltic St, Fairlight. He was later arrested and charged with break and enter and stealing charges.
He faced a further charge of breaking and entering a house whilst being armed with an offensive weapon (tomahawk), and committing a serious indictable offence- to intimidate the victim with the intention of causing him to fear physical harm under s112(2) Crimes Act 1900.
Armed with intent to commit an indictable offence is considered a very serious offence under the law.
The serious indictable offence of intimidating the victim with the intention to cause that fear is section 13 Crimes (Domestic and Personal Violence) Act 2007.
The offender here entered the victim’s property.
When the victim approached the shed of his own property, the offender suddenly appeared from an alcove under the victim’s house wearing a beanie.
With a tomahawk in his hand, the offender lifted his hand and followed the victim down the side of the house, and eventually followed him into the next door neighbours’ home.
When the victim quickly ran and entered into the next door neighbour’s laundry, the offender followed by breaking into the laundry to approach the victim.
The offender then left the laundry and re entered the victim’s home by breaking into the French doors.
Police later found the offender lying under a bed and a doona in the main bedroom of the victim’s home.
The Main Issues
One of the issues in this case was concerning whether the offence under s13 Crimes (Domestic and Personal Violence) Act 2007, is an offence where the prosecution must also prove that the offender intended to cause the victim to fear physical harm at the time.
If that requisite intention or knowledge is required to be proven first (in order to be found guilty), the offender’s state of intoxication from drugs (that he was under the influence of at the time) will be relevant in determining whether he was capable or had the requisite intention or knowledge to cause that fear to the victim.
The original court found that s13 was not an offence that required proof that the offender had that intention or knowledge to cause fear of physical harm.
This was later appealed to the Court of Criminal Appeal who found that s13 is an offence that required proof of such intention or knowledge.
However, on the appeal the Court still found, that even if the offender’s state of intoxication was considered, the offender still must have known that his actions were likely to cause the victim to hold that fear of physical harm. The court found this by making inferences- discussed below.
As a result, the appeal was dismissed. The offender was sentenced to a total term of imprisonment of 4 years.
There is a penalty of up to 5 years imprisonment and/or $5,500 fine if you stalk or intimidate another person whom you have a domestic relationship with.
This is reflected in section 13 Crimes (Domestic and Personal Violence) Act 2007.
To be guilty of this, the police must prove each of the following:
- Your conduct amounts to stalking or intimidating someone; and
- You intended to cause fear of physical or mental harm, or you knew your actions were likely to cause that fear; and
- The person who is alleged to have been stalked/intimidated is a person you have or had a domestic relationship with.
Can I Be Guilty of ‘Intimidating’ or ‘Stalking’ if the Alleged Victim Didn’t Fear Physical or Mental Harm?
Surprisingly, s13(4) Crimes (Domestic and Personal Violence) Act 2007 says that, when the Court decides whether you are guilty of intimidating or stalking, it doesn’t matter whether the alleged victim actually feared physical or mental harm from your actions.
This means, you can still be guilty of charges of stalking or intimidating where the alleged victim didn’t actually feel intimidated or stalked from your actions.
What is the meaning of ‘Intimidation’ Charges?
Section 7 Crimes (Domestic and Personal Violence) Act says that ‘Intimidation’ is where you:
- Act in a way that amounts to harassment or molestation; or
- Approach someone in a way that causes fear of safety (this involves approaching someone by texting, calling, emailing or other technologically means); or
- Do something that causes ‘reasonable apprehension’ of injury, violence or damage to someone or that person’s property.
Intimidation often involves threats that result in fear for safety or violence or, even an attempt to pressure another person to do a certain act that causes fear of violence or harassment.
A person can be intimidated through either words or actions.
What is the meaning of ‘stalking’?
S7 Crimes (Domestic and Personal Violence) Act 2007 says, stalking involves either following a person or watching, frequenting or approaching a person’s:
- Business or work place; or
- Any place of social or leisure activity that the person frequents.
Can Past Unrelated Conduct be Raised in Court to Prove the Current ‘Stalking’ or ‘Intimidation’ Charge?
In determining whether certain conduct is ‘stalking’ or ‘intimidation’ under the law, the court can actually look into any other pattern of violence (including stalking behaviour) in the past, even if it’s unrelated to the current allegations.
Off-course, those past allegations, if brought up in court, are required to be proven by police beyond reasonable doubt (which gives the accused person the benefit of the doubt).
This is reflected in s7 & 8 Crimes (Domestic and Personal Violence) Act.
How Does the Court Decide if you Intended to Cause Fear or Knew Your Actions Were Likely to Cause Fear?
Unless you make admissions that you intended to (or knew your actions would likely) cause physical harm, it can be difficult for a court to determine whether you intended to cause that fear.
For this reason, the law says that the court can make inferences as to your intention or knowledge by looking at the conduct, or from circumstances of your conduct. This was expressed in an often-cited case of He Kaw Teh v The Queen  HCA 43, and it’s also applied in the recent decision of McIlwraith v R  NSWCCA 13.
In the case of McIlwraith v R, the court made inferences that the offender knew that his actions were likely to cause fear of physical harm to the victim.
The court made this inferential finding on the basis of the offender’s evidence as to his state of mind at the time, and his actions at the time.
The offender had said that, at the time he appeared and chased the victim from the side of the victim’s house to the next door neighbour’s house, where the victim ran to- the offender was “thinking about the occupant of the house and whether he would frighten them, and he admits that his conduct in relation to Arthur Zervas (the victim) when he first encountered him only moments before would have caused him to fear physical harm”.
The court found that the offender must have known that his actions of following the victim, from the victim’s home to the next door neighbour’s home (carrying an axe), were likely to cause the victim to fear physical harm.
What is the Criminal Law Meaning of ‘Domestic Relationship’?
You’re considered to be in a domestic relationship with the alleged victim where you and the alleged victim have (either currently or in the past):
- Been married to or in a de facto relationship;
- An intimate personal relationship with;
- Lived with in the same household;
- Lived as a resident in a residential facility;
- A family/relative relationship with;
This is reflected in s5 Crimes (Domestic and Personal Violence) Act 2007.
Examples of “Intimidating or Stalking” Behaviour
The case of R v Matthew James Rickard
The case of Mr Rickard demonstrates one example of where in the eyes of the court, certain actions have amounted to an offence of ‘stalking or intimidating’.
The case involved a breakdown of relationship between Mr Rickard and a lady by the name of Ms Talbot. The romantic relationship ended between the two.
On 5 March 2006, Ms Talbot began to receive a number of prank calls whilst she was out with another man, Mr Boyd. After returning to her home, she discovered that the lights in her home were not working. Ms Talbot turned the power back on and soon after Mr Boyd left the home to buy some cigarettes. Before leaving the house, he left his leather jacket on the lounge.
About 10 minutes after Mr Boyd left the home, there were noises outside and Ms Talbot’s dogs began barking loudly. After hearing the noise, she walked to the front room of her home where she found Mr Rickard standing.
Ms Talbot immediately told Mr Rickard to leave, however Mr Rickard began walking around her home, checking every room and asking if someone was there with her. As he did so, Ms Talbot repeatedly asked him to leave her home.
Mr Rickard saw the leather jacket on the lounge and began questioning Ms Talbot as to who the jacket belonged to. After not receiving a name, Mr Rickard took the jacket and left the home. The police were then called, and Mr Rickard was arrested shortly after.
Mr Rickard was charged with the offence of ‘Stalking or Intimidation with intent to cause fear of physical or mental harm’.
In defence to the charge, Mr Rickard claimed that at the time he had concerns about Ms Talbot’s health and that was what prompted him to go to her home that day. The Court did not accept Mr Rickard’s reasoning and drew the conclusion that Mr Rickard was there because he was concerned about Ms Talbot being with another man.
The Judge also accepted that Mr Rickard had done something that day in order to cut the power off in Ms Talbot’s home.
The lawyer for Mr Rickard urged the court upon sentence to take into account that the intimidation did not involve any assault. The Judge rejected this comment and stated that that no leniency will be considered just because a more serious offence was not also committed that day.
It was held that offences of stalking and intimidation are serious, and every person is entitled to feel safe in their own home. The Judge advised that serious consideration was given as to whether Mr Rickard should receive full time imprisonment for this offence.
Ultimately, the Judge sentenced Mr Rickard to imprisonment for a non-parole period of 18 months to be served by way of periodic detention.
The Case of Police v Trevail 
The case of Police v Trevail  involved threats to publish a video of a previous sexual encounter unless the person agreed to further sexual intercourse with them. The court in these circumstances determined that such an act is to be regarded as towards the upper end of the middle range category of an intimidation offence.
It was also discussed that where an intimidation offence lacks verbal threats, this cannot be treated as less serious without looking to the facts.
Deriving from the case of Kelly v R , a report by the Judicial Commission have expressed ‘that in some instances verbal threats may be seen as bluster, while violent behaviour by a man perceived to have a loaded gun in a residential home, without any demand, explanation or verbal threat, may appear highly intimidating.’
In light of the above examples, it’s clear that the offence of stalk or intimidate captures a wide range of behaviour.