What is the legal meaning of Intimidation in NSW?
What is the legal meaning of Intimidation in NSW?
Intimidation is an element of numerous offences in NSW. Offences such as:
- Common Assault;
- Intimidating a Police Office;
- Intimidating Victims or Witnesses;
- Intimidating Judicial Officers; and
- Intimidating Judicial Officers.
One of the most commonly prosecuted offences in NSW involving Intimidation is “Stalking or intimidation with intent to cause fear of physical or mental harm”. It is also often attached to domestic violence proceedings, apprehended violence orders and common assault charges.
This article will focus on Intimidation as an offence, what it is defined as, and what the Prosecution must prove, including examples and defences.
The Offence - Section 13 of CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 ("the Act")
“(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.”
In NSW, Intimidation is considered a serious indictable offence, and if found guilty, the maximum penalty is 5 years imprisonment and up to a $5,500.00 fine.
Definition of Intimidation
Section 7 of CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 defines Intimidation as:-
“intimidation” of a person means–
“(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or
Note : An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.”
It is important to note that Cyberbullying is a recent addition to this list and this aspect of the offence is yet to be fully explored by the Courts.
What needs to be proved?
There are two significant elements the Prosecution will need to prove:-
- That you intended to intimidate or intended to attempt to intimidate a person; and
- That your actions constituted or would have constituted Intimidation as defined by the Act.
However, the Act provides several concessions that allow the Prosecution to prove their case with a lower burden of proof.
The offence requires “specific intent”, which means that the Prosecution must also prove that the accused intended to intimidate the victim. Despite the addition of the below subsection to the Act, it is sufficient for the Prosecution to prove that the Defendant knew that their action would “likely” cause fear.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.”
The addition of the word “likely” for this offence significantly lowers the burden of proof required for the Prosecution.
An example of this would be if Person A yelled at Person B in an aggressive manner with no actual intention of intimidating Person B, the former may still be found guilty of Intimidation.
It is not required for the Prosecution to prove that the person was actually intimidated. Therefore, it is enough for them to prove that the person could have been “likely” intimidated.
Referring to the previous example, if Person A and Person B got into a heated argument as a result of yelling, there could have been threats made by both sides, but neither person was intimidated. The Prosecution does not need to prove that they were actually intimidated.
“(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.” Section 13 of the Act
Additionally, it is not necessary for the Prosecution to prove that Defendant’s intimidating actions were successful.
For example, if a Defendant attempted to call a person, however, could not directly telephone them and leaves a voicemail message that could be deemed threatening. After the person does not check their voicemail, this may constitute an attempt to intimidate.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.” Section 13 of the Act
History of behaviour
Furthermore, the Act also provides that:-
“(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.” Section 7 of the Act
The Court may examine whether the person making the threat has a history of violent behaviour. This offence relies on the Magistrate to carefully consider the actions of the accused and the context and decide whether or not they objectively amount to Intimidation.
Examples of this are often involved in domestic violence offences where there is repeated behaviour by the Defendant.
- Proving that you did not commit the Act of Intimidation
- Proving that your acts were not intimidating
- That you did not intend to intimidate the person
Although intoxication is not a defence to this offence, the Courts have found that intoxication can be taken into account when determining whether the accused knew their conduct was “likely” to intimidate.