QLD Criminal Law Standard on Emotional and Psychological Harm?

[John Thorton]

Mmmm,

Qld criminal code 359c(5)
(5) For section 359B(d)(i), it is immaterial whether the apprehension or fear, or the violence, mentioned in the section is actually caused

I don't think the prosecution need prove this person suffered emotional pain.

I think a solicitor could help you.

Regards
Gorodetsky

They do through the detriment clause.

 

[John Thorton]

It is a common law principle applying to crimes - causation. Recommend you get a lawyer. Not knowing about the fundamental principles of crimes and criminal procedures when defending a crime with potential jail time seems to indicate a lack of awareness of consequences. If you go to court and lose there are other unwanted side effects depending on your field of employment. Get a lawyer.

Potential jail time is out of discretion given the circumstances. I just find it poor form of the government to give such a wide definition which no specific explanation.

 

[Gorodetsky]

Oh, OK.

That's good. I was worried you were in a spot of bother.

Cause I thought it's reasonably foreseeable that telling someone's partner they'd been unfaithful, could lead to more than just being upset...some people consider breaking up with a partner over such stuff, that can be, you know, detrimental.

Good luck

Regards

 

[John Thorton]

I'm not trying to be clever. Reasonably arising detriment though? (serious mental, psychological or emotional harm?)

 

[Gorodetsky]

Hi,

You do seem correct, that if "emotional harm" is to be relied upon by the prosecution, it is part of 359 B (d)ii , which is not covered by the immaterial clause I mentioned.

But the definition of detriment in the legislation is that it "includes" a few points. I suggest it is not a complete list. Do you think the prosecution might rely on other "detriment" not listed, and not trivial?

 

[Rod]

Potential jail time is out of discretion given the circumstances. I just find it poor form of the government to give such a wide definition which no specific explanation.

Populist legislation from a unicarmeral parliament. Police do nothing for years about stalking behaviour, media gets hold of it, public gets fed up, ruling party lifts head out of the sand, senses easy votes are to be had, and voila - new law able to put people in jail without adequate protection for the innocent.

Can you please expand on "Potential jail time is out of discretion given the circumstances"? There's something I'm missing here about why this is so.

 

[John Thorton]

Populist legislation from a unicarmeral parliament. Police do nothing for years about stalking behaviour, media gets hold of it, public gets fed up, ruling party lifts head out of the sand, senses easy votes are to be had, and voila - new law able to put people in jail without adequate protection for the innocent.

Can you please expand on "Potential jail time is out of discretion given the circumstances"? There's something I'm missing here about why this is so.

Well just the circumstances of the offence and offender.

Hi,

You do seem correct, that if "emotional harm" is to be relied upon by the prosecution, it is part of 359 B (d)ii , which is not covered by the immaterial clause I mentioned.

But the definition of detriment in the legislation is that it "includes" a few points. I suggest it is not a complete list. Do you think the prosecution might rely on other "detriment" not listed, and not trivial?

No. It is the complete list.

 

[AllForHer]

What makes you think they have to prove detriment? Section 359B(d)(ii) is an 'or' clause, not an 'and' clause, as is the s359A list, which is an 'includes' list, not an 'is' list, which means it's non-exhaustive, and it's s 359E that makes unlawful stalking a crime, not s 359B, so 359E is what you are being charged under. It doesn't matter which descriptor in s 359B your action falls under; if your action meets any one of those descriptors in s 359B, you're guilty of a crime under s 359E.

Why does the government provide such broad definitions? Because it doesn't allow people to get away with violating the rights of others because they violated them slightly differently to what is "allowed".

 

[Gorodetsky]

Oh, you thought it was non-exhaustive too?

The 4 points included in the legislation are so broad as to make it effectively approximate a dictionary definition of detriment, even it you take JTs "complete list" interpretation. So....whatever.

Yeah, broad legislation to catch a broad range of intrusive and manipulative behaviours.

 

[Rod]

I read JT's post as saying if the prosecution runs with causing detriment under s359 B (d)ii, then they also need to prove the 'causing' element.

Much easier to convict under 359 B (d)i and the only saving grace to this ss is the objective test (eg: reasonably arising in all the circumstances).