Offence to Harass Witnesses

– section 52A of Summary Offences Act 1966
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The offence of harassing witnesses is the sort of charge regularly heard in the Magistrates’ Court.
Examples of Offence to Harass Witnesses
  • Your brother has been charged with assaulting his girlfriend. You call the girlfriend and tell her that she shouldn’t be a witness for the prosecution. She tells you to leave her alone. You later turn up at her house and tell her you won’t leave until she agrees not to be a witness.
Questions in cases like this
  • Did you harass the witness?
  • Was the witness taking part in a criminal proceeding?
What are some of the possible defences to Offence to Harass Witnesses?

Defences to this charge can include a factual dispute, lack of intent, or the concept of beyond reasonable doubt.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has consequences for you and should be made after proper discussion with a criminal lawyer.

Maximum penalty and court that deals with this charge

The maximum penalty for this offence is 120 penalty units or imprisonment for 12 months. This is a substantial maximum penalty for a summary offence. It reflects the fact that the court takes these types of offences seriously.

The offence of harassing witnesses is the sort of charge regularly heard in the Magistrates’ Court.

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What is the legal definition of Offence to Harass Witnesses?

An accused commits an offence if they harass a person because that person has taken part, is about to take part or is taking part in a criminal proceeding in any court as a witness or in any other capacity.

Legislation

The legislation for this offence can be found in section 52A of Summary Offences Act 1966.

Elements of the offence

To prove this charge, the prosecution prove the following beyond reasonable doubt:

  1. The accused harassed a person; and
  2. The accused did so because the person has taken part, was about to take part, or was taking part in a criminal proceeding in some capacity.

1) Did the accused harass a person?
‘Harass’ has its ordinary meaning. An accused will harass a witness if they subject them to aggressive pressure or intimidation. The court will look at all the circumstances to determine whether the accused was harassing the witness.

2) The accused did so because the person has taken part, was about to take part, or was taking part in a criminal proceeding in some capacity
This element is very broad. You must not harass a witness who took part in a proceeding five years ago, or witness who is going to take part in a proceeding in a year, or a witness currently taking part in a proceeding. It must be a criminal proceeding, not a civil proceeding.

The victim does not need to be a ‘witness’ – it is sufficient if the accused harasses someone who takes part in a criminal proceeding ‘in any other capacity’. This could mean someone who agrees to help the police with their investigation, or the lawyer for the prosecution, or an expert witness, or a court translator.

Sentencing in the higher courts

Higher CourtIn the higher courts of Victoria, there were only 14 charges of Offence to Harass Witnesses that were heard in a span of years from 1 July 2011 to 30 June 2016. Most of these charges resulted in the accused being sentenced to imprisonment (64.3%). The rest led to wholly suspended sentences (14.3%), Community Correction Order (14.3%), and fine (7.1%).1

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.2

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, a total of 127 cases (148 charges) of Offence to Harass Witnesses were heard from 1 July 2013 to 30 June 2016. These cases led to a variety of sentences although the majority were sent to prison (39.4%). The rest were given the following sentences:

  • Community Correction Order – 23.6%
  • Fine – 18.9%
  • Wholly Suspended Sentence – 7.9%
  • Adjourned Undertaking/Discharge/Dismissal – 6.3%
  • Partially Suspended Sentence – 3.2%
  • Youth Justice Centre Order – 0.8%

Of the prison terms imposed, the longest was between 24 and 36 months although only 4.0% of those who were sentenced to prison were in this category. The majority were sentenced to a term between 6 and 12 months (26.30%) as well as less than 3 months (26.0%).

Of the fines imposed, the highest amount was between $5,000 and $20,000. This category was however the least imposed at only 3.6% of those who were sentenced to aggregate fines. Majority were sentenced to a fine that is between $500 and $1,000 (25.0% for aggregate) and $1,000 and $2,000 (7.1% for non-aggregate).3

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.4

Other important resources

 



[1] SACStat Higher Courts – Summary Offences Act 1966 (Vic) : s 52A – harass witness < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_7405_52A.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
[3] SAC Statistics – Summary Offences Act 1966 (Vic) : s 52A – harass witness < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_52A.html >
[4] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >