By Sonia Hickey and Ugur Nedim
Mr Khalesirad’s bail conditions had prohibited him from using social media or any public forum to make comment or post material in reference to Ms Lauga or her family.
That condition was recently varied after Mr Khalesirad’s criminal defence lawyer argued it infringes his client’s right to free speech.
Freedom of Speech
There is no right to freedom of speech in Australia.
However, the High Court has implied a right to freedom of political communication into the Australian constitution.
Mr Khalesirad’s lawyer submitted that the bail condition should be varied because it is “… a serious breach, in my submission, of nothing else but free speech”.
Supreme Court Justice James Douglas accepted that submission and varied the condition, stating:
“I have to balance the various elements of the public interest in this. There is certainly a public interest in political free speech,” he said.
Mr Khalesirad is not allowed to post defamatory comments about Ms Lauga, or her contact details, and he must adhere to conditions prohibiting him from directly contacting her.
Mr Khalesirad is charged with unlawfully stalking Ms Lauga between February 20 and August 27 of this year, by allegedly contacting her and posting inappropriate material.
But Mr Khalesirad’s lawyer contends there are factual problems with the prosecution case, including that the pair had previously been good friends.
Under the Criminal Code in Queensland, unlawful stalking includes engaging in any of the following conduct:
- Being near, following, watching or approaching a person;
- Contacting a person, including through the use of any technology;
- Watching, approaching, entering or loitering near a place where a person works, visits or lives;
- Leaving offensive material around where it could be found by, given or brought to the attention of a person;
- Providing offensive material to a person either directly or indirectly;
- Using harassment, threats or intimidation against a person (regardless of whether violence or threats are used); or
- Any act of violence, including threats, made against a person or property of anyone.
The conduct must cause the complainant detriment, or an apprehension or fear of violence, and the fear and apprehension must be reasonable in the circumstances of the conduct.
The maximum penalty is five years’ imprisonment.
Stalking in NSW
Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) makes it an offence to stalk or intimidate another person with intent to cause fear of physical or mental harm.
For a person to be found guilty, the prosecution must prove beyond reasonable doubt that the defendant knew that his or her conduct was likely to cause fear in the other person. However, the prosecution is not required to prove that the other person was actually in fear of physical or mental harm.
The maximum penalty is five years’ imprisonment and/or a $5,500 fine.
Mr Khalesirad’s case continues through the courts.