VIC AVO Breach - phone evidence

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

marquis75

Active Member
30 December 2018
7
0
31
My ex supplied the police with my paper phone bill whereby it showed i called my daughters kindergarten to find out what days she was attending. It is being used as evidence for trial, is it a breach of privacy by her for opening the bill addressed to myself? It went to our former shared residence but i failed to change my phone bill address.
 

Migz

Well-Known Member
20 November 2016
325
43
719
Marquis75, please find below a little bit of light reading for you.

But 2 things to note; it is an offence to open anothers mail, but they can claim it was by accident, and its upto you to prove it wasn't an accident.
Which is pretty simple in your case as the ex then went on to use the contents of the letter against you.
Secondly, using the contents of the mail that is address to YOU and ONLY YOU, against you is the greater offence.




Tampering with mail in Australia is a Commonwealth offence.

The offence of tampering with mail includes interfering with mail receptacles, stealing mail before delivery and opening mail that you are not authorised to open, as well as a number of other illegal activities.

There are harsh penalties for tampering with mail, including fines and possibly even a prison sentence.

If you have been charged with tampering with mail or a related offence, it is a good idea to find an experienced criminal lawyer to advise you on your best defence.

What acts are included in the offence of tampering with mail?

The offence of tampering with mail comes under the Telecommunications and Postal Services Act 1989.

This act covers a large number of different activities that are considered to be Commonwealth offences. These include:

  • Forging postage stamps or knowingly using postage stamps which have been forged.
  • Stealing mail bags from Australia Post employees.
  • Stealing mail from Australia Post.
  • Tampering or interfering with mailbags.
  • Tampering or interfering with letters or other articles that are being delivered by Australia Post.
  • Obtaining a delivery item by deception.
  • Helping someone else obtain a letter or other delivery item by deception.
  • Using the postal service to harass or threaten someone else.
  • Interfering with a post box or stamp vending machine.
These offences don’t just relate to items that are carried by Australia Post, other mail carriers and delivery services are also included.

What are the penalties for tampering with mail and related offences?

The penalties for tampering with mail in Australia include a maximum prison sentence of five years.
Whether you receive five years imprisonment or two years imprisonment largely depends on whether you tampered with the mail with dishonest intentions or not.

Using the postal service to harass another person comes with a maximum penalty of one year in prison, while forging a postage stamp or knowingly using a forged postage stamp has a more severe penalty of 10 years imprisonment.

What if I accidentally open something belonging to someone else?

If you accidentally open someone else’s mail, this is not an offence. It is an offence to keep someone else’s mail or to obtain it dishonestly, but if it is wrongly delivered to your mailbox and you open it by accident, you should not face criminal charges.

Similarly, if you have been charged with tampering with mail based on an accident or error by Australia Post, you may be able to successfully have the charges against you withdrawn.

How can I defend myself against a charge of tampering with mail?

If you are facing Commonwealth charges as a result of interfering with the postal service, it is best to speak to a criminal lawyer as soon as possible.

Tampering with mail is considered a serious offence, and comes with harsh penalties, particularly if the judge perceives that you were doing it with dishonest intentions.

An experienced criminal lawyer can help you prepare your defence and advise you on the best course of action, so that you can hopefully avoid receiving the maximum penalty and spending time in prison.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
BUT, despite the above, if contacting the kindergarten is against the AVO, then you have still breached the AVO, even if someone else used your phone.

Just means you may both be punished, though I'm not sure the Federal Police have the time or resources to follow through with what they may consider to be a minor breach of Cth laws.
 

marquis75

Active Member
30 December 2018
7
0
31
Thanks for the reply. The bill haz my name and our former shared address where she still lives. She has opened it and given it to the police. They have photocopied it and highlighted phone calls to the kinder. I just want to highlight this maybe to the officer who is the informant or even the magistrate. Surely her opening my mail should come with consequences for her.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
Have you got a lawyer? If facing breaches of an IVO then a lawyer is good idea.

You can argue the evidence has been illegally obtained and seek to exclude it, however it may be the magistrate has the discretionary ability to admit it. This is where the advice of a lawyer is useful. Note the police can request phone records from your phone carrier showing the calls to the kinder so complaining may be of little use.

Her offence is a Federal offence and needs to be followed up by the Fed police and the state police can't deal with it. Any breach of an IVO is a state police matter.
 

GL1001

Well-Known Member
26 December 2018
17
2
74
You could try to object to it being admitted but it will probably be admitted anyway.

If they haven't got an affidavit of the person who took the call, or haven't brought them to trial, it should be pretty easy to have the phone bill discredited.
 

marquis75

Active Member
30 December 2018
7
0
31
Attached is just a typed summary from the person who took the call. It is not an affadavit its just a statement entered as evidence. I answered police questions as to why I contacted the kinder, this I dont dispute but its not trying to locate the protected person. I just don't think it's fair that my phone bill was opened and used against me. The informant is the officer who me ex went to. The person from the kinder wont be at the trial. It is a summary offence but she was doing all she could to try and get me to breach. Would character witness statements help me in court? I appreciate everyone's responses.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
she was doing all she could to try and get me to breach.

Putting down her actions and words into a affidavit might be useful to show what she is doing. It may not stop a finding of breaching by you, but it might lower any judgement against you, especially as her words/actions may show she is not in fear of you and may instead be taunting and baiting.

Did you get character statements first time around? Did they help then?
 

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
Respectfully... Even though you're not gonna like it..
Nope - your ex isn't doing everything she can to get you to breach... You called the pre-school. You breached the orders. She didn't make you.

You don't think it fair that your phone bill was opened? Hmm yep - get where you're coming from.... But, for what ever reason, the courts have deemed it necessary for specific orders to be placed upon you, presumably for the protection of the kid and the mother. You breached those orders. That is not negotiable. That is a fact. Now, you have two choices.
1. Suck it up, go to court plead guilty, maybe with mitigating circumstances (Are there???)
2. Plead innocence based on the fact that your mail was opened and hence the evidence is inadmissable. But you did call the pre-school... True?So go back to option 1.

so why did you call the pre-school? Have you breached any other orders? See if that is the ONLY dumb thing you've done you could get away with a warning.

witness statements? not all that important from my experience. The theory goes your boss, mates, mum and dad might think you're great and I'm sure they're right, but Domestic violence happens behind closed doors.... So your mates, boss etc will not have seen what happened at home when you were still with the partner...

So one thing you said... The ex is trying to get you to breach... Well you made it easy on her didn't you?
So help us out, why did you call the preschool? and how many calls?

Next - mate be smart, like I said, you're not gonna like much of what I've written... But you need to be smarter. I have no doubt avo's get abused by applicants. That might be the case here. Might not... But you will find yourself in jail if you continue to breach. If the phone call to the preschool is the only breach, you should expect a stern warning. Take the advice and do nothing - NOTHING - to give the ex a chance to get you in the same situation again.

Respectfully, I don't think Rod's suggestion to try to make the case the ex is being vindictive is a winner. It can just as easily look like you are not taking responsibility for your actions. After all, you did call the pre-school. You did breach the orders. Trying to diminish that on a technicality hints at not fully accepting responsibilty for your actions. IT seems you've called more than once? I really think you need to go on the defence not on the attack
 
Last edited:

marquis75

Active Member
30 December 2018
7
0
31
She was threatening to take my daughter overseas as the ex is from Europe and daughter is Australian born. My lawyer was rushing to put an airport watch list on and also make a parenting order. When I left the home I had no paperwork. I organized for my daughter to attend kinder but couldnt remember the days and hours so i could work out with my scattered roster some kind of set routine i could make to see her. The lawyer in email asked me for her times. I called the kinder simply to work on the parenting order. I not trying to as they put it "locate a protected person" as I know full well what kinder she was meant to attend. It did not occur to me that what I did was seen as a breach. My only offence and first experience with lawyers and avo. It's now a year later with family court, ICL, psyche assessments, peadiayric assessments, a gear later I'm fighting in the family court just to see my daughter. The avo is now in a final order until November. I've given up on my lawyers due to basically being worthless. For a first offence and a level of naivety on my behalf hopefully I get off lightly