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False Accusations - Can I Use a Phone Recording as Evidence?

Discussion in 'Criminal Law Forum' started by Patrick, 18 June 2014.

  1. Patrick

    Patrick Active Member

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    My partner's ex is causing problems. They have a 5 year old child together. He has said to my partner before that if I don't leave her he will make up a story to the police about me being a paedophile. He said this to my partner in person and she was recording the conversation on her phone without his consent.

    He has now been referring to me as a 'kiddy fiddler' for a month now and has stated that he has filed reports about it. My question is, could that recording be used in my defence if he does indeed make these allegations, and I have to go to court to defend myself, even though he was not made aware that he was being recorded when he made the defamation statement?
     
  2. Worldly1

    Worldly1 Well-Known Member

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    Hi Patrick,
    Which state or territory are you located in?
     
  3. Patrick

    Patrick Active Member

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    I am in NSW. Any help would be greatly appreciated.
     
  4. Tim W

    Tim W Lawyer

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    Even if you have not committed any offences yourself,
    you have what may potentially be a very serious problem indeed.
    1. You need proper legal advice, not just a few folks' opinions from the internet.

    2. Do not speak to the police off your own bat. At least not until you have had legal advice.
      I mean that.

    3. It can be an offence to make recordings of phone calls.
      And unlawfully obtained material (such as unlawfully recorded phone calls)
      is not necessarily admissible as evidence.

    4. But, it can also be an offence to use a "carriage service" (ie the phone system)
      to harass, threaten or intimidate people.

    5. And all of the above is before we get into the civil law questions of defamation.

    If you now starting to think (and perhaps worry) that there is
    more to this than you thought, and that you might be getting into something
    that you don't really understand, you are probably right.
    If so, see item 1 above.
     
  5. Patrick

    Patrick Active Member

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    I've left out quite a bit of the story which I'm not sure might be relevant but I'll add it anyway.

    To start, there is no custody of the child and she has always had the child live with her. The child never sleeps over with him. She has just got a certificate to apply to family law court so that is in process as we speak.

    This all started when he found out that she started a relationship with me after they broke up. He would not leave her alone after she broke up with him and it all got worse when he found out about me. He was harassing her with phone calls and sending messages stating he was around the corner from her house to try and scare her, and even showed up to her house unannounced several times. He also threatened several times to kill me(this was said to her, not me).

    It all escalated when I left my girlfriends house to go home late one night, got to my house and realised he had followed me home from her house. He then threatened to kill me outside my house. The next day we decided to go to the police, made a report and filed for an AVO. The police also decided to charge him with intimidation. My girlfriend had messages and phone logs as proof of the harassment, but we had no proof that he followed me home or threatened to kill me. As luck would have it, he actually called my girlfriend while we were making the police report. She recorded the conversation(Again, without his knowledge - But the police had told us that we should record any conversations with him anyway) and put the phone on speaker so that the officer could hear the conversation. I confronted him and asked him why he followed me home and threatened to kill me and he admitted to what he had done.

    He got worse after being served the papers, using threats to get us to get rid of the AVO and intimidation charge even though we have no power to do that. It was around this time that the conversation I mentioned earlier happened, where he told my girlfriend he wants me gone or he will make up false claims about me being a paedophile. About a week after that he sent her a message saying that he is just looking out for his daughters best interests as there are a lot of "kiddy fiddlers" around these days. She replied "No one around her is one of those". He then replied "We don't know that". Shortly after those messages were sent he just flat out started accusing me of being a paedophile, never to my face but to messages and conversations with my girlfriend.

    The police are aware of all of this as we have had to deal with them due to him harassing us. As the AVO was decided to be non-urgent by the magistrate at the time of the mention, there are no interim orders in place. The next court date is next Tuesday so we are hoping we can get it put in place as he has gotten worse and is using his child as a tool to get back at me and my girlfriend.

    I have gone to get legal advice, and the main point brought up by the lawyer was, what proof does he have. He has no proof other than a story that he made up about his daughter crying when he asked her about me. Mind you, every time he saw his 5 YEAR OLD daughter he questioned her about whether she saw me and if she did he yelled at her not to talk to me. I have never been alone with the child and my girlfriend will testify to that.

    Really I was just wondering if it really comes down to it and he files a police report, can the recording I mentioned in my first post be used as evidence by the police before they decide to charge me or not? And is it an offence to file a false police report?

    Also, I mentioned in my third paragraph that we recorded him admitting to following me home and threatening to kill me. I realise we can't use the recording, but as the police officer was there when the phone call took place and heard the whole conversation, could the officer be a witness to the intimidation charge?
     
  6. Tim W

    Tim W Lawyer

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    I didn't say you can't use the recording, only that you need to be aware that it's not automatically admissible.
    Do mention it to the court - the court can choose to hear it - but is not obliged to.

    Don't forget - this may be confusing and confronting for you, but the Magistrates themselves
    do this stuff every day.
    When you get to court, tell it like it is. Don't embellish it, and don't over-pre-think.
    You should certainly offer up anything you have that supports what you are saying.
     
  7. Patrick

    Patrick Active Member

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    Im trying not to over think it but it's difficult when he is trying to ruin me and my girlfriends life. He has stated several times that he is going to end me and then end her and continually sends her messages saying she is putting the child in danger by having "that drug using smoking kiddy fiddler" around the child. He has also said several times that he is going to get full custody of the child and she will never see her.

    It has been 2 weeks since he said he has filed a full report to the police and nothing has come of it so I don't know whether he's just lying to scare us. I believe he is trying to get DOCS to investigate her to show she is putting the child in a dangerous situation by having me around her. He has also said several times that he has made reports to them as well.

    I'm just trying to prepare myself in case anything does happen.
     
  8. Tim W

    Tim W Lawyer

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    Start keeping a diary of what happens when.
    Who rang who, what they said. In particular, any threats made, to you or to anyone else.
     
    John R likes this.
  9. Rod

    Rod Well-Known Member

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    Re: telephone recordings. Check with your lawyer. My understanding with telephone recordings is that it is an offence to record a call that you do not participate in (ie tapping). My understanding (I'm not a lawyer), is that you can record your own conversations.
     
  10. Rod

    Rod Well-Known Member

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    BTW, what you can also do is make a transcript of the call and sign an affidavit that it is a true and accurate record of the conversation. Need to write transcripts the same day or not long after so it carries more weight in court.

    You're potentially in serious trouble if you do not get legal assistance.

    Record everything involving the other party and get a smart phone and take pictures and videos to support your case.
     

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