VIC Types of Evidence Accepted in Defamation Proceedings?

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Smith Grand

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27 January 2020
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I exposed my wife's extramarital affair through a social media post. I found out about her affair on my mother-in-law's mobile. My wife disclosed everything about her affair during a chat conversation with her mother. I made a video recording of those chat conversations between my wife and my mother-in-law as evidence of her cheating on me.

I have been reading on the defamation law and I understand that truth is a defence against defamation case, but my question to you experts is that can I use those video recordings taken from my mother-in-law's phone of the chat conversation between my wife and my mother-in-law as evidence during defamation case proceedings if they file a case against me?

What other charges you could possibly think of could be applied here? My post sticks to true facts without any menace or harassment statements.
 

Tim W

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How did you make these videos?
 

Smith Grand

Active Member
27 January 2020
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I recorded through my mobile phone camera. They are Whatsapp and Facebook messenger chat conversations between my wife and my mother-in-law where my wife accepted everything about her affair. My mother-in-law visited our house and she shared her phone password once because she wanted me to fix internet connectivity issues on her phone. That's when a message pop up which made me suspicious so I started investigating and found it out all about this.

Thanks
 

Rod

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The evidence is likely illegally obtained.

The court has a discretionary ability to allow illegally obtained evidence.

There is no way anyone can say whether a judge will accept the evidence into court, even with all the facts laid bare. All anyone can say is there is a good possibility the evidence will be acceptable.

However:

Why post anything online anyway? Sure you are hurt, but what about the effect on kids if you have any? What about her ability to retaliate and have you kicked out of the house?
What if she takes all monies out of the bank accounts?

Should this matter be kept quiet and discussed between yourselves before forcing her into a corner where she loses face?

You should allow emotions to settle before doing anything rash. Time is often a great healer. Maybe go away for a few days to clear your head before doing anything. Taking long exhaustive walks in nature helps.
 

Tim W

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Now you see, I'm a bit less charitable than Rod about what you've done here.

Sure, they could file a claim.
Not enough facts, and too many variables to tell
if it has any prospects of success.

I think you may have a bigger problem.
Not just the inadmissability of unlawfully obtained evidence.

Rather, what I'm wondering about here is the possibility that you've committed
a telecommunications interception offence, and/or the Victorian offence of
"Unauthorised access to or modification of restricted data".
 

Smith Grand

Active Member
27 January 2020
5
0
31
The evidence is likely illegally obtained.

The court has a discretionary ability to allow illegally obtained evidence.

There is no way anyone can say whether a judge will accept the evidence into court, even with all the facts laid bare. All anyone can say is there is a good possibility the evidence will be acceptable.

However:

Why post anything online anyway? Sure you are hurt, but what about the effect on kids if you have any? What about her ability to retaliate and have you kicked out of the house?
What if she takes all monies out of the bank accounts?

Should this matter be kept quiet and discussed between yourselves before forcing her into a corner where she loses face?

You should allow emotions to settle before doing anything rash. Time is often a great healer. Maybe go away for a few days to clear your head before doing anything. Taking long exhaustive walks in nature helps.
----------------------------------------------------------------------------------------------------------

Thanks Rod for your time here for sharing your valuable expertise.

just want to highlight few points here:

Mobile password was shared to me as I mentioned in my post so it could be argued that it is not illegally obtained.

Yes I agree with you the court has a discretionary ability to allow illegally obtained evidence if they think so. It can depend on how it is argued in court. The recordings may be admissible if the judge considers the importance of the evidence outweighs how it was unlawfully obtained.

A person who is having an extramarital affair will not confess openly that they were being unfaithful to the other partner and readily disclose all the details to them. Such things can only be found out if they are caught red handed or through their secret mobile conversations etc... Initially i was blaming myself for what she did but later when i found the evidence it made me understand how cruel she was as a person.

I agree with you Rod in such situations one has to keep quiet and calm and not carried away by emotions. I can't disclose all the details about what actually happened and I am not here to argue that I am right here but I gave her so many chances and forgiven her but she still continued the affair without showing any regret or remorse whatsoever.

I must say that i like your advise where you tried to offer both at personal and legal level. It is always good to stay away from legal issues and try to resolve it at personal level by being calm.
 

Smith Grand

Active Member
27 January 2020
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0
31
Now you see, I'm a bit less charitable than Rod about what you've done here.

Sure, they could file a claim.
Not enough facts, and too many variables to tell
if it has any prospects of success.

I think you may have a bigger problem.
Not just the inadmissability of unlawfully obtained evidence.

Rather, what I'm wondering about here is the possibility that you've committed
a telecommunications interception offence, and/or the Victorian offence of
"Unauthorised access to or modification of restricted data".

-------------------------------------------------
Thanks Tim for your time to reply to my question.

Look you are an expert here so I am not arguing anything against your comments but just want to highlight few points based on my understanding and reading that i have done so far.

My understanding is that telecommunications interception offence do not apply here because as per the "Telecommunications (Interception and Access) Act 1979 (Cth)" - Interception of telecommunications:
It is an offence for a person to intercept or do any act or thing that will enable that person or another person to intercept a communication passing over a telecommunications system. Interception of a communication passing over a telecommunications system means listening or recording the
communication without the knowledge of the person making the communication.

Due to the definition of passing over (s 5F) it would not be an offence to read a person’s inbox of emails or SMS messages without their consent because the messages have already been received and are not in transit

And regarding the offence "Unauthorised access to or modification of restricted data" also does not apply here because this offence for data held in a computer. And as per the court a mobile phone is not considered as computer.

CRIMES ACT 1958 - SECT 247G
Unauthorised access to or modification of restricted data
(1) A person who—

(a) causes any unauthorised access to or modification of restricted data held in a computer; and

(b) knows that the access or modification is unauthorised; and

(c) intends to cause the access or modification—

is guilty of an offence and liable to level 7 imprisonment (2 years maximum).

(2) An offence against this section is a summary offence.

(3) In this section "restricted data" means data held in a computer to which access is restricted by an access control system associated with a function of the computer.


I am not saying I am right here, there is a possibility that I might be missing something.

Thanks for your time again. Appreciate it.
 

Tim W

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...so it could be argued that it is not illegally obtained.
No, that couldn't be argued.
You were given access for a specific purpose, and you subsequently used it for another purpose.
A person who is having an extramarital affair will not confess openly that they were being unfaithful to the other partner and readily disclose all the details to them. Such things can only be found out if they are caught red handed or through their secret mobile conversations etc... Initially i was blaming myself for what she did but later when i found the evidence it made me understand how cruel she was as a person.
It may be a surprise to you, but having an affair is not actually an offence.
I agree with you Rod in such situations one has to keep quiet and calm and not carried away by emotions. I can't disclose all the details about what actually happened and I am not here to argue that I am right here but I gave her so many chances and forgiven her but she still continued the affair without showing any regret or remorse whatsoever.
Well then, it's time to adult up and face that this marriage is over.
There's no resolving this.

Oh, and at the very least, you're looking the offence called (for short) "Use carriage service to harrass"