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VIC What Evidence is Admissible in Court?

Discussion in 'Family Law Forum' started by kimbapuppy, 24 August 2016.

  1. kimbapuppy

    kimbapuppy Well-Known Member

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    I would like to understand whether the following artefacts are admissible as evidence under the following courts:

    a) Magistrates Court for an intervention order contested hearing
    b) Family Court

    The artefacts are as follows:

    1) Video recording taken without any parties knowing (video recordings were taken due to escalating conflict)
    2) Audio recordings taken on mobile phone conversation without the other party knowing
    3) Security video footage of the public court area
    4) Triple Zero operator audio recordings calling for police attendance
    5) Verbal information provided by Party C to Party A. Party A uses Party C's information against Party B.

    If the above is not admissible, what can be done to make them admissible?
     
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  2. Tim W

    Tim W Lawyer

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    Are you asking from real life, or is this what we call a "homework question"?
     
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  3. kimbapuppy

    kimbapuppy Well-Known Member

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    I am preparing for a contested hearing and this is indeed very real.
     
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  4. Tim W

    Tim W Lawyer

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    Are you the applicant or the respondent?
     
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  5. Tim W

    Tim W Lawyer

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    1. As a general rule, material that a party wants to use as evidence needs to be

    (i) Relevant to the question being decided
    (ii) Reliable
    (iii) First hand
    (iii) Logically probative of what it's supposedly proof of
    (iv) Preferably, lawfully obtained.​

    2. In Australia, it can be an offence for a private citizen to make telephone recordings;
    Because of that, any recordings you might make as a private person are not always and automatically admissible as evidence.
    And you can be separately prosecuted for making them.

    3. It can also be an offence to record in-person conversations without the knowledge and consent of those involved.
    Because of that, any recordings you make are not always and automatically admissible as evidence.
    And you can be separately prosecuted for making them.

    4. Same for video.

    5. Even though it is far less bound by the rules of evidence than other courts,
    the Family Court in particular does not always and automatically admit into evidence
    material which is unlawfully obtained <click here for a relevant news article>

    6. The court has a discretion to admit into evidence material that is unlawfully obtained.
    It also has a discretion to exclude it.
    In any event, you will be required to disclose its existence in advance.
    The court may not allow you to "ambush" the other party with unlawfully obtained material.

    7. Recordings of 000 calls might be admissible, because they are created by operation of law.
    However, the court might decide to limit what you can use them to prove.
    For example, a recording might be admissible to prove that police were called, but might not be admissible as proof that Person X assaulted Person Y (as the caller might be claiming in the recording).

    8. By comparison to item 7, material recorded in the normal course of business (such as footage filmed by shopping centre security as part of its normal operations) might not be admissible, unless it is relevant to a question of fact. You also can't use it to prove matters with which the person depicted has not been charged (or otherwise dealt with).

    9. Both 7 and 8 above assume that you can gain access to that kind of material.
    You may need to subpoena it.

    10. What you call "verbal information to Party C" (item 5 in your list) seems, at first look,
    to be textbook hearsay evidence.
    The law around hearsay evidence can be complex and confusing.
    At the very least, depending on what it is, how many hands it's been through, what you mean to prove by it, and whether or not Persons A, B, and C are available to give evidence, you may well find it excluded.
    There are many exceptions, ifs, buts, and unless-es.

    For the Family Law matter(s), you may find this document helpful.

     
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  6. kimbapuppy

    kimbapuppy Well-Known Member

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    Tim W, thanks for taking the time to respond.

    I took out an IVO on the ex-wife's brother due to an unprovoked altercation that took place where he assaulted me to prevent me from picking up my kids (there are no court orders and the ex-wife have agreed for me to pick up my kids). I have a video recording of this assault and also filmed my terrified daughter who was subjected to this violence.

    I took out the IVO as I don't want any issues when picking up my kids and certainly do not want them to be subjected to family violence. In retaliation, the ex-wife took out an IVO against me and a week later, her brother took out an IVO against me.

    I find the evidence admissible laws ironic as emails and text messages are admissible in court but video/audio recordings are not and can be prosecuted.
     
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  7. AllForHer

    AllForHer Well-Known Member

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    Are you asking because you intend on challenging their applications for IVOs?
     
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  8. kimbapuppy

    kimbapuppy Well-Known Member

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  9. AllForHer

    AllForHer Well-Known Member

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    Since you're all seeking IVOs, you're all essentially telling the Court you don't want to be around each other, so it's probably going to make more sense to the Court to just make the orders that protects all three of you and be done with it. After all, an IVO has no consequences to anyone unless someone breaches it.

    The risk of contesting an IVO as well is that you might end up with a finding of fact against you that you've been violent, and that's going to affect your family law proceedings far more adversely than just accepting the IVO without admissions, limiting contact with both respondents and turning your attention to the parenting matter at hand.
     
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