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One Punch Legislation Or The Coward Punch


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#16 pom

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Posted 01 April 2018 - 03:11 PM

 Hack posted. "I had one mate who had recorded the whole incident, police took his Mrs word for it, issued AVO and in court the magistrate didn't want to see or hear the evidence. Luckily my mate had a good lawyer, and got it admitted into evidence, an AVO dropped."

  In Qld and I believe NSW is similar. A recording made without the express consent of the people being recorded is not admissible as evidence in court.


Edited by pom, 01 April 2018 - 03:12 PM.

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#17 Commish

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Posted 01 April 2018 - 07:45 PM

 Hack posted. "I had one mate who had recorded the whole incident, police took his Mrs word for it, issued AVO and in court the magistrate didn't want to see or hear the evidence. Luckily my mate had a good lawyer, and got it admitted into evidence, an AVO dropped."

  In Qld and I believe NSW is similar. A recording made without the express consent of the people being recorded is not admissible as evidence in court.

 

Yeah since changes to the Listening Device Act in 2008 or 9 I think, yeah it is illegal and certainly inadmissible in evidence.  Which actually means nothing given the recent debacle with the Stefanovic brothers and the Uber driver.  Totally illegal, yet he gets to sell the stuff and it gets air time.  Go figure.


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#18 Weetbix

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Posted 02 April 2018 - 07:31 AM

So they can’t use security camera evidence any more?
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#19 pom

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Posted 02 April 2018 - 08:27 AM

I think you will find that is different. The law I referred to is to cover conversations secretly recorded , usually on smart phones.Commish. I don,t know that the law stops the recording being published, just makes it inadmissible as evidence in a court of law.


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#20 Commish

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Posted 02 April 2018 - 12:29 PM

I think you will find that is different. The law I referred to is to cover conversations secretly recorded , usually on smart phones.Commish. I don,t know that the law stops the recording being published, just makes it inadmissible as evidence in a court of law.

 

I'm getting old... forgot that the Listening Devices Act 1984 was rolled into the Surveillance Devices Act 2007  Anywho's, in NSW at least:-

listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear. maintain, in relation to a surveillance device makes it unlawful for a person to use a listening device to record a private conversation to which the person is not a party.  This prohibition seems appropriate on a public policy basis in order to protect privacy and confidentiality of the general public.

In addition to this prohibition, the SDA makes it unlawful to ‘record a private conversation to which the person is a party.’  Without qualification, this prohibition would seem to go too far in preventing the use of covertly recorded conversations that may need to be relied on in order to prove a party’s legal position.  In that regard, there is an exception to the rule that parties can avail themselves of if required.

Exception to the rule 

Aside from certain operations involving law enforcement officers, there is one main exception to when a recording of a private conversation can be used, without the consent of all parties to the conversation.

The SDA allows for a ‘private conversation’ to be used in circumstances where a principal party to the conversation (being a person by whom words are spoken, and can be the person using the recording device) consents to the recording, and where ‘it is reasonably necessary for the protection of the lawful interest of that party.’

Hence, what the Uber driver did was illegal.   I suppose the Uber driver could argue implied permission in that Karl had his phone on speaker and therefore did not care whether the Uber driver could hear or not.  Not sure that that implied knowledge would extend to allowing the recording of the conversation though.

Given that Hack resides in the northern extremity of NSW and I assume so does his mate, then the recording as outlined would have been in line with the "Exception To The Rule.  As far as the Magistrate not wanting to or refusing to hear the evidence.  Very strange as Magistrates are compelled to hear any form of evidence is available and able to be presented.


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#21 Weetbix

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Posted 02 April 2018 - 01:46 PM

Thank god - that would have been the stupidest law (well maybe not THE stupidest but right up there) to say someone who is in a difficult situation cannot record it to prove their evidence is true
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#22 iRON MiCK

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Posted 02 April 2018 - 09:52 PM

This is Francis............

 

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#23 hack2489

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Posted 03 April 2018 - 06:35 AM

Hack posted. "I had one mate who had recorded the whole incident, police took his Mrs word for it, issued AVO and in court the magistrate didn't want to see or hear the evidence. Luckily my mate had a good lawyer, and got it admitted into evidence, an AVO dropped."
In Qld and I believe NSW is similar. A recording made without the express consent of the people being recorded is not admissible as evidence in court.


Actually, at the time it was legal to record a conversation and use it in evidence in Qld.

Edited by hack2489, 03 April 2018 - 06:53 AM.


#24 hack2489

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Posted 03 April 2018 - 06:50 AM

...

Surveillance Devices Act 2007 ...

... there is one main exception to when a recording of a private conversation can be used, without the consent of all parties to the conversation.

The SDA allows for a ‘private conversation’ to be used in circumstances where a principal party to the conversation (being a person by whom words are spoken, and can be the person using the recording device) consents to the recording, and where ‘it is reasonably necessary for the protection of the lawful interest of that party.’

...

Yep. As I understand the law anyone can record a conversation and make it useable for evidence simply by saying as you walk to the meeting 'I am xxx going to a meeting with xxx, yyy, zzz etc. and am recording the conversation for future reference should I need it' then leave the recording continue ...

This, does not apply for phone conversations, which require the express consent of the other party.

Edited by hack2489, 03 April 2018 - 06:52 AM.


#25 hack2489

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Posted 03 April 2018 - 06:59 AM

...

As far as the Magistrate not wanting to or refusing to hear the evidence. Very strange as Magistrates are compelled to hear any form of evidence is available and able to be presented.


Any form of evidence?

I think it is only the evidence that complies with the evidence rules applicable to the matter.

But, yes, in the matter I referenced, it was lawful evidence but the Magistrate didn't want to know about it until my mates lawyer argued the point. If my mate had represented himself, or got some court appointed legal aide lawyer, the outcome could have been very ugly.

#26 goomboogo

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Posted 03 April 2018 - 07:25 AM

Yeah since changes to the Listening Device Act in 2008 or 9 I think, yeah it is illegal and certainly inadmissible in evidence.  Which actually means nothing given the recent debacle with the Stefanovic brothers and the Uber driver.  Totally illegal, yet he gets to sell the stuff and it gets air time.  Go figure.

In the Stefanovic case there was no recording of the conversation. They simply jumped to that conclusion. The magazine simply took the Uber driver's word that the conversation took place.






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