• You did not know you had the drugs on you
• Police did not have ‘reasonable suspicion’ to search you (illegal search)
• The drugs were in a shared area e.g. lounge room / kitchen
• Insufficient evidence to prove that you possessed the drugs

What is the process for an AVO?

There will be several court dates.
The first court date (‘mention’), the magistrate will ask you whether you consent to the AVO, or whether you want to defend it.
If you consent, the person seeking the AVO will be asked what conditions they want implemented.
You may consent to the AVO with or without admissions. If you consent to the AVO with admissions, you will be admitting to the conduct that was alleged by the person seeking the AVO.
If you consent to the AVO without admissions, you will allow the court to make the AVO, however you will not be admitting to the conduct alleged by the other person.
If you do not wish to consent to the AVO, you can request a hearing to determine whether the AVO is necessary. The court may make ‘interim orders’ (temporary AVO) until the hearing date.
On the hearing date, the Magistrate will read the statements and each person will give evidence and be cross examined.
If you do not agree with the Magistrates decision the matter can be appealed to the District Court.

What does a prosecution need to prove?
That you:

• Breached a condition or restriction of an AVO
• That you knowingly committed the breach (not accidental)

What are defences?

• You did not know or realise that you were contravening the AVO
• You breached the AVO to comply with a property recovery order or attend a mediation
• You were not served with an AVO, or you were not in court when the AVO was made
• You contravened the AVO to protect your property, yourself or another person (self-defence)
• You had to breach the AVO to prevent serious injury or danger – Necessity
• You were forced into breaching the AVO (where the person who sought the AVO threatens to harm you if you do not agree to see them – Duress)

What happens if you breach?

The penalties that could apply include:

• Section 10 dismissal
• fine
• Conditional release order
• Community correction order
• Intensive Correction order
• Prison

What needs to be proven? 

1. That you broke into and entered private property without the owner’s permission 

 The prosecution will not be able to prove this element where the window or door was already open.  

2. That you committed a serious ‘indictable offence’ 

An indictable offence carries a maximum penalty of at least 5 years imprisonment and includes assault and larceny.  

 What are defences?  

Some defences include: 

• Duress: someone coerced or threatened you into committing the break and enter 
• Necessity: you committed the break and enter to prevent serious injury or death to another person  
• Permission: the owner gave you consent  

What needs to be proven? 

Each of the following elements must be established: 

• You caused another person to fear immediate and unlawful violence, or that you made physical contact with another person, and 
• The person did not consent, and 
• Your actions were intentional or reckless.