Can You Secretly Record Domestic Violence in NSW? The High Court’s Potter Case Explained

Can you secretly record a partner if you are experiencing domestic or family violence?

In NSW, the answer is not a simple yes or no.

A significant case concerning covert recordings and domestic violence has reached the High Court of Australia in Potter (A Pseudonym) v The King. The case raises important questions about when secretly recording a private conversation may be justified to protect a person's lawful interests.

For people experiencing domestic or family violence, the case highlights an important issue: privacy laws do not necessarily prevent a person from making a recording where it is reasonably necessary to protect their safety or other lawful interests.

However, that does not mean there is a general right to secretly record another person.

What happened in Potter?

The case arose from criminal proceedings in South Australia.

The complainant was the appellant's wife. She alleged that her husband had sexually assaulted her while she was asleep. The couple had separated but continued living in the same house.

The wife secretly recorded a conversation with her husband on her phone. The recording contained admissions relevant to the alleged sexual offending.

The legality and admissibility of that covert recording became an important issue in the criminal proceedings.

The South Australian Court of Appeal divided on whether the recording had been lawfully made. Kourakis CJ considered that it was reasonably necessary to protect the complainant's lawful interests, while the majority considered that it had been made contrary to the South Australian surveillance legislation. The recording was nevertheless held to be admissible.

The case subsequently proceeded to the High Court, raising important questions concerning covert recordings and the protection of lawful interests.

What does this mean in NSW?

The Potter proceedings concern South Australian legislation, not NSW legislation.

However, the issues are particularly relevant in NSW because the Surveillance Devices Act 2007 (NSW) contains an exception based on the same important concept — protecting a person's "lawful interests".

Under section 7 of the NSW Act, a person is generally prohibited from using a listening device to record a private conversation, including a private conversation to which they are a party, unless an exception applies.

One exception applies where a principal party consents to the use of the listening device and the recording is reasonably necessary for the protection of the lawful interests of that principal party.

There is also a separate exception where a principal party consents and the recording is not made for the purpose of communicating or publishing the conversation, or a report of it, to people who are not parties to the conversation.

What is a "lawful interest"?

This is where Potter becomes particularly relevant.

The case demonstrates that a person's interests can extend beyond simply collecting evidence for future court proceedings.

In the domestic violence context, a person's lawful interests may potentially include matters such as their personal safety, bodily integrity and protection against further violence or abuse.

Whether the exception applies will, however, depend upon the particular circumstances.

It is not enough to simply say "I wanted evidence, so I recorded them."

The question under the NSW legislation is whether making the recording was reasonably necessary for the protection of the person's lawful interests.

Does domestic violence automatically give you the right to record someone? No.

There is no blanket "domestic violence exception" allowing every conversation with a partner or former partner to be secretly recorded.

Whether a recording is lawful may depend upon matters including:

• whether the conversation was a "private conversation";
• whether the person making the recording was a party to it;
• the reason the recording was made;
• the lawful interest the person was seeking to protect;
• whether making the recording was reasonably necessary to protect that interest;
• the surrounding circumstances, including any history or risk of violence or abuse; and
• what the person intended to do with the recording.

The circumstances of each case matter.

What about recordings of threats, intimidation or coercive behaviour?

This is particularly important in domestic and family violence matters.

Abuse often happens in private. There may be no independent witness to a threat, intimidation, coercive behaviour or an admission made by another person.

A recording may therefore become highly significant evidence.

But a person should not assume that because a recording captures abusive behaviour, it was necessarily lawful to make it.

The purpose of the recording and whether it was reasonably necessary to protect a lawful interest remain important considerations under NSW law.

Can a secret recording be used in Family Law or AVO proceedings? Potentially.

Recordings regularly arise in family law, parenting and Apprehended Domestic Violence Order proceedings.

They may contain evidence of:

• threats or intimidation;
• admissions;
• family violence;
• coercive or controlling behaviour;
• interactions concerning children; or
• conduct inconsistent with another person's evidence.

However, whether it was lawful to make a recording and whether a court will admit the recording into evidence are separate questions.

The Surveillance Devices Act 2007 (NSW) itself expressly preserves a court's discretion to admit or exclude evidence.

Depending on the proceedings, evidentiary principles concerning improperly or unlawfully obtained evidence may also need to be considered.

For this reason, a person who has made a covert recording should obtain legal advice before assuming that it can — or should — be used in court.

Be careful about sharing recordings

Making a recording is only part of the issue.

Communicating, distributing or publishing a recording can raise separate legal considerations. For example, sending a recording to friends, uploading it to social media or otherwise distributing it may have very different consequences from retaining the recording for a legitimate protective or legal purpose.

There may also be additional restrictions where court proceedings are underway.

If a recording concerns domestic violence, parenting proceedings, an AVO or criminal allegations, it is sensible to obtain legal advice before distributing or publishing it.

The takeaway for NSW

The Potter case is an important development in the law surrounding covert recordings, particularly in circumstances involving sexual assault and domestic or family violence.

For NSW residents, the key point is this:

You do not have an unrestricted right to secretly record another person. However, NSW law recognises circumstances in which a party to a private conversation may lawfully make a recording, including where the recording is reasonably necessary to protect that person's lawful interests.

Where domestic or family violence is involved, questions of safety, bodily integrity and protection from further harm may be highly relevant to that assessment.

But every situation is different.

If you are experiencing domestic or family violence, have made a covert recording, or are considering relying upon recordings in family law, parenting, AVO or criminal proceedings, obtain legal advice about your particular circumstances.

Lawgix can assist with domestic and family violence, family law, AVO and criminal law matters across NSW.

This article provides general information only and does not constitute legal advice. Surveillance laws differ between Australian States and Territories. Whether a particular recording is lawful or admissible will depend upon the circumstances of the individual case.