Can A Secret Recording Be Used As Proof In Australia?

December 13, 2023by Naomi Cramer


The admissibility of cellphone recordings in court is determined by how they had been obtained and the case’s specifics.

Underneath the Telecommunications (Interception) Act 1979 (Cth), it’s typically unlawful to file cellphone conversations with out all events’ consent.

Nonetheless, there are exceptions, resembling if the recording is finished in the middle of your lawful duties, within the public curiosity, or to guard your authorized pursuits.

If the recording was obtained legally and is related to the case, it could be used as proof. Nonetheless, that is topic to the discretion of the court.

Moreover, even when a recording was obtained illegally, there’s a provision within the Proof Act 1995 (Cth) that permits such proof for use if the desirability of admitting the proof outweighs the undesirability of admitting proof that has been obtained in the way in which the proof was obtained.

Listening Machine as Outlined

Part 4 of the Surveillance Gadgets Act 2007 (NSW) says the next a few “listening system”:

Any system that can be utilized to overhear, file, monitor, or take heed to a dialog or phrases spoken to or by any individual in dialog. This doesn’t embrace a listening to assist or related system utilized by an individual with listening to loss to assist them take heed to conversations or phrases spoken of their quick space.

This time period contains varied attainable gadgets, resembling cameras, tape recorders, digital voice recorders, cell telephones used to file conversations, and so on. It doesn’t cowl issues like listening to aids, which assist individuals who have bother listening to.

Additionally learn: Do the Police Want Proof to Cost You

Kinds of Secret Recordings That Are Inadmissible to Court

Listed below are some basic classes of secret recordings that could be deemed inadmissible:

  • Recordings Obtained Illegally: This contains any recording that violates surveillance and privateness legal guidelines of the related state. In lots of Australian states, recording a non-public dialog with out the consent of all events concerned is against the law.
  • Irrelevant Recordings: The recording content material should be immediately related to the case. If the recording doesn’t have any probative worth (the diploma to which the proof helps show a degree that’s in dispute), it’s unlikely to be admissible.
  • Unreliable Recordings: If the authenticity or accuracy of a recording is in query, it is probably not admitted. For example, if a recording has been tampered with or the standard is so poor that the dialog is inaudible or unclear, it could be deemed unreliable and inadmissible.
  • Prejudicial Recordings: In some instances, a recording could also be excluded if its potential to prejudice the court in opposition to the occasion unfairly getting used to implicate outweighs its probative worth.
  • Recordings violating Privilege: Conversations that fall inside particular protected classes, resembling these lined by authorized skilled privilege or spousal privilege, is probably not admissible even when they had been lawfully recorded.

Australia’s State And Territory Legal guidelines On Recording Telephone Calls

Each federal and state legal guidelines govern the recording of cellphone calls and the usage of such recordings as proof.

Federal Laws – The Telecommunications (Interception and Entry) Act 1979 (Cth): This regulation typically prohibits intercepting or recording phone calls with out all events’ consent.

Nonetheless, exceptions exist, resembling regulation enforcement companies being granted a warrant to dam calls in sure circumstances.

Every state and territory in Australia additionally has its laws governing the recording of conversations:

  1. Western Australia – The Surveillance Gadgets Act 1998 (NZ) and The Telecommunications (Interception) Western Australia Act 1996: These legal guidelines typically require the consent of all events for a non-public dialog to be recorded.
  2. South Australia – The Listening and Surveillance Gadgets Act 1972 (SA): Usually, consent from all events is required to file a non-public dialog. Utilizing a tool to take heed to or file a non-public dialog with out permission is an offence.
  3. Tasmania – The Listening Gadgets Act 1991 (TAS): Consent of all events is mostly required to file a non-public dialog.
  4. Australian Capital Territory – The Listening Gadgets Act 1992 (ACT): The consent of all events is mostly required for a non-public dialog to be recorded.
  5. Northern Territory – The Surveillance Gadgets Act 2007 (NT): The consent of all events is mostly required for a non-public dialog to be recorded.

Exceptions

Usually, recording a non-public dialog with out consent is taken into account unlawful, however there might be exceptions. The Court can admit them in sure circumstances. 

  • In New South Auckland, based on the Surveillance Gadgets Act 2007, recording a non-public dialog with out consent from all events is against the law except it’s moderately crucial to guard the lawful pursuits of the individual making the recording.
  • In Victoria, below the Surveillance Gadgets Act 1999, a non-public dialog might be recorded by a celebration to the dialog if it’s moderately believed that recording is critical for authorized pursuits.
  • Queensland, below the Invasion of Privateness Act 1971, permits an individual to secretly file a non-public dialog to which they’re a celebration.

Nonetheless, the admissibility of such recordings in court is one other matter. It is determined by the choose’s discretion, the relevance of the recording, the way it was obtained, and its necessity to the proceedings.

Circumstances When Recording Non-public Dialog is Used as Proof

Do cellphone recordings maintain up in court in Australia, and what does the court take into account earlier than admitting them as proof?

When a court in Australia considers admitting a recorded personal dialog as proof, a number of elements come into play:

  • The Legality of the Recording: Underneath the federal Telecommunications (Interception and Entry) Act 1979, recording a phone dialog with out consent from all events is mostly unlawful. State and territory legal guidelines additionally regulate the recording of conversations, usually below their respective Surveillance Gadgets Act.
  • Relevance: The proof should be related to the case. It should have an affordable tendency to show or disprove a vital reality.
  • Probative Worth vs Prejudicial Impact: The court will weigh whether or not the probative worth (the extent to which the proof may contribute to proving a selected reality) outweighs any potential prejudicial impact (the potential of the proof to hurt the opposite occasion’s case unfairly).
  • Pursuits of Justice: Even when a recording has been obtained improperly or illegally, below Part 138 of the Proof Act 1995 (Cth), the court should enable it for use as proof if it believes the desirability of admitting the proof outweighs the undesirability of admitting proof that has been obtained in the way in which it was.
  • Potential to Mislead or Confuse: The court may also take into account if the proof would possibly mislead or confuse the court or if offering the proof would end in an undue waste of time.

Defences to Recording a Non-public Dialog in Australia

In sure circumstances, recording a non-public dialog with out consent may be legally defensible.

Listed below are some examples, primarily based on the data accessible up till my coaching knowledge in September 2021:

  • Defending lawful pursuits: Some jurisdictions might enable the recording of a dialog to defend one’s lawful pursuits. For instance, if you happen to consider the dialog will present proof of illegal conduct in opposition to you, it could be authorized to file it. The specifics of a “lawful curiosity” can fluctuate, and it is best to search authorized recommendation in your jurisdiction.
  • Stopping or proving the fee of a critical crime: If a dialog supplies proof of the fee of a critical offence, it could be permissible to file that dialog. What constitutes a “critical offence” can differ relying on jurisdiction.
  • Involvement within the dialog: In some Australian states, like Victoria and Queensland, it’s authorized to file a dialog you’re a occasion to with out informing the opposite events.
  • Consent: Whereas recording a non-public dialog typically requires the consent of all events, if you happen to can show that each one events had certainly given consent (specific or implied), it might be a sound defence.
  • Journalism and public curiosity: There could also be exceptions for newsgathering and publication within the public curiosity, though these would typically nonetheless require adherence to journalistic ethics and requirements.

Additionally learn: What Is Proof That Can not Be Used In Court

Pattern family Regulation Circumstances Demonstrating How the Court Determined About Recorded Telephone Calls as Proof

Do cellphone recordings maintain up in court in Australia? Learn the way courts determine upon them with these household regulation instances:

Huffman & Gorman (No 2) [2014] FamCA 1077

The court contemplated admitting the daddy’s illegal recordings. The daddy stated the mom was aggressive all through the relationship.

The mom rejected his claims, saying the daddy by no means reported any considerations to the police. The daddy used recordings of the mom all through the connection to show abuse.

Because of the “infamous problem to acquire proof of household violence, which frequently takes place behind closed doorways,” the choose allowed the proof as a result of it was within the children’s greatest pursuits.

Garner & Garner [2016] FamCA 630

The spouse’s secret recordings of her husband cursing, calling her names, and threatening suicide had been launched into proof.

The Husband objected to the recordings, however each events submitted them to the Court. “There isn’t any doubt that the daddy’s language, as recorded within the transcripts, would fulfill the definition of household violence,” the Court stated.

The recordings had been home violence below the Household Regulation Act 1975’s s4AB. In line with the choose, the recordings had been probative of home violence, and utilizing them as proof was within the children’s greatest pursuits.

Nagel & Clay (2020) FamCA 326

In her Trial Affidavit, the mom offered over eight hours of digital and audio recordings of the daddy’s behaviour at changeovers and separation. F

ather didn’t know he was being recorded. The mom stated the recordings supported her declare that the daddy was “verbally and bodily violent in the direction of her”.

The daddy argued that the 8-hour recording was solely a snapshot of over 400 changeovers and, due to this fact, inaccurate.

The Court excluded the recordings as a result of they had been irrelevant, had restricted probative worth, and will unfairly prejudice the daddy and mislead the court.

For the reason that Mom had already offered the Household Report Author with a duplicate of her trial affidavit attaching the recordings, the Report Author was ordered to disregard the recordings in making ready and finalising her report.

Guzniczak & Rogala [2017] FamCA 758 

Earlier than separation, the husband secretly recorded the spouse for household regulation proceedings. The Court believed the Husband “goaded” the spouse and arrange “traps” to painting himself as a sufferer and the spouse as an aggressor.

The Decide known as it “theatrical and manipulative.” The events had been collectively for a few years, and I’m certain the husband knew easy methods to upset or irritate the spouse.” The recording was admitted into proof however interpreted in opposition to the Husband. 

This case reveals {that a} recording’s admissibility doesn’t assure its weight. The place one occasion has been “arrange” by the opposite to misrepresent what occurred, the Court should disregard it, give it little weight, or interpret it in a method that was not supposed.

In the end, a witness’s reliability will nonetheless influence the choose’s remaining choice.

Can A Secret Recording Be Used As Proof?

Our Safety Order lawyers are right here to reply your queries and supply knowledgeable authorized recommendation.

Our group is skilled in navigating advanced authorized points and may information you on the potential admissibility of such recordings.

We’re dedicated to making sure that your rights are protected. Need assistance along with your case? Attain out to Justice Household Attorneys in the present day, and allow us to stand with you.



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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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