CAN SECRET RECORDINGS BE USED AS EVIDENCE IN DOMESTIC VIOLENCE AND SEXUAL ASSAULT CASES?
The permissibility of secret recordings, also known as covert recordings, and their use in court proceedings is a topic that often arises in increased prevalence, due to technological advancements, increased reliance and the greater ease by which one can secretly and covertly record.
This article will explore potential criminal repercussions of secretly and covertly recording someone without their knowledge and the permissibility and non-permissibility of such recordings in court proceedings.
If you or anyone you know have been accused or charged with the criminal offence of the installation, use and maintenance of listening devices, contact our award-winning team of specialised criminal lawyers at Criminal Lawyers Group immediately for a free consultation.
WHAT IS THE CRIMINAL OFFENCE OF ILLEGALLY INSTALLING, USING AND MAINTAINING A LISTENING DEVICE?
Section 7 of the Surveillance Devices Act 2007 (NSW) constitutes it a criminal offence for a person to knowingly install, use or cause to be used or maintain a listening device:
- To overhear, record, monitor or listen to a private conversation to which the person is not a party, or
- To record a private conversation to which the person is a party.
There are certain exceptions to the above prohibitions. The prohibition on recording a private conversation to which the person is a party does not apply if:
- All of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
- A principal party to the conversation consents to the listening device being so used and the recording of the conversation:
- Is reasonably necessary for the protection of the lawful interests of that principal party, or
- Is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
WHAT IS THE PENALTY FOR THE CRIMINAL OFFENCE OF ILLEGALLY INSTALLING, USING AND MAINTAINING A LISTENING DEVICE?
A person convicted of the criminal offence of illegally installing, using and maintaining a listening device is liable to a maximum penalty of 5 years imprisonment and/or a fine of up to $11,000.
Other penalties available for a conviction of the criminal offence of illegally installing, using and maintaining a listening device include an Intensive Correction Order (ICO), Community Correction Order (CCO), Conditional Release Order (CRO) and a Fine.
CAN SECRET RECORDINGS BE USED IN COURT PROCEEDINGS IN NSW?
Section 138 of the Evidence Act 1995 (NSW) deems evidence inadmissible if it was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
As such, illegally obtained illegal and covert recordings are inadmissible unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
However, the fact that a recording was covert or secret does not in itself make it illegally obtained, such as through Section 7 of the Surveillance Devices Act 2007 (NSW), where certain exemptions to the restriction on secret and covert recordings apply.
POTTER (A PSEUDONYM) V THE KING [2026] HCA 25
The High Court case of Potter (A Pseudonym) v The King [2026] HCA 25 found that a secret recording in which an accused admitted to sexually assaulting his wife was not unlawful and could be tendered as evidence.
The legality of the recording was ruled to have existed by virtue of the wife’s “lawful interests” being interpreted as including her bodily autonomy and bodily integrity.
Whilst the case arose in South Australia and the legislation in question was South Australian and is therefore not binding in the construction of the Surveillance Devices Act 2007 (NSW), the High Court’s interpretation of “lawful interests” is significant in NSW, as the South Australian and NSW legislation both refer to “lawful interests” in determining the legality of a recording.
CAN I GET BAIL FOR A CHARGE OF ILLEGALLY INSTALLING, USING AND MAINTAINING A LISTENING DEVICE?
Yes, you may be granted bail whilst your installation, use and maintenance of a listening device criminal matter is in progress. Our expert bail lawyers at Criminal Lawyers Group were awarded the best law firm in Australia for securing bail for our clients who have been charged with serious criminal offences, including the criminal offence of the installation, use and maintenance of a listening device.
CONTACT CRIMINAL LAWYERS GROUP NOW
If you or anyone you know have been accused or charged with the criminal offence of the installation, use and maintenance of a listening device, contact our expert criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may secure the best outcome for you.
Our award-winning team of criminal law experts are nationally recognised for securing not guilty verdicts, bail and the withdrawal of charges for our clients across NSW who have been charged with the criminal offence of the installation, use and maintenance of listening devices.