High Court admission of secret recording could open doors for victims

Family lawyers say the High Court's decision to consider a South Australian woman's covertly captured recording of her husband admitting to raping her is likely to have an impact in domestic and family law cases beyond SA. In South Australia, it is illegal to secretly record a private conversation unless it can be proved that the recording was made to protect a person's lawful interest — which the High Court ruled included the woman's right not to be raped. What's next? The decision has lowered the bar for secret recordings to be admitted into evidence, but a recording's admissibility remains a matter for the judge presiding over the case. A decision by Australia's highest court to admit a secret recording of a man admitting he had raped his wife while she slept, could open the door to secret recordings by victims of serious crime being more readily considered by courts, family lawyers say. Warning: This story contains content some readers may find distressing. The case centred on a recording made by a South Australian woman in 2017, in which she covertly captured her husband confessing he had sexually assaulted her while she slept. The husband was charged with four counts of rape and convicted on two counts — one while the couple was together, and one after they had separated but were still living together. In South Australia, it is illegal to secretly record a private conversation unless it can be proven that the recording was made to protect a person's lawful interest. Importantly, the woman gave evidence that she had not made the recording to build a case against her husband, but "so that I could use it to convince myself never to go back to him no matter what happened". Recording made legal by 'her right not to be raped' Whether or not the recording was made to protect the woman's lawful interest was the dilemma the High Court was being asked to consider. "Before this, we had some barriers in terms of what was protecting someone's [lawful] interests," family lawyer Elise Fordham explained. "All five High Court justices found that the wife's lawful interest was actually her bodily autonomy and her integrity, which was her right not to be raped." In its judgment, their Honours described the wife's lawful interest as being "of the highest order" and referenced the value that Australian law gives to bodily integrity. "Rape is a violent affront to that value, and the interest of a person in not being raped is an interest deserving of the very strongest protection in the application of [the surveillance laws in question]," they said. The court said it was "readily understandable" and "reasonably necessary" for the woman to make the recording "as a powerful audio reminder of the peril she faced if she remained in the same home" as her husband. "An audio recording of such stark admissions was a far more powerful reminder than a handwritten note to herself." Ms Fordham said the recording "just had to be appropriate in the circumstances". "The court rejected the husband's arguments that she could have just written a note or gone to the police, because they weren't as powerful and the police response was uncertain and out of her control," she said. Ms Fordham said the decision means the bar has now been lowered to allow those recordings to be admitted into evidence for family law, criminal law, and domestic violence matters. Recording admissibility still up to the judge Family lawyer Hayder Shkara said his firm frequently saw clients with relevant audio recordings. "People are able to use their mobile phones to record others very easily," he said. "And there's always this question as to whether or not that evidence would be admissible — and a lot of it is discretionary, up to the judge." Mr Shkara said the decision is likely to have an impact in domestic and family law cases beyond South Australia. "Domestic violence, of course, it happens behind closed doors, it's something that is always very difficult to get evidence for," he said. "Anything that can assist parties in proving what has happened, I think it's going to assist the courts figure out the truth." But he warned this would not be a "free for all" to admit every covert recording. "There are situations where recordings have been made to goad people into saying certain things, or doing certain things, and the courts are aware of that," Mr Shkara said. "Each case will really be analysed based on what exactly is going on, there is a deep analysis when it comes to admitting this type of evidence in court." [Image text:] GH COURT OF AUSTRALIA