Can Secret Recordings Be Used As Evidence In Domestic Violence And Sexual Assault Cases?

Whether by using your phone, creating a voice memo, or extracting footage from a home surveillance system, it has never been easier to record someone. As such, the rapid increase in recordings proposed as evidence has posed serious questions for criminal courts to grapple with – especially where the recording is secret. This is often referred to as secret or ‘covert recording’ and is generally unlawful.

On the one hand, more comprehensive evidence seems to obviously act in the interests of justice and accurate fact-finding, but on the other hand, these covert recordings might compromise a person’s personal right to privacy.

These considerations only become more complex where the alleged offending directly concern the complainants own personal rights, such as in sexual assault and domestic violence cases.

This issue recently came before Australia’s highest court in the matter of Potter (A Pseudonym) v The King [2026] HCA 25. Crucially, the bench unanimously found that a covert recording of the accused admitting to sexually assaulting the complainant was not unlawful and could be tendered as evidence.

This judgment is a milestone decision for sexual assault and evidence law and will almost certainly implicate future prosecutions.

What Happened in Potter

The matter before the courts concerned a wife alleging that her husband had raped her on two occasions while she was asleep. In December 2019, she used her mobile phone to secretly record a conversation in which she confronted him about the sexual assaults, and where he admitted to the first occasion.

Importantly, she had no intention at the time of going to police. Her evidence was that she made the recording to convince herself never to go back to him – it served as a reminder of sorts.

He was later charged in South Australia, where a jury found him guilty of two counts of rape and could not reach verdicts on two further counts. As a result, he was sentenced to 9 years and 6 months in prison. Unsurprisingly, the recording was central to finding this verdict, but its admissibility was highly contested.

Was the Covert Recording Lawful?

Every state and territory regulates the covert recording of private conversations, and the rules are not uniform.

In South Australia, section 4 of the Surveillance Devices Act 2016 (SA) makes it an offence to use a listening device to record a private conversation. Section 4(2)(a)(ii) carves out an exception where the person is a party to the conversation, and the recording is ‘reasonably necessary for the protection of the lawful interests of that person’. This limb was the crux of the legal issue in Potter.

NSW has an extremely similar structure. Under section 7 of the Surveillance Devices Act 2007 (NSW), knowingly recording a private conversation is an offence carrying up to 5 years imprisonment, even where you are one of the people taking part in it. The main exception, in section 7(3)(b)(i), applies where you are a “principal party” and the recording was reasonably necessary to protect your lawful interests, even if the other person did not consent to the recording.

Queensland, Victoria and the Northern Territory are more permissive, generally allowing a participant to record a conversation they are part of.

The underlying principles behind all these legislations concern the protection of personal privacy and public trust in private communications. That is, people must have confidence that they know when they are being listened to and when they can speak and act freely. Without this principle, the criminal law could perhaps overreach into people’s personal lives and blur the lines between public and private.

What The High Court Decided

A matter goes through many stages before ending up before the High Court of Australia. At the initial trial, the judge admitted the recording.

However, the accused appealed, but the the South Australian Court of Appeal dismissed it since they judged the evidence could be admitted via the judge’s exercise of discretion.

A bench of five in the High Court restored the trial judge’s reasoning. Unanimously, the Court held that “lawful interests” is not confined to just legal rights, titles, duties or liabilities in any narrow technical sense. A person’s bodily autonomy and bodily integrity are also lawful interests: in fact, the Court unequivocally said that the interest in not being raped is one deserving of the very strongest protection.

Just as significantly, the recording did not need to be made for the purpose of gathering evidence. She made it as a reminder to herself; to be replayed so she would not return to the relationship and expose herself to further offending. This judgment therefore softens the strict requirements of the ‘lawful interests’ needed to make covert recording lawful, permitting the protective purpose in this matter.

The court held that if the recording was not lawfully obtained, it would follow that any information or material derived from the use of the listening device could not be admitted into evidence and is not governed by the exercise of the public policy discretion, as opposed to that evidence being necessarily excluded by Surveillance Devices Act.

This landmark decision will likely bring about a major increase in how often audio recordings are used in domestic violence matters. Given the sheer number of people with immediate access to a recording device, prosecutors will now likely be running cases that centre on recordings far more. While covert recordings are by no means completely lawful in every instance, Potter does remove significant obstacles in getting audio admitted as evidence.

While the reasoning of the High Court relates expressly to criminal offences, critics and advocates for domestic violence reform will attempt to press this logic far beyond criminal courts: in ADVO applications, family law matters and coercive control prosecutions. That is, the criminal sphere is not the only area of law which may benefit from less restrictive evidence admission rules.

Though the High Court has stated their position clearly regarding the lawful interests of protecting bodily autonomy and integrity, whether their reasoning extends to non-physical abuse is far less clear. As has been noted by many critics, the most pernicious form of abuse in domestic violence is often not physical: financial abuse, isolation, psychological control, and a host of other coercive measures can be extremely destructive without leaving a visible scar.

So, while bodily integrity was the anchor in Potter, it seems likely incoming litigation will consider how protections from broader forms of domestic violence can be construed as lawful interests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.