Mobile phones are a way of life these days. Where would we be without them? We don’t just use them for calls, we use them to record life events. We are so used to grabbing the phone to record something that often people don’t turn their minds to whether or not recording something is in fact legal.
In many matters that come before the courts for criminal proceedings, private sound recordings of a conversation are relied upon as evidence. But are they admissible?
In some instances, these recordings have been obtained in contravention of an Australian law and can be excluded from evidence.
Section 7 of the Surveillance Devices Act 2007 deals with the legality of private recordings in NSW and creates a serious criminal offence of using a ‘listening device’ to record a private conversation to which that person is a party, carrying a penalty of up to 5 years imprisonment and/or a substantial fine.
Section 7 also carves out a defence to recording a conversation without the consent of one of the principal parties. This defence is made out if the person recording the conversation can establish that they did so because it was reasonably necessary for the protection of their lawful interests or that the recording was 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.
Sections 11 and 12 of the Surveillance Devices Act create equally serious criminal offences of communicating, publishing, or possessing a private conversation or record of a private conversation that has come to a person’s knowledge as a direct or indirect result of the use of a listening device in contravention of section 7(1).
The purpose of the legislation is, in part, to protect private citizens from covert recordings and to ensure that citizens are not encouraged to take the law into their own hands.
What is a listening device?
A listening devicemeans any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.
A mobile phone constitutes a listening device.
What is ‘lawful interest’?
The courts have held that “lawful interest” should not be construed so broadly as to frustrate the purpose of the legislation. Where there are other avenues for investigation and lawfully obtaining a confession, for example through a surveillance devices warrant and/ or a pre-text call, the court should be hesitant before permitting admission of the recording.
In determining whether to admit the recording, the question for the Court is often then whether it was reasonably necessary for the person who recorded the conversation to do so to protect their lawful interests.
The test of whether a recording is “reasonably necessary” is an objective one. Sepulveda v R (2006) 167 A Crim R 108 at : “Reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording”.
In Sepulveda, the appellant was convicted of various sexual offences against JD and his brother BD. One ground of appeal was that the trial judge erred in admitting into evidence a conversation between JD and the appellant a secretly recorded on a secret micro cassette recorder. The CCA held that that the trial judge’s ruling that the recording was reasonably necessary to protect JD’s lawful interests was wrong. Relevantly for the purposes of this case, Johnson J held at :
In considering whether it was open to the trial Judge, in the circumstances of the present case, to find that the recording was “reasonably necessary” within the terms of the subsection, it is appropriate to bear in mind that the LD Act itself contains elaborate provisions for investigating police to approach a Judge of the Supreme Court for the issue of a warrant. On the facts as found by his Honour, there was no impediment to JD approaching police with a complaint that the Appellant had sexually assaulted him and his brothers. A consequence of such a complaint may have been an application by police for a warrant under s.16 LD Act. If that had occurred, any conversation recorded pursuant to the warrant would have been lawfully obtained.
In determining whether a recording was made in contravention of an Australian law, the court will consider the circumstances of the recording.  The following considerations may indicate whether recording a private conversation without consent may be “reasonably necessary for the protection of the lawful interests” of the person making the recording:
- Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose. The contentious subject matter of the conversation, or the characteristics of the person being recorded, may indicate that it was necessary to make the recording in order to secure the admission. Recording a conversation for the purpose of extracting money, inducing further improper conduct or to blackmail the recorded party will indicate to the contrary.
- Whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting such an allegation. This is more likely to be the case where the conversation concerns a serious criminal matter or the principal party has a genuine concern for their safety or that of their children.
- Whether there were other practical means of recording the conversation, for example, reporting the matter to police or making a contemporaneous file note.
- Whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral evidence and thus, one person’s word against another. Recordings of conversations ‘just in case’ there is a dispute, or for the sake of making an accurate record of what was said, is not enough.
Admitting or excluding the recording
The onus is on the party seeking to exclude the recording to establish on the balance of probabilities that the recording was obtained in contravention of an Australian law: Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at 621;  NSWCCA 426.
If the Court is satisfied that the Recording was so obtained, on the face of it, the recording is inadmissible and the party seeking to exclude the recording can make an application to the court pursuant to s. 138 of the Evidence Act 1995 to have the recording excluded.
The party seeking to rely on the recording then bears the onus of establishing that the evidence should be admitted.
Dealing with private recordings is a nuanced area of the law. Any argument to either exclude or admit a private recording requires detailed consideration of the circumstances of the recording and a carefully constructed argument. It’s important to have an experienced lawyer in your corner.
We have a wealth of experience in dealing with these types of matters. If you would like further information or wish to speak with one of our lawyers, give our office a call and we will be happy to assist.
Helen Christinson, Partner