Recording a private conversation for evidence can be risky

A recent case in the Federal Circuit Court of Australia, Jasper and Corrigan (no.2) [2017] FCCA1467, was disputing the nature of a de facto relationship. The applicant, a 33-year-old woman, at the very last minute, presented evidence in the form of private recordings between herself and the respondent, a 77-year-old man. The Court had to decide whether the recordings that the applicant had secretly obtained could be admissible in Court.

Between them, the couple had a three-year-old daughter. The applicant claimed that they were in a de facto relationship, while the respondent stated that there was only a sexual relationship between the parties for a period of 15 months, which in his view did not amount to a de facto relationship.

The Court examined the Surveillance Devices Act 2007, and particularly section 7, which says that “a person must not knowingly install, use or cause to be used or maintain a listening device … to record a private conversation to which a person is a party.” Further, the Court considered how such prohibition would not apply to the use of a listening device by a party to a private conversation if the recording was reasonably necessary for the protection of the lawful interests of that party.

The Court found that there is real difficulty in cases such as this to determine the truth, as the evidence tends to be one party’s word against the other, with no witnesses at the events which tend to take place behind closed doors.

The Court was satisfied that the applicant had a lawful interest to protect by obtaining the secret recordings and that she had no other reasonable options available to her, so the Court allowed the recordings to be heard as evidence.

We advise, however, that the Applicant was warned that although the recordings were allowed into evidence, there was no ruling about the weight that the Court would give the recordings at the final Hearing.

The advice of an experienced lawyer should be sought prior to any decision to record a private conversation for legal reasons.

It is important to remember that each case will depend upon its own facts, and you should always seek legal advice before considering recording a conversation that you intend to use as evidence to support your case.

Please contact the Family Law specialists at Streeterlaw for further information or to discuss your personal circumstances and how we can help you. Call 8197 0105 or email advice@streeterlaw.com.au.