A secret recording can sometimes be used as evidence in a domestic violence case in NSW, even when the other person did not consent. The answer depends on how and why the recording was made, the laws regulating its possession and disclosure, and the rules governing evidence in the particular proceeding.
There are three separate questions:
- was it lawful to make the recording,
- is it lawful to possess or disclose it, and
- is it admissible in court?
A decision to admit evidence does not, by itself, excuse unlawful conduct in obtaining
it.
What the High Court decided in Potter
On 5 August 2026, the High Court unanimously dismissed the appeal in Potter (A Pseudonym) v The King [2026] HCA 25. The complainant had secretly recorded her husband admitting earlier sexual assaults committed while she was asleep. She made the recording as a reminder not to resume the relationship and risk further assault. At
the time, she did not intend to pursue charges.
The Court held that the recording was reasonably necessary to protect her bodily autonomy and integrity under section 4(2)(a)(ii) of the Surveillance Devices Act 2016 (SA). It was lawfully made and properly admitted. An intention to report the conduct to police was not essential.
The Court interpreted reasonably necessary as appropriate rather than essential. The assessment is objective, considers the circumstances when the recording was made, and takes account of the recorder’s circumstances. Their reasons inform the assessment but do not determine it. On these facts, the possibility of approaching
police did not make the recording unnecessary.
How the reasoning applies in NSW ?
Potter concerned South Australian legislation. In our view, its reasoning is highly relevant to NSW’s similarly worded lawful interests exception. The Court also discussed the NSW decision DW v The Queen (2014) 239 A Crim R 192, involving a child’s recording of a sexual abuser.
The assessment identifies the interest requiring protection and asks whether recording was reasonably necessary to protect it in the circumstances. Protecting against serious harm can support the exception. An allegation of domestic violence does not automatically legalize every recording.
When making a recording may be lawful?
Section 7 of the Surveillance Devices Act 2007 (NSW) generally prohibits using a listening device to record a private conversation, including one in which the recorder participates. A mobile phone can be a listening device.
For a participant, section 7(3) provides exceptions where:
i. All principal parties’ consent, expressly or impliedly.
ii. A principal party consents and recording is reasonably necessary to protect that
principal party’s lawful interests.
iii. A principal party consents and the recording is not made for the purpose of communicating or publishing the conversation, or a report of it, to people who are not parties.
The lawful interests exception is section 7(3)(b)(i). The separate private use exception is section 7(3)(b)(ii). A recording intended for police or court use should not be treated as being made solely for private use. Later disclosure requires separate assessment.
These participant exceptions do not, by themselves, authorise leaving a device to capture other people’s private conversations when the recorder is not a party.
When a NSW court can admit the recording
In Potter, the South Australian statutory framework meant that, if the recording had been unlawfully made, there was no discretion to admit it on the basis argued. The High Court upheld admission because the recording was lawful. NSW has a different framework: section 3(2) of its Surveillance Devices Act preserves the operation of
evidence laws.
Under section 138(1) of the Evidence Act 1995 (NSW), improperly or illegally obtained evidence is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way.
The matters the court must consider under section 138(3) include how strongly the evidence helps prove a disputed fact, its importance, the nature of the offence or proceeding, the gravity of the impropriety, whether it was deliberate or reckless, and the difficulty of obtaining the evidence lawfully.
An unlawful recording may therefore sometimes be admitted. The seriousness of alleged domestic violence is relevant, but does not guarantee admission. Once unlawful or improper obtaining is established, the party seeking admission must persuade the court that the statutory balance favours admitting it.
A lawful recording also needs to satisfy the applicable evidence rules. Relevance, hearsay and admissions rules may matter. In a criminal prosecution, section 137 requires exclusion where probative value is outweighed by the danger of unfair prejudice to the accused. Section 90 may also permit exclusion of an admission where
using it would be unfair. Secrecy alone does not make a lawful recording unfair.
The court must also have an adequate basis to identify the speakers and understand the recording’s context. Disputes about authenticity, missing passages, editing or an inaccurate transcript can affect admissibility or the weight given to it.
Possession and disclosure raise separate questions
NSW separately regulates possession and disclosure of surveillance material. Sections 11 and 12 must be considered where a recording was unlawfully obtained. Permission to make a recording should not be assumed to authorise every later use or publication.
Parliament has also enacted the Surveillance Devices Amendment (Public Interest Exceptions) Act 2026, addressing possession and disclosure of surveillance material.
Its commencement is by proclamation, so the provisions applicable on the relevant dates must be checked. The reforms do not create a general right to make covert recordings or automatically make recordings admissible in court.
Obtain advice promptly about lawful possession, preservation and disclosure before circulating a recording whose legality is disputed.
Preparing a recording for legal assessment
A solicitor needs the circumstances surrounding the recording as well as its contents.
Useful information includes:
I. When and where it was made, who was present, and whether the recorder
participated.
II. The reason for recording and the threats, incidents or risks existing at the time.
III. Whether the recorder intended to share it, and with whom
IV. The complete, unedited files where lawfully retained, any available metadata, and an explanation of any altered copies.
.A transcript can assist but should accurately identify speakers and mark unclear passages. Short extracts may omit context that changes the meaning of an apparent admission.
Domestic violence charges, applications for an Apprehended Domestic Violence Order (ADVO), and federal family law proceedings raise different issues. A recording’s proposed use must be assessed in the particular proceeding.
Do not put yourself at risk or breach an ADVO to obtain evidence. If you are in immediate danger, call 000.
Advice from Pannu Lawyers
At Pannu Lawyers, we can assess how a recording was obtained, whether possession or disclosure raises legal issues, and the arguments for or against its use in court. Early advice helps identify the evidence needed to support a lawful interests argument or an objection to admissibility.
This article provides general information and is not legal advice. The circumstances of each recording and the legislation applicable at the relevant time require individual assessment