With the availability of recording devices, it can be tempting to secretly record another person for evidence. However, in general, the rules of evidence do not allow secretly recorded files to be admitted into evidence, on the basis that the evidence was illegally or improperly obtained. Link to our previous article on Recording conversation without consent can be accessed from our website.
However, evidence of secretly recorded files, may be admitted where the recording was necessary for the protection of the recording persons lawful interest within the meaning of section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW).
There have been a number of cases in different areas of the law which have looked at whether recording a private conversation without consent may be “reasonably necessary for the protection of the lawful interests” of the person making the recording. From these cases, the following can be seen as deciding factors:
- Whether the purpose of the recording was for a legitimate purpose. That is, the recording was made to protect one’s self from being labelled a liar, such as in the case of R v Le (2004) where recordings where made to refute “he said/she said” claims. Or in the case of DW v R (2014), where the recording was made to protect a minor from continuing abuse and exploitation. Alternatively, recordings which are made for the purpose of blackmail are not legitimate purposes.
- Whether the recording was the only practical way of protecting ones self or another or refuting allegations.
- Whether there was any other practical means of recording the conversation, such as, reporting the matter to the police.
- Whether there was a serious dispute between the parties, especially where the determination of the dispute would depend on oral evidence. Recordings of ‘just in case’ are not enough.
The recent case of Rathswohl v Court  NSWSC1490 (Rathswohl)can be broken down to see how the court applies the above in determining whether a secret recording was made was reasonably necessary for the protection of the lawful interests of the person making the recording.
Rathswohl was a Succession matter involving the three children of the Late Father. In this case, there were arguments between the children, Mr Rathswohl, Mrs Davies and Ms Court, about the care of the father and the Will he left. As a result of the arguments between siblings, Mrs Davies recorded her father and questioned him in particularly about Ms Courts involvement in his care and her living at the fathers home.
- Whether the purpose of the recording was for a legitimate purpose.
It was found that Mrs Davies had lawful interests firstly in ensuring that Ms Court was not increasing her claim on the Testators Estate on a false basis and seconding in ensuring her father was actually being looked after. In this case, the recording was not for illegitimate purpose, such as for blackmail or to try and increase Mrs Davies own share in the estate. It was to ensure that Mrs Davies was believed about what she believed was the correct contents of the Will and Ms Courts involvement in the care of the Father.
- Whether the recording was the only practical way of protecting ones self or refuting allegations. And Whether there was any other practical means of recording the conversation.
Considering no offense had been committed, there was no way for Mrs Davies to seek aid of the Police to record the conversation for her. Nor was there available to her, an alternative way to ensure that she was believed as only the Father would be able to definitively say the extend Ms Court assisted him and shed light on the reasoning for making a new and entirely different Will shortly before his passing.
- Whether there was a serious dispute between the parties.
In this case, there was already significant arguments afoot between the parties, as there was speculation that Ms Court was responsible for her fathers Will going missing and subsequently being replaced by a Will that favoured her. As well as disputes involving each children’s involvement in the care of the Late Father. Therefore, the recording was to be used as evidence of a current dispute and not ‘just in case’ a dispute arose later on.
All in all, although the Court did not find it tasteful to have recorded the Father without his knowledge and noted that sometimes parents will lie to their children to make them happy, in this case, the evidence was admissible as it satisfied section 7(3)(b)(i) of the Surveillance Act.
The above information is intended as general information and is not intended to be relied on as legal advice.
Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales. If your matter is at Blacktown Local Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.