Secretly recording a conversation can be a serious legal issue in NSW. Whether a recording can be used as evidence depends on how it was made, the circumstances surrounding the recording and the applicable rules governing surveillance devices and evidence.
This issue can arise in a range of criminal matters, including sexual assault, domestic violence, threats, intimidation and assault cases.
A recent High Court decision has highlighted the circumstances in which a person may lawfully make a covert recording to protect their interest.
Is it illegal to secretly record someone in NSW?
It Is an offence to knowingly install, use or cause a listening device to record a private conversation without the required consent. Section 7(1) of the Surveillance Devices Act 2007 gives the offence a maximum penalty of 5 years imprisonment or a fine of $5,500.
However, there are several exceptions, as guided by Section 7(2) of the Surveillance Devices Act 2007.
One important exception applies where a person is a principal party to the conversation, and the recording is reasonably necessary for the protection of that person’s lawful interests. The specific circumstances in which the recording was made are crucial.
A person experiencing threats, abuse or violence may secretly record conversations because they are concerned about their safety or to preserve evidence of what has occurred.
The person’s reasons for making the recording and the circumstances in which it was made may be highly relevant to determining whether a statutory exception applies.
The issue of covert recordings was recently considered by the High Court of Australia in Potter (A Pseudonym) v The King [2026] HCA 25.
The case concerned a woman who secretly recorded a conversation with her husband after alleging that he had sexually assaulted her while she was asleep. During the conversation, the husband had made statements concerning the alleged assault.
The recording was admitted into evidence, and the accused challenged its use. The High Court ultimately dismissed the appeal.
The High Court considered the complainant’s interest in protecting her bodily autonomy and bodily integrity. In the circumstances of the case, those interests could fall within the statutory concept of lawful interests.
The decision is significant because it demonstrates that the circumstances surrounding a covert recording can be critical in determining whether it was lawfully made.
The legality of a recording and its admissibility as evidence are separate questions.
Even if a recording was made unlawfully, it does not necessarily follow that it will be automatically excluded from a criminal proceeding.
A court may have to consider the circumstances in which the evidence was obtained and the applicable rules governing its admission.
What factors does the court consider?
The court may consider issues including:
- Whether the recording was lawfully obtained;
- Whether the recording is authentic;
- Whether it has been edited or altered;
- Whether the conversation has been taken out of context;
- Whether the recording is relevant to an issue in dispute;
- Whether the recording is reliable; and
- Whether admitting the evidence would affect the fairness of the proceedings.
Australian evidence law does not operate on the simple rule that every piece of unlawfully obtained evidence must be automatically excluded.
If you are facing criminal charges involving a covert recording, or a secretly recorded conversation is being relied upon as evidence against you, it is important to obtain legal advice as early as possible.
Australian Criminal Law Group can advise on the admissibility and use of recorded evidence in NSW criminal proceedings, including matters involving domestic violence, sexual assault, threats and other criminal allegations.
At Australian Criminal Law Group, we offer a free first consultation. This is an excellent opportunity to meet one of our experienced and proven criminal lawyers face-to-face, share the details about the case, and ask any questions you or they might have. All first consultations are obligation-free and conducted in the strictest confidence. You can read more about our first free consultation here.
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