21
Apr

Can I record a private conversation?

Can I record a private conversation?

A daughter records a conversation with her ailing father about the relationship between the father and his other daughter.

The father does not know that the conversation is being recorded.

Upon the death of the father, there is a dispute between his three children as to how the father intended to distribute his estate.

Admissibility of recording

Is the recording admissible in a court deciding on the dispute?

The NSW Supreme Court considered this scenario in Rathswohl v Court [2020] NSWSC 1490.

In her judgement, Justice Kelly Rees admitted the recording into evidence on the basis that it was reasonably necessary for the protection of the lawful interests of the daughter to make the recording.

Her honour observed that:

Recording these admissions (of the father) was one way of ensuring that Mrs Davies’ (the daughter who made the recording) evidence on this issue was not disbelieved.

A dispute had crystallised into a real and identifiable concern about the imminent potential for significant harm to Mrs Davies’ lawful interests, Justice Rees stated.

When can a recording without consent be lawful?

In New South Wales, section 7 of the Surveillance Devices Act 2007 (NSW)

deals with unauthorised recordings of private conversations.

A breach of the prohibition contained in section 7 carries a maximum penalty of five years imprisonment and/or a fine of $11,000 for an individual.

There are three questions that usually need to be asked when considering whether a person has breached section 7.

  1. Did they record a private conversation to which they were a party (see section 7(1))?

2) If so, was it for the protection of their lawful interests? and

3) Was it reasonably necessary (see section 7(3)(i))?

Family law cases

Here are some examples of how family law courts have dealt with this issue:

Latham v Latham [2008] FamCA 877

A father secretly recorded his wife and children. Abusive comments were made by the wife in the recordings suggesting that she was a child abuser.

Family Court Judge – Mark Le Poer Trench accepted the argument of the father’s family lawyers that the recordings were reasonably necessary to protect the father’s lawful interests. Those interests included the likelihood that the wife would deny the conversations, that the husband needed to protect himself from being accused of fabricating the conversation and to avoid being called a liar.

Groom v Police (2015) 252 ACrimR 332; [2015] SASC 101

While handing over their child to her former partner – Groom, SB recorded the conversation she had with Groom. SB had previously made allegations that Groom had breached an intervention order. Those allegations had been dismissed because of insufficient evidence.

South Australian Supreme Court Judge – Kevin Nicholson, on appeal, upheld the lower court magistrate’s decision that the recording was admissible. His honour stated:

I agree, with respect, with his Honour’s observation that, when considering whether or not a recording of a private conversation has been obtained in pursuit of a person’s lawful interests, each case will need to be considered on its facts. It also makes sense that, in circumstances where a recorded conversation relates to a serious crime, a court will more readily make a finding that the recording was made in the protection of a person’s lawful interests.

Gawley & Bass (2016) 313 FLR 346; (2016) 55 Fam LR 396; [2016] FCCA 1955

A father installed a listening device in the mother’s home over a three-week period.

The father deposed that in the recordings he heard the mother often scream at their children. “I was concerned to protect our children from (the mother’s) violent temper and ill-treatment,” he stated.

His family lawyers  and the Independent Children’s Lawyer

argued that the father’s lawful interests extended to the protection of his children.

Accepting this submission and admitting a transcript of part of the recordings, Federal Circuit Court Judge – Barbara Baker found that the recording was reasonably necessary for the protection of the father’s lawful interests.

Civil cases

Dong v Song [2018] ACTSC 82

Dong and Song bought a restaurant together. Dong secretly recorded conversations she had with Song. She claimed that she did so because she became suspicious when Song would not give her the contract of sale for the business and engaged in other unilateral conduct without consulting Dong.

ACT Supreme Court Associate Justice – Verity Alexandra McWilliam admitted the recording. Her honour concluded:

As at 5 March 2016, the plaintiff had then existing legal rights in relation to the past conduct of the defendants.  She was not in the position of a victim of crime who might invoke the assistance of police.  She was in the position of a person who had an interest in confirming the previous representations that had actually been made to her and in having a reliable record of what the defendants said to corroborate her position, not in the abstract or in the hope that it might be used to her advantage (c.f. Nash at [45], [48]), but in circumstances where the plaintiff now had real doubts about the honesty of the defendants and where legal proceedings were not only in contemplation but imminent, and would turn on oral conversations between those parties.

I was therefore satisfied that the interests the plaintiff sought to protect were ‘lawful interests’ on the authorities above, and that the recording of the conversation was ‘necessary’ in the sense of being appropriate, on objectively reasonable grounds.

Criminal cases

Kadir v The Queen; Grech v The Queen

Kadir was the owner of a property at Londonderry. He lived on the property and also  trained greyhounds there. Grech was a friend of his who attended the property from time to time and assisted him.

In November 2014, an animal rights group – Animals Australia received an anonymous tip-off that greyhounds were being trained with the use of live rabbits and other prey at the property.

Lyn White was the Chief Investigator of Animals Australia at the time. She hired photographer – Sarah Lynch to try to obtain video footage of the live baiting.

On 5 December 2014, Lynch entered the Londonderry property under the cover of darkness and hid a video camera near a “bullring” on the Londonderry property.

Lynch returned to the property the following night to retrieve the recording. She gave the recording to White.

Subsequently, on the instructions of White, Lynch entered the property between December 2014 and January 2015 on 11 occasions -using the same modus operandi to obtain footage.

On 13 January 2015, Lynch – posing as a greyhound owner, met with Kadir and managed to extract some admissions from him.

On 2 February 2015, White provided the RSPCA with copies of the recordings made by Lynch.

On 11 February 2015, the RSPCA executed a search warrant on the property. Several dead and injured rabbits were found during the search.

At some point, someone provided the footage and other information to the Australian Broadcasting Corporation (“the ABC”).

On 16 February 2015, the ABC aired excerpts from the footage on its Four Corners TV Programme, “Making a Killing.”

Objection at trial

On the first day of the trial of Kadir and Grech at Penrith District Court, the criminal lawyers for Kadir and Grech applied for the surveillance device evidence, the search warrant evidence and Kadir’s admissions to be excluded under section 138 of the Evidence Act.

For the Crown, the Director of Public Prosecutions did not in dispute that the surveillance evidence had been illegally obtained. However, his barrister argued that that the court should exercise its discretion under s138 to admit the evidence.

Grech was represented at first instance by Sydney criminal barrister – Amendra Singh instructed by Parramatta criminal solicitor – Avinash Singh.

Trial judge rejects evidence

District Court Judge Mark Buscombe excluded the entire surveillance device evidence, search warrant evidence and “admissions.”

Appeal to the Court of Criminal Appeal

The Director of Public Prosecutions appealed to the NSW Court of Criminal Appeal (“the CCA”).

Court of Criminal Appeal partially overturns trial judge’s ruling

Partially overturning the trial judge’s decision, the CCA ruled

that:

The recording made on 5 December 2014 was admissible, but the rest of the recordings were excluded;

Evidence obtained by the RSPCA through its search warrant was admissible; and

The “admissions” made by Kadir to Lynch were admissible.

Special leave application to High Court

Kadir and Grech sought special leave to appeal to the High Court. The High Court granted special leave.

High Court excludes all surveillance evidence

On 5 February 2020, a five-judge bench of the High Court delivered judgement, ruling that:

  • All the surveillance device evidence should be excluded;
  • The search warrant evidence was admissible; and
  • Kadir’s “admissions” were admissible.

As to the surveillance evidence, the High Court gave particular consideration to section 138(3)(e) and 138(3) (h) of the Evidence Act. Their honours observed:

The significance of factor (h) to the balancing of the competing public interests under s 138(1) will vary depending upon the circumstances. In a case in which action is taken in circumstances of urgency in order to preserve evidence from loss or destruction, it is possible that factor (h) would weigh in favour of admission, notwithstanding that the action involved deliberate impropriety or illegality. Putting such a case to one side, where the impropriety or illegality involved in obtaining the evidence is deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission. By contrast, where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration. The assumption on which the parties and the Courts below proceeded, that proof that it would have been difficult to lawfully obtain the surveillance evidence was a factor which weighed in favour of admitting evidence obtained in deliberate defiance of the law, inverts the policy of the exclusion for which s 138 provides.

Telecommunications (Interception and Access) Act 1979

Practitioners advising clients on eavesdropping should also be familiar with section 7 of the Telecommunications (Interception and Access) Act 1979.

This provision makes it unlawful for any person to intercept a communication passing over a telecommunications system or to do anything to bring about the intercept.

Privilege against self-incrimination

Another important provision that is triggered in secretly recorded evidence cases is section 128 of the Evidence Act.

This section empowers courts to give a certificate to a person whose evidence may tend to prove that they have committed a criminal offence or are liable to civil penalty.  Upon a certificate being granted, that evidence cannot be used against them in any criminal proceedings.

Where a client deposes about conduct that may possibly be illegal in a document (such as an affidavit), they should also claim privilege in respect of self-incrimination.

Conclusion

While the courts have admitted secretly recorded conversations in many cases, lawyers are duty-bound to warn clients who are contemplating such conduct that this conduct is unlawful.

In a family law case, if a client has already made secret recordings, then that evidence must be disclosed to the other parties in compliance with the client’s disclosure obligations.

Each case on illegally recorded evidence turns on its own facts.

It is vital that clients are given proper advice about illegally or improperly obtained evidence by a competent family, criminal or litigation lawyer (as the case may be) early in the piece. This will afford them a substantial forensic advantage. On the other hand, not receiving such advice at the right time can be fatal to a party’s prospects of success.