Evidence : Recording the conversation with your ex

Therefore  these recordings may be used as evidence in civil court cases (AVO) and criminal investigations (Stalking, Harassment, Intimidation, Assault), and more.

So for clarity, 

  • it depends on where you live, and/or;
  • the circumstances under which the recording is made, and/or;
  • the purpose for the recording.

The law and rules vary as to the legality of recording private conversations, depending on which State or Territory they were made.  

As a rule, if a person is NOT a party to a private conversation, that person is prohibited from secretly recording or using a device to listen to record that conversation.  A private conversation is one where at least one party would not reasonably want or expect to be overheard or observed by anyone aside from those present.  A person is ‘a party’ to a private conversation if words are spoken by them or to them during the conversation.

 

It is legal in all jurisdictions to record a private conversation or telephone call if all parties to the conversation or telephone phone call consent

Implied: I’ll be interviewing you about this topic, it will be recorded on my phone.

This is a statement in which you can object and refuse to be recorded, event there is no question to answer, or by agreeing to the interview it is implied you consent to the recording being made and it being used for any purpose the person who records it has in mind.  

Informed: I would like to record our conversation for ********. It will be used for accuracy of case notes, note taking and statement preparation as well as for quality assurance. It will not be published publicly or shared without your consent and you will be given an opportunity to review the content and a copy of the recording if you request one. 

Ownership of a recording is by the person using the device to record the conversation. 

Most people will change their language, tone and censor themselves if they are forewarned that the conversation is being recorded. 

 

Here’s an outline of what the law says about recording private conversations in Australia.

 

In the Northern Territory and Victoria you can record a private conversation without the consent of all parties if you are a party to the conversation yourself.

Queensland has similar legislation, with the exception that once recorded; you cannot share the recording with anyone who wasn’t a party to the original conversation.

In New South Wales, Tasmania, and the Australian Capital Territory, it is legal to record a private conversation without consent of all parties if you are a party to the conversation and ONLY IF one of the following two conditions is met:

  • It is reasonably believed that recording the conversation protects your lawful interests; or
  • The recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

In South Australia and Western Australia, the Surveillance Devices Act prohibits the installation, use or maintenance of a listening device to record a private. Exceptions apply where:

  • The parties to a conversation consent to the use of a listening device; or
  • The recording is in the public interest; or
  • The conversation was recorded to protect the lawful interests of one party.

 

LAWFUL INTEREST

What constitutes a “lawful interest” or what is “in the public interest” will be determined objectively by considering the context and circumstances of the listening device being used and weighing this against competing interests such as the need to protect personal privacy.

Generally this means that every recording is up for judgement.

Remembering, the courts have previously ruled that it is not considered to be a lawful interest to use a device for the purpose of gaining an advantage in civil proceedings.

for example [Thomas & Anor v Nash [2010] SASC 153].

The court has accepted, however, that the recording of a private conversation was in the person’s lawful interest where the person had a genuine fear for their safety.

See [Groom v Police [2015] SASC 101].

In Groom v Police, a protected person made audio recordings of her former partner who contacted her in a way that was a breach of an intervention order. In this case, the Supreme Court held that the recording could be admitted into evidence as it was both protecting her lawful interest and in the public interest.

Across Australia the publication or communication of any recording of a private conversation is prohibited in all jurisdictions. NSW is the exception, which allows for the publication or communication of private conversations made during legal proceedings.

Recording of telephone conversations is tightly controlled by the Telecommunications (Interceptions and Access) Act 1979.

 

Now at the top of the page we said that it is Ok to record a conversation with your ex but if  a recording of a private conversation has been obtained illegally it cannot be used as evidence. 

What makes it illegally obtained?

The admissibility of evidence of private conversations obtained via listening devices is a complex area of law and there are some exceptions where an illegally obtained recording may still be used in court. 

Induced or entrapment.

As humans we are about survival and during periods of threat, a normal response is to lie, be complicit or placate the source of the threat.  That is why context is so important and the entire circumstance must be considered.   

Courts have the discretion to allow admission of secret recordings into evidence, even if the evidence has been obtained improperly and without the knowledge of the parties and in breach of the applicable State or Territory legislation.

The Risk

In these times of ready access to technology capable of instant and covert recording, the temptation to record interactions between parties can be strong, and risky. 

We have all seen victims who start recording their abusive or violence partner and how the repercussions inflame the situations, but this should not deter you from trying to capture the evidence you need, especially in cases where coercive control is present. 

Often its not necessary what is say, it’s the way it is said, the delivery.  Tone can significantly impact on the perception of the threat so capturing this on audio or video go to supporting the abuse and violence you have been subjected to. 

Passive aggressive tendencies or ‘killing you with kindness’ is described as the abusive vortex of intimate partner violence.  “He’s being nice, he’s joking, kidding just mucking around, why can’t you just see that he is ‘being nice’.  It’s funny, don’t be so sensitive, your’e so serious.’

When a controlling partner looses control or doesn’t get what he wants, a desperation of insecurity can play out as anger with the intention to instil fear. 

Statements such as ‘If you had asked me before Christmas, I would have said that I was leaving. And if I leave I’m not coming back.  It will turn your world upside down. If I move out we’ll sell the house and your world will be turned upside down and you know that.’

This type of threat can disable the sense of safety and security within a relationship. It is abuse.  It is demanding you comply with requests and demands to keep them in your life. 

The security of owning a home should not come at the cost of your freedom.  If the home is not happy or unsafe, it is a house and you will find somewhere else to live, in peace and with happiness. 

Threats of this nature often make the person subjected to the abuse feel unworthy and at the mercy of the abuser.  A threat to psychological safety is abuse and described as coercive control. It is typically used by someone who is attached to the outcome they are seeking, at all costs kind of people, and those that rely on you feeling disestablished so they can benefit and retain the advantage of the situation. 

When you become detached from the outcome you become powerful. 

Therefore on my final note, if you chose to record your conversations with your ex, do so knowing that you are protecting yourself and that is the lawful interest.

 

[1] Surveillance Devices Act 1999 (VIC)Surveillance Devices Act 2007 (NT)

[2] Invasion of Privacy Act 1971 (QLD)

[3] Surveillance Devices Act 2007 (NSW)Listening Devices Act 1991 (TAS)Listening Devices Act 1992 (ACT)

[4] Surveillance Devices Act 1998 (WA)Surveillance Devices Act 2016 (SA)

[5] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2010/153.html?context=1;query=Thomas%20v%20Nash;mask_path=au/cases/sa/SASC

[6] http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2015/101.html

[7] Telecommunications (Interceptions and Access) Act 1979

 

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