Yes, a covert recording can be used as evidence in an Australian court. The High Court confirmed this in Potter (a pseudonym) v The King [2026] HCA 25, handed down on 5 August 2026.
The case involved a wife who secretly recorded her husband admitting to previous sexual assaults. The recording helped convict him, and the High Court agreed it was lawfully made and properly used as evidence.
You can read the full judgment on the High Court of Australia website.
Quick Answer
- A wife secretly recorded her husband's admission to sexual assault, and the recording was allowed as evidence.
- Surveillance law generally bans secret recordings, but there is an exception for protecting your lawful interests.
- The High Court said protecting your safety and bodily autonomy counts as a lawful interest.
- Each state has its own recording laws, so the exact rules can change depending on where you live.
In This Article
Background to the Case
The short answer is: the appellant was convicted using a recording his own wife secretly made of him.
He was tried in the District Court of South Australia on four counts of rape involving his wife. The prosecution alleged that sexual intercourse occurred without her knowledge or consent while she was asleep.
He was convicted on two counts. The jury could not reach a verdict on the other two.
The Recording
Before the fourth count
The complainant secretly recorded a conversation with the appellant on her mobile phone. During that conversation, he admitted to sexually assaulting her before, while she was asleep.
The recording became a key piece of evidence at trial. The trial judge allowed it, finding it was reasonably necessary to protect the complainant's lawful interests, including her interest in protecting herself from further sexual assault.
The Legal Issue
The short answer is: it depends on whether the recording protects your lawful interests.
Under the Surveillance Devices Act 2016 (SA), it is generally a criminal offence to knowingly use a listening device to record a private conversation you are part of, without the other person's knowledge or consent. So on its face, the complainant's secret recording of her husband was unlawful.
However, section 4(2)(a)(ii) of the Act provides an exception. If using the device is reasonably necessary to protect the person's lawful interests, the recording is not an offence.
- A person's "lawful interests" do not have to be a specific legal right or entitlement
- The term can cover broader legitimate interests, assessed in the context of the person's circumstances
- Whether a recording is "reasonably necessary" is judged objectively, but still accounts for what the person was facing at the time
Important: The High Court made clear that "lawful interests" is not limited to a narrow legal entitlement, such as a specific right or claim, and can extend to protecting your personal safety.
How the High Court Approached It
The short answer is: the lower court defined the complainant's interest too narrowly.
The South Australian Court of Appeal majority described her relevant interest as ending or escaping the relationship with the appellant. The High Court found this understated what the recording was actually meant to protect.
The Real Interest
Bodily autonomy and bodily integrity
The High Court held that the true interest at stake was the complainant's bodily autonomy and bodily integrity, her fundamental right to decide what happens to her own body, and to protect herself from sexual assault.
The Court weighed her circumstances at the time of recording: previous sexual assaults while asleep, still living in the same home despite separation, two young children, health issues, and limited support. Together, these created a real and ongoing risk of further assault.
Importantly, the Court rejected the argument that the recording was unnecessary because she could have simply written herself a note or gone to police. An audio recording of the appellant's own admission could be replayed as a far more powerful reminder of the danger than a handwritten note ever could.
Important: The fact the conversation covered events from years earlier did not remove its relevance, because the risk of further offending was ongoing.
The Outcome
The short answer is: the appeal was dismissed, and the recording was ruled lawful.
The High Court held that the complainant's use of her mobile phone to make the covert recording did not breach section 4(1) of the Surveillance Devices Act 2016 (SA), because it fell within the exception in section 4(2)(a)(ii).
The recording was therefore lawfully made and properly admitted as evidence at the appellant's trial. His convictions were not disturbed.
Why this matters: The High Court recognised protecting your bodily autonomy and bodily integrity as a lawful interest of the highest importance when deciding whether a covert recording was reasonably necessary.
What This Means for You
The short answer is: context is everything, and there is no simple yes or no answer.
Elysian Law has previously looked at the legal issues around covert recordings in our article, "Is It Illegal To Record Someone Without Consent?". That article explains the Queensland position, including when a person taking part in a conversation may lawfully record it, and when a covert recording may be relied on as evidence in domestic and family violence proceedings.
The High Court's decision in Potter (a pseudonym) v The King [2026] HCA 25 reinforces those earlier comments. While Potter concerned South Australian legislation, it highlights the broader importance of the circumstances in which a recording was made, the purpose it served, and the legal interests it was meant to protect.
Important: If you are considering recording a conversation, or already have a recording you think may be relevant to your matter, speak with a lawyer before relying on it.
Related Reading
Frequently Asked Questions
If You Need Immediate Help
If you or someone you know is experiencing domestic or family violence, support is available:
- Emergency: Call 000 (triple zero) if you are in immediate danger.
-
1800RESPECT - 24/7 National Domestic, Family and Sexual Violence Counselling Service
Call 1800 737 732 -
DV Connect (Queensland) - 24-hour crisis support for women
Call 1800 811 811 -
Mensline Australia - Support for men
Call 1300 78 99 78
