Recording a conversation without telling the other person is something many people consider when dealing with domestic and family violence. It can feel like the only way to prove what is really happening. But is it legal in Queensland? And can a court actually use that recording?
This article explains the rules around covert recordings in Queensland, when those recordings can be used in domestic violence protection order proceedings, and what a recent Queensland District Court case tells us about how courts treat this kind of evidence.
Is It Legal to Record Someone Without Their Knowledge in Queensland?
The short answer is: it depends on whether you are part of the conversation.
Under the Invasion of Privacy Act 1971 (Qld), it is a criminal offence to record a private conversation that you are not directly involved in. So if you secretly record a conversation between two other people - without being part of it - that is illegal.
However, if you are directly involved in the conversation - even if the other person does not know you are recording - it is generally not an offence to make that recording. This covers common situations in domestic violence cases, such as:
- Recording a phone call you are having with a former partner
- Recording a verbal confrontation during a child changeover
- Recording abusive behaviour directed at you in person
What About Covert Photos and Videos in Queensland?
The rules around photos and video are different from audio recordings, and the penalties can be serious.
In Queensland, it is a criminal offence to take or share photos or videos of a person without their consent if the images involve:
- A person in a private place (such as inside their home)
- A person doing something they would reasonably expect privacy for - such as using the toilet, being intimate, or getting changed
- A person's genital area, even if covered by clothing
Sharing these kinds of images - including uploading them online — is also an offence.
However, it is not illegal to photograph or film someone in a place where they would not reasonably expect privacy, such as:
- A public park
- During a child changeover in a public place
- Someone exercising in a public area
How Can a Recording Be Used as Evidence in a Queensland Protection Order Application?
A covert recording can be powerful evidence in a domestic violence protection order application. Courts can place significant weight on recordings because they offer independent proof of what happened - not just one person's word against another's.
Recordings are commonly used to:
- Show verbal abuse, threats, or controlling behaviour during calls or in person
- Prove that specific incidents of domestic violence occurred
- Support or challenge the credibility of a witness's account
- Demonstrate a pattern of behaviour over time
Can the Other Side Challenge the Recording?
Yes. The court has the discretion to exclude a recording if the opposing party can show it is unreliable or unfairly prejudicial. Common challenges include arguing the recording has been:
| Challenge | What It Means |
|---|---|
| Edited | Parts of the conversation have been cut or altered |
| Taken out of context | The recording does not reflect the full situation |
| Authenticity questioned | There is doubt about who made the recording or when |
Case Study: Covert Audio Recordings Upheld as Evidence in Queensland Domestic Violence Appeal
Case Reference
HEG v Queensland Police Service & UHB [2024] QDC 134
Queensland District Court - Appeal from Emerald Magistrates Court under s 222 of the Justices Act 1886 (Qld) - His Honour Kent KC DCJ - Appeal dismissed. Read the full judgment (PDF) →
Background
This case is one of the clearest examples in recent Queensland case law of how covert audio recordings can be used as evidence in a domestic violence protection order application - and what happens when a respondent tries to have those recordings excluded on appeal.
The parties had been in a relationship for five years and had three biological children together. The Queensland Police Service brought the protection order application on behalf of the aggrieved person (UHB). The matter was heard at the Emerald Magistrates Court, where a final protection order was made. The respondent (HEG) then appealed to the Queensland District Court under section 222 of the Justices Act 1886 (Qld).
What Was Recorded and How
The aggrieved person made her own audio recordings during two separate incidents. She did not tell the respondent she was recording. Both recordings were played to the Magistrate at the original hearing and formed a central part of the evidence.
Incident 1 - 2 March 2023: The recording captured the respondent repeatedly touching the aggrieved person's breasts despite her asking him to stop. The Magistrate found she asked him to stop on at least seven separate occasions during the recording. After this, the respondent accused her of being unfaithful, demanded she unlock her phone, and threw the phone at her, hitting her in the stomach.
Incident 2 - 10 January 2023: The second recording captured the respondent entering the kitchen, becoming abusive about how food was being prepared, claiming flies were present in the food, and throwing food.
The Arguments on Appeal
On appeal, HEG raised two main arguments against the recordings:
- The recordings should not have been accepted - HEG argued the Magistrate was wrong to admit and rely on the covert recordings as evidence
- The demeanour argument - HEG argued that the aggrieved person's calm tone on the recordings was inconsistent with someone who was genuinely in fear, and this undermined her credibility
What the District Court Decided
His Honour Kent KC DCJ dismissed both arguments and upheld the protection order. The court made three important findings:
- Covert recordings are admissible. A Magistrate is entitled to rely on covert audio recordings made by a party to the conversation to prove allegations of domestic violence. There is no rule preventing this.
- Calm demeanour does not disprove fear. The court rejected the argument that sounding calm on a recording means a person was not in fear. The focus must be on the conduct shown in the recording and the broader context - not on how distressed the victim sounds in the moment.
- Appellate courts respect the Magistrate's credibility findings. The District Court confirmed that higher courts give significant weight to a Magistrate's assessment of witness credibility, because the Magistrate heard the evidence firsthand. An appellate court will rarely interfere with those findings.
The appeal was dismissed in full and the final protection order remained in place.
Why This Case Matters for Recordings in Queensland DV Proceedings
This decision addresses several questions that come up regularly in Queensland domestic violence proceedings involving covert recordings:
| Question | What This Case Confirms |
|---|---|
| Can a Magistrate rely on a covert recording? | Yes. There is no bar to admitting a recording made by a party to the conversation. |
| Does calm demeanour undermine a victim's credibility? | No. Courts focus on the conduct recorded, not the emotional tone of the victim. |
| Can the respondent challenge the recording on appeal? | They can try, but appellate courts will rarely overturn a Magistrate's findings about what the recording shows. |
| Does a recording need to capture a single dramatic incident to be useful? | No. Repeated conduct across multiple recordings - like repeated requests to stop - strengthens evidence of a pattern of behaviour. |
What This Means if You Are Making or Facing a Protection Order Application
How This Case Fits With the Broader Law on Covert Recordings in Queensland
This case applied existing law rather than changing it. The Invasion of Privacy Act 1971 (Qld) permits a person to record a private conversation they are directly involved in. The Domestic and Family Violence Protection Act 2012 (Qld) gives courts wide discretion to receive evidence in protection order proceedings. HEG v QPS confirms that courts will use both frameworks together - meaning a lawfully obtained recording by a party to a conversation can and will be considered as evidence.
Separately, from January 2026, Queensland police can also take a Video Recorded Evidence-in-Chief (VREC) statement from a domestic violence victim-survivor. This is a different process to a party's own private recording, but it reflects the same direction - Queensland law is moving toward greater use of recorded evidence to reduce re-traumatisation and support victim-survivors through the court process.
Source: HEG v Queensland Police Service & UHB [2024] QDC 134 - Supreme Court Library Queensland. Full judgment available via the Queensland Judgments website.
Related Articles
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
