James v James (No. 2) [2020] NSW DC796
Decision 13 November 2020
In a civil action for damages in the tort of trespass the plaintiff sought to include as evidence recordings of conversations between the plaintiff and the defendant on 20 February 2018 at the then matrimonial home. The recordings were clearly of a private conversation and was not made with the defendant’s consent. Judgment against the defendants on liability had already been entered.
Section 7(1) of the Surveillance Devices Act 2007 prohibits the unauthorised recording of conversations unless the exception in subsection 7(3)(b) is triggered. The exception applies when a principal party to the conversation consents to the recording and it is reasonably necessary for the protection of their “lawful interests”.
The plaintiff contended that she was a party to the conversation and consented to the recordings being entered into evidence in order to protect her “lawful interests“. His Honour disagreed. The purpose of the recording was not to protect the plaintiff from apprehended violence but to record verbal abuse so that she could later play back so that the defendant would understand:
- the extent of his abuse;
- the effect it was having on the plaintiff; and,
- so that she could encourage him to consider how he addressed her in the future.
His Honour did not consider the section 7(3)(b)(1) exception could be interpreted that broadly and instead referred to section 138 of the Evidence Act 1995, which prohibits any evidence that was obtained in contravention of Australian law. With regard to s138, the exception is where the desirability of admitting the evidence outweighs the undesirability of admitting it. Section 138(3) provides a list of criteria the Court must take into account when considering whether the desirability of admitting the evidence is outweighed by the undesirability of admitting it.
In the particular case, the unauthorised recordings had been listened to by the plaintiff’s forensic psychiatrist who had described them as “profoundly disturbing“. His Honour considered that to be a relevant consideration in relation to the extent of the damages to be awarded and therefore found it desirable to admit the recordings into evidence.
That said his Honour also noted:
- that the contravention by the plaintiff was not great;
- most people would be aware that mobile phones can be used to record conversations; and,
- the phone used was not hidden and, had he looked at it, the defendant could have seen that the conversation was being recorded .
Comment
It is clear that in some circumstances the court may allow unauthorised recordings of conversations into evidence. However, care should be taken before seeking to rely on this decision to adduce such evidence without the other party’s consent. The background to the case involved domestic abuse and the particular recordings were used by an expert witness to provide opinion evidence that was helpful to the Court. The decision may have been different if:
- liability had not already been decided;
- if the recording had not been used by an expert witness to assist the Court; or,
- the background facts had not involved significant domestic abuse.
The default position remains that any party hoping to rely on a recording of a conversation without the party’s consent will need to satisfy the Court that it falls within one of the exceptions to the general rule.
