Can Audio Video Recordings be Used in Court proceedings?

16/07/2019

In modern Australia virtually every person uses the internet and has a mobile phone or some other communication device.  In Family Law cases it is common for parents to communicate in relation to parenting matters by telephone conversation.  What is said by one parent to another or to other persons may be very relevant to the Family Law case.  Conversations are evidence that can be used in Court.  Parties to Family Law proceedings may try and use recording of private telephone discussions (that they have recorded) in Court. 

Not all conversations can be used in Court proceedings and the recording of conversations without permission is illegal. 

The Commonwealth of Australia and each state of Australia have enacted legislation which prevents or regulates the recording of private conversations.

It is an offence:

1.        To use a device to overhear, record, monitor or listen to a private conversation. 

2.        To communicate or publish private conversations.

3.        To record a private conversation without the consent of the person being recorded.

A recording made without consent is unlawful and cannot be admitted into evidence unless there an exception in the law.  It will be regarded as unlawful and will not be able to be used.  It is regularly the case in family law proceedings.  The parties to a family law matter will communicate by way of telephone and these discussions may be recorded.

There are exceptions to this rule and it may be that party may seek to tender in evidence a transcript of a telephone discussion (or a secretly recorded face to face discussion) in circumstances where one party to the discussion did not know that the discussion was being recorded and did not consent to the recording. 

The Courts Approach – When will Transcript of a private discussion be Admitted to Evidence?

If a party objects to the recording/transcript coming into evidence the Court will examine the issue and answer the question by deciding:

  • Was the recording of the discussion prohibited by Australian Law?
  • If the discussion and recording of the discussion was prohibited by Australian Law does any exception apply?
  • If no exception is made out and the recording is unlawful, should the Court nonetheless exercise its discretion to admit the transcript having regard to the Evidence Act and the relevant family law principles. 

Section 138 of the Evidence Act (Cth) prohibits the use of evidence that was obtained:

(a)       Improperly or in contravention of Australian Law; or

(b)       In consequence of an impropriety or contravention of Australian Law.

Section 138 of the Evidence Act requires the Court to take into account in determining whether or not to admit evidence which has been obtained in contravention of law in the following circumstances:

  • The prohibitive value of the evidence; and
  • The importance of the evidence in the proceedings; and
  • The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceedings; and
  • The gravity of the impropriety or contravention; and
  • Whether the impropriety or contravention was deliberate or reckless; and
  • Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Particular Rights; and
  • Whether any other proceedings (whether or not in Court) has been or is likely to be taken in relation to the impropriety or contravention; and
  • The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian Law.

What are the Risks of Admitting Transcript Evidence?

Lawyers should advise clients of the unlawfulness and consequences of unlawful recordings and advise against such recordings.

However if a lawyer becomes aware of recordings by their client the lawyer should advise the client:

(a)       That the recording is unlawful.

(b)       The risk of Police prosecution whether recording was unlawful.

(c)       The risk that the evidence will not be admitted.

(d)       The risk that the evidence will not be given any weight.

(e)       The risk that the recording could be found to be domestic violence or stalking.

(f)        The risk that an attempt to see leave to use such evidence will not be allowed and at the very least reflect poorly on the party who made the secret recordings.

If you are proposing to undertake family law proceedings and have recorded conversations between you and your spouse/partner which you believe are favourable to your case, please seek appropriate advice.  Our experienced solicitors including family law solicitors can assist in averting what potentially could put you in a difficult position.  Please contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your matter and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011

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