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Recordings of private conversations – can they be used as evidence in court?

Eddie Stewart

08 Sep 2020

Topics

  • Personal Injury

The monitoring of conversations is becoming increasingly common with the use of modern technology. However, this technology is advancing rapidly, and this makes it hard for people to stay on top of their rights and the law in this area.


Whether recordings of private conversations may be admitted to a court as evidence in the ACT is a question many people who find themselves involved in accidents, workplace disputes and other legal matters face. Unfortunately, the answer is not always clear, and the rules can be difficult to understand.


Generally, unless you are a party to a private conversation it is unlikely you will be able to use the recording as evidence in court.


What does it mean to be a ‘party to a private conversation’?


The law takes a common sense approach to define this term. Usually if you speak, or are spoken to, in a conversation to which any of the parties don’t want other people listening, you are a party to a private conversation.


Are there any exceptions to this rule?


Yes – the court may consider it appropriate to admit such a recording even if you are not a party. The most common exception is if you reasonably believe it necessary for the protection of your lawful interests.

This exception was first made out in 2018 in Dong v Song. This case involved a dispute regarding a contract for the sale of a business where one party misrepresented the actual purchase price, resulting in substantial overpayment. The Supreme Court admitted into evidence a video recording from a camera hidden in a handbag, which captured certain admissions pertaining to the dispute.


More recently, the Court in SMA v John XXIII College admitted into evidence a recording of a telephone conversation, also under the lawful interests exception.

There are also some other less common exceptions and a recording may be admitted if:
1. Each party to the conversation consents; or
2. The offence in question is a very serious offence; or
3. The court believes it would be appropriate given other particular circumstances.


How can we help?


The rules surrounding admissibility of recordings of private conversations are complex. Relying on the above exceptions to have your evidence admitted is risky and, in some cases, the court may not admit a recording even if you are a party to that conversation.

If you would like help to navigate these rules or any other Personal Injury questions, contact our team on 02 6285 8000 or by email.