Lights, camera, illegal evidence: Should you be recording a private conversation?

We live in a technological era where it has never been easier to make a video or audio recordings of conversations or interactions in real time.  Smart devices allow us to easily record these communications within seconds.  However, often parties are not aware they are being recorded and have not provided consent.

In a family law context, and particularly where children are involved, it is common for parties to reach an impasse by getting caught up in the “he said” and “she said”.  As such, parties may be tempted to record private conversations as a means of protection and preserving evidence where they feel it is the only way prove a fact in issue.  Further, parties have an ongoing duty to provide full and frank disclosure regarding the facts in issue of the matter.

However, it is essential to consider the legal implications surrounding recording private conversations or interactions, as doing so without consent can have serious consequences.  Thus, balancing the instinct to protect with the need to adhere to legal standards is crucial in navigating these sensitive situations.

Surveillance Devices Act 1998 (WA)

In Western Australia, the Surveillance Devices Act 1998 (WA) (SDA) governs the use of both listening and optical devices.

For listening devices, the SDA provides a person is prohibited from using, installing or maintaining listening devices to record, monitor or listen to a private conversation to which that person is not a party, or even to record a private conversation to which that person is a party.¹  The SDA adopts a broad definition of “listening device” to include any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation. ²

For optical devices, the SDA provides a person shall not install, use, or maintain an optical surveillance device to record visually or observe a private activity to which that person is not a party, or to record visually a private activity which that person is a party.³  Again, the SDA has adopted  a broad definition of optical device to include, any instrument, apparatus, equipment, or other device capable of being used to record visually or observe a private activity.⁴

Thus smart phones, smart watches, dash cameras and even nanny cams would fit squarely within this definition.

Importantly, the SDA provides there may be considerable consequences for contravention where a person may be liable for a fine of up to $5,000, imprisonment, or both.

Exceptions to SDA

The SDA provides for a number of exceptions to the recordings of private conversations. Most notably, an exception may apply where the principal party to the private communication consents either expressly or impliedly if it is “reasonably necessary for the protection of the lawful interests of that principal party”.⁵

In relation to a private conversation, “principal party” means a person by or to whom words are spoken in the course of the conversations;⁶  and relation to private activity, a person who takes part in the activity.⁷

Reasonably Necessary to Protect Lawful Interest

1. the word “necessary” connotes appropriate or adapted rather than essential or indispensable;
2. the word “reasonably” imports an objective test – that is, the use of the listening [or optical] device must, objectively, be reasonably appropriate or adapted;
3. the determination of whether something is reasonably necessary involves the exercise of judgemental evaluation;
4. the determination of whether the use of the listening device is reasonably necessary is to be undertaken by reference to the facts and circumstances existing at the time of the recording;
5. the word “protection” in the context of XXX connotes defending, preserving or safeguarding the lawful interests of the principal party in question; and
6. what constitutes a person’s lawful interests must be ascertained from the facts and circumstances of the particular case, but it may be said generally that “lawful” connotes a right or interest which is not contrary to statute or general law.

In parenting matters, this lawful interest should be centred around the paramount consideration of the court – the best interest of the child/ren.

Consent

Further, Justice O’Brien discussed the exception of consent and provided the following:¹⁰

“In my view, consent to a recording may potentially be implied where the evidence establishes that the party whose consent is in question is clearly aware that a recording is being made, and raises no objection.  Even then, that awareness is not of itself enough to imply consent; for example, it might be established that the party in question was not aware of any right to object, or that his or her will was overborne.”

While Justice O’Brien concluded that in light of all the circumstances, the exception could not be made out.  However, this case demonstrates the reasoning considerations that were given weight when reaching the conclusion of admissibility of audio and optical recordings in the Family Court of Western Australia.

It is difficult to say how the Family Court will consider the SDA in terms of audio and visual recording given the wide discretion the Court holds.  Ultimately, the Court must consider whether the probative value of the evidence will outweigh the negative aspect of which the evidence was illegally obtained.¹¹  In any event, the evidence must be relevant to the facts in issue being contested.

Balancing Act

It is undeniable that a recording can be highly persuasive evidence.  Where a party wishes to rely on recording of a private conversation, there is an element of risk involved where the party exposes themselves to potential criminal liability.  There are however a number of defences under the SDA where a person has made a secret recording.

It is not unusual for litigants in the Family Court to adduce evidence of secret recordings.  If those recordings are relevant to the issues in dispute, they will usually be admissible notwithstanding they were obtained possibly in contravention of the SDA.

Although there is always the risk the Court may refer a litigant to the DPP regarding secret recordings, it is rare.  If recordings are obtained for the purpose of trying to protect the interests of a child, or gather evidence in circumstances where it is unlikely a party would have been believed, the risk of the referral may be low however it is still a real risk.

Thus, while the recording of conversations can be tempting, it requires careful consideration to ensure the probative value outweighs the prejudicial effect to the other party.  If it does not, you run the risk of the court not accepting the evidence and therefore exposing yourself to criminal liability.  This is a decision a person will have to consider where there are facts in issues that cannot be proven by any other means and at its core, whether the evidence goes to the best interest of the child.

If you are thinking about secretly recording a party or using a recording that has been incorrectly obtained, we highly recommend that you consult an experienced family lawyer for more information or assistance.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

1. Surveillance Devices Act 1998 (WA) s 5(1) (SDA).
2. SDA s 3.
3. SDA s 6(1).
4. SDA s 3.
5. SDA s 5(3)(d) and s 6(3)(b)(iii).
6. SDA s 3
7. SDA s 3
8. Williams and Oamra [2020] FCWA 62
9. Williams and Oamra [2020] FCWA 62 [34], citing AW v Rayney [2010] WASCA 161 [257]
10. [2020] FCWA 62 [24]
11. R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.