Evidence: Recording Private Communications and Activities

With smart phones always at arms-reach you may easily be tempted to record private activities or conversations for use as evidence in court proceedings, however, this is rarely a useful evidence-gathering exercise, and may even be damaging for your case or unlawful.

Evidence Act

It seems to be commonly understood and accepted that evidence is not to be admitted where it was obtained improperly or in contravention of an Australian law, unless the desirability of admitting that evidence outweighs the undesirability. In Western Australia, courts rely upon the principles in Bunning v Cross [1978] 141 CLR 5 (which have since been adopted by s 138(3) of the Evidence Act 1995 (Cth)), when considering whether unlawfully obtained evidence should be admitted. These factors include, but are not limited to the following:

• The probative value of the evidence;
• The importance of the evidence in the proceedings;
• The nature of the relevant offence, cause of action or defence, and the subject matter of the proceeding;
• The gravity of the impropriety or contravention of an Australian law in obtaining the evidence;
• Whether the impropriety or contravention was deliberate or reckless; and
• The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Surveillance Devices Act

It is less commonly known, however, that it is a contravention of the Surveillance Devices Act 1998 (WA) (Surveillance Devices Act) to install, use or maintain (or cause to be installed, used or maintained):

• a listening device to record, monitor or listen to a private conversation; or
• an optical surveillance device to record visually or observe a private activity.

Listening and optical surveillance devices respectively include any devices (such as mobile phones) capable of being used to record, monitor or listen to a private conversation, or record visually or observe a private activity. This includes the use of mobile phones to record audio or video footage.

A person will breach the Surveillance Devices Act if they engage in conduct of the nature referred to above, except in certain circumstances such as where:

• each principal party to the private conversation or activity consents expressly or impliedly to the installation, use, or maintenance of a listening or optical surveillance device; or
• a principal party to the private conversation or activity consents expressly or impliedly to the installation, use, or maintenance of a listening or optical surveillance device and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.

An individual who breaches these provision of the Surveillance Devices Act may be liable for a criminal penalty of a $5,000 fine or 12 months imprisonment.

Lavan Comment

Read together, the Evidence Act and the Surveillance Devices Act prohibit the reliance upon video or audio recordings as evidence in court proceedings, except where it can be demonstrated that the recordings were taken in accordance with the Surveillance Devices Act, or the court is able to be persuaded that it should use its discretion to admit the recordings as evidence.

The lawfulness and admissibility of recordings as evidence in proceedings is often the subject of heated contention, and should be carefully considered prior to any attempt to make or rely upon a recording as evidence.  

Further, one should be cautious about the circumstances in which they gather video or audio recordings, and seek to rely upon same in proceedings, as the circumstances and context within which a recording is made can often be as telling as the contents of the recording itself. This is particularly apparent in proceedings where the credibility or character of the person who made the recording is likely to influence any ultimate decision of the decision maker, such as in family law or criminal proceedings.  

If you have any questions arising from this update, or you are involved in proceedings where you or another party is seeking to rely upon video or audio recordings and you need legal advice, please do not hesitate to contact Iain Freeman, Partner in Lavan’s Litigation and Dispute Resolution Team.