28 June 2018

Go Go Gadget listening device: admissible evidence or not?

| BAL Lawyers
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Evidence Act

Incriminating video recording calls into question what is admissible under the Evidence Act in recent ACT Supreme Court case.

“It’s not what you know, it’s what you can prove in Court” – Jamie Foxx, Law Abiding Citizen (2009).

When pursuing justice, many people do not consider that some of the evidence they know and hold to be true may not be admissible in legal proceedings. This distinction is not academic, as any argument in Court is only as strong as that which can be proven, which requires one’s evidence to actually be considered, at all, by the Court. Relevantly, section 81 of the Evidence Act provides that one party’s admission is admissible in civil proceedings, but what if that admission is obtained without the knowledge of the confessor? A recent case before the ACT Supreme Court dealt with this very question.

Facts and Legislation

The plaintiff and the defendant were partners in a business venture and sale that went south. During their dealings, the aggrieved plaintiff used her mobile phone to secretly record a key discussion between herself and the defendant. In doing so, the defendant did not know he was being recorded when he made some key admissions, which the plaintiff sought to adduce in evidence in subsequent legal proceedings between the two.

Unsurprisingly, the defendant opposed the use of the recording pursuant to the Listening Devices Act 1992 (ACT), which regulates how listening devices are to be used. Pursuant to that Act, it is an offence to use a listening device with the intention of:

  • Listening to or recording a private conversation to which the person is not a party; or
  • Recording a private conversation to which the person is a party.

Thankfully for the plaintiff though, exceptions do apply. Specifically, a secret recording may be admissible where:

  1. Each principal party to the conversation consents to the use of the listening device; or
  2. A principal party consents and:
    1. The recording of the conversation is considered by that person, on reasonable grounds, to be necessary for the protection of their lawful interests; or
    2. The recording is not made for the purpose of publishing the conversation to any person not a party to the conversation.

What the Court decided

The plaintiff argued that her secret recording was necessary to protect her lawful interests. The Court accepted that the desire of a witness to protect their credibility generally, and to protect against exposure to being charged with making false allegations, were lawful interests.

Here, the plaintiff felt cheated in her business dealings with the defendant and, when the recording was made, the Court accepted that legal proceedings were in her contemplation. The Court thus accepted that a serious dispute was on foot which sufficiently gave rise to a lawful interest that required protection. Accordingly, the recording was not made in contravention of the Act and the recording was admissible.

Points to remember

The Court made it clear that each case turns on its own facts. Accordingly, be wary of recording private conversations, unless the other parties clearly consent to the recording. Video or sound recordings can be incredibly useful in protecting your interests, provided that they are lawfully obtained and admissible in evidence.

If you are unsure of your rights, please contact Ian Meagher, Director of Litigation and Dispute Resolution at BAL Lawyers.

This is a sponsored article, though all opinions are the author’s own. For more information on paid content, see our sponsored content policy.

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