Secret Recordings in DV Cases: High Court Confirms a Victim’s Covert Recording Can Be Lawful Where It Protects Bodily Autonomy and Safety

In Potter (A Pseudonym) v The King [2026] HCA 25, the High Court unanimously dismissed an appeal concerning the admissibility of a covert audio recording made by a wife of a private conversation with her husband. In that recording, the husband admitted he had previously sexually assaulted her while she was asleep. The High Court held the recording was not unlawful because it was reasonably necessary for the protection of the complainant’s lawful interests, namely her right to bodily autonomy and integrity. This is a major authority for domestic and family violence contexts because it recognises that a victim-survivor may make a secret recording not merely to gather evidence, but to protect herself from real ongoing risk.

🧩 Facts and Issues

Facts:

The appellant was tried in the District Court of South Australia on four counts of rape. The complainant was his wife. The prosecution alleged that the appellant had sex with her without her knowledge and consent while she was asleep. He was convicted on counts 2 and 4.

Before the conduct alleged in count 4, the complainant secretly recorded a conversation with the appellant on her mobile phone. During that conversation, he admitted to having previously sexually assaulted her while she was asleep, including saying, “I sexually assaulted you” and that he started having sex with her while she was asleep.

The complainant’s evidence was that she made the recording so she could use it to convince herself never to go back to him, no matter what happened or how he tried to convince her. At the time, she said she did not intend to take the matter further.

The trial judge admitted the recording. The South Australian Court of Appeal majority held the recording was not covered by the statutory exception, but nevertheless admitted it under a discretionary approach. The High Court held that was wrong: if the recording was unlawful under the South Australian statute, there was no discretion to admit it. However, the High Court held the recording was lawful because the statutory exception applied.

Issues:

1. Was the covert recording of a private conversation unlawful under the Surveillance Devices Act 2016 (SA)?
2. Was the recording “reasonably necessary” to protect the complainant’s “lawful interests”?
3. What was the lawful interest being protected: simply leaving a relationship, or bodily autonomy and protection from sexual assault?
4. Did it matter that the complainant made the recording as a reminder to herself rather than for police or court proceedings?
5. Could the recording be admitted if the statutory exception was not satisfied?

⚖️ Applicable Law – Legislation, Regulations, Rules

Surveillance Devices Act 2016 (SA)

• s 4(1) — prohibits a person from knowingly using a listening device to record a private conversation to which they are a party, unless an exception applies.
• s 4(2)(a)(ii) — the prohibition does not apply where the person is a party to the private conversation and the use of the listening device is reasonably necessary for the protection of the lawful interests of that person.
• s 9(1)(d) — permits use, communication or publication of material derived from a recording made to protect lawful interests in the course of, or for the purposes of, a relevant action or proceeding.
• s 12(1) — prohibits use, communication or publication of material derived from the use of a surveillance device in contravention of Part 2.

Criminal Law Consolidation Act 1935 (SA)

• s 48(1) — rape offences.

The High Court emphasised that the South Australian scheme is strict: if the recording was not protected by the s 4(2)(a)(ii) exception, it had to be excluded. There was no separate common law discretion to admit it anyway.

📌 Precedents Relied On

• MacPherson v The Queen — prosecution bears the burden of proving the facts necessary to satisfy admissibility where it seeks to rely on the evidence.
• Bunning v Cross — public policy discretion concerning illegally obtained evidence; the High Court confirmed that this discretion did not assist if the South Australian statute required exclusion.
• Violi v Berrivale Orchards Ltd — “lawful interests” is broader than strict legal rights, titles, duties or liabilities, but the recording must still protect the relevant lawful interest.
• Sepulveda v The Queen — “reasonably necessary” does not mean essential; it is enough that the recording is appropriate to protect the lawful interest.
• Thomas v Nash — private conversations are protected even where participants may later tell others about them; privacy and confidentiality are not the same thing.
• DW v The Queen — covert recording by a child sexual abuse victim was reasonably necessary to protect the child from further offending and to support her account.
• Levy v Bablis — recording for tactical pressure or leverage is not necessarily protective of a lawful interest.
• Marion’s Case, YBFZ, and related bodily integrity authorities — bodily autonomy and bodily integrity are fundamental rights deserving strong protection.

🧠 Analysis

Issue

Can a victim-survivor’s secret recording of a private conversation with an alleged perpetrator be lawful and admissible where the recording is made to protect herself from further sexual violence or coercive return to a dangerous relationship?

Rule

Under the South Australian legislation, recording a private conversation is generally prohibited unless an exception applies. One key exception applies where a party to the conversation uses a listening device and that use is reasonably necessary for the protection of their lawful interests.

The High Court clarified several points:

• “Lawful interests” are not limited to strict legal rights, titles, duties or liabilities.
• The interest must be identified accurately.
• The recording must protect that interest, not merely serve curiosity, leverage, revenge or tactical advantage.
• “Reasonably necessary” does not mean essential. It means the recording was appropriate in the circumstances to protect the lawful interest.
• The assessment is objective, but it is made by reference to the circumstances faced by the person making the recording at the time.
• The person’s reasons for recording inform the analysis, but do not finally determine it.

Application

1. The Court rejected a narrow characterisation of the wife’s purpose

The Court of Appeal majority characterised the wife’s purpose as protecting her interest in “escaping from her relationship”. The High Court said that was too narrow.

The real interest was not merely relationship autonomy. The wife was not simply recording to help herself leave a bad relationship. She was recording an admission about sexual assaults committed while she was asleep, in circumstances where she remained vulnerable and exposed to the risk of further rape.

The correct lawful interest was her bodily autonomy and integrity, and her associated personal wellbeing. That mattered because bodily integrity is a fundamental common law interest. Rape was described as a violent affront to that value. The interest in not being raped is an interest deserving of the strongest protection under the statutory test.

2. A recording can be protective even if it is a “reminder to self”

This is one of the most important findings for DV contexts.

The appellant argued that the recording was only a “note to herself” and was not made for police or court proceedings. The High Court rejected that as a reason to deny the exception.

The wife’s evidence was that she made the recording so she could remind herself not to return to the appellant, no matter how he tried to convince her. The Court accepted that, in context, the recording was a powerful audio reminder of the danger she faced if she remained in the same home or resumed the relationship.

For victim-survivors, that is significant. The protective function of a recording is not limited to building a prosecution brief. A recording may protect a person by helping them resist coercion, self-doubt, minimisation, trauma bonding, pressure to reconcile, or the risk of being drawn back into unsafe intimacy.

3. The wife’s vulnerability was central

The Court assessed the recording in light of the wife’s actual circumstances at the time.

Those circumstances included that the appellant had allegedly raped her while she slept on multiple occasions, had apologised but not stopped, and had allegedly raped her again as recently as August 2019. She had significant health issues, two small children, limited support, and was separated from the appellant but still living in the same home.

Those facts made the risk real, not hypothetical. The Court said the circumstances exposed her to the possibility of resuming the relationship or remaining in the same home with him for a sustained period. Both scenarios exposed her to the real risk of being raped again.

That is directly relevant to domestic violence dynamics. Ongoing proximity, dependency, children, poor health, limited support, and pressure to reconcile can make a covert recording protective even where the person is not yet ready or able to go to police.

4. “Reasonably necessary” does not mean there was no other possible option

The appellant argued that the complainant could have written a note to herself or gone to police. The High Court rejected that reasoning.

A handwritten note would not have had the same force as an audio recording of the appellant’s own admissions. The Court recognised that audio evidence can be “peculiarly communicative” and more powerful than a handwritten note.

The fact that she could have gone to police also did not defeat the exception. The police response, investigation pathway and timing were outside her control. The issue was whether recording the conversation was appropriate to protect her lawful interest in the circumstances she faced, not whether it was the only available option.

5. The ongoing risk mattered more than the age of some allegations

The appellant argued the recording concerned events from 2017 and therefore did not address an ongoing threat. The High Court rejected that.

The earlier assaults had to be seen in context. The parties were still living together in December 2019. The wife had alleged further offending in August 2019. The later count occurred in January 2020. The Court held that the fact the conversation concerned earlier events meant nothing in the context of a clear and ongoing risk created by the appellant’s presence in the home.

For DV cases, this is critical. Older incidents may still be relevant where the relationship, proximity, coercive dynamics or risk environment continue. A recording about past violence may be protective if it helps the victim-survivor understand or respond to continuing danger.

6. The Court preserved privacy protection — this is not open slather

The decision does not mean all secret recordings are lawful. The High Court was careful to emphasise that surveillance legislation protects private conversations. A private conversation remains private even if the participants are free to later tell others about it.

The exception is limited. A person must identify a lawful interest, show the recording was for protection of that interest, and show it was reasonably necessary in the sense of appropriate. The Court contrasted protective recordings with cases where recordings were made to trap someone, create leverage, threaten disclosure, or gain tactical advantage.

So the practical principle is not “secret recordings are fine in DV cases”. The principle is narrower: a secret recording may be lawful where, objectively assessed in the circumstances faced by the victim-survivor, it is appropriate to protect a serious lawful interest such as bodily integrity, safety, or protection from further violence.

7. If the statutory exception fails, admissibility may collapse

A major technical point is that the High Court accepted the parties’ common position: under the South Australian scheme, if s 4(2)(a)(ii) was not satisfied, there was no residual discretion to admit the recording. It had to be excluded.

This matters strategically. In South Australia, the admissibility fight may turn heavily on whether the recording was lawfully made under the statutory exception. It is not safe to assume a court can always admit an unlawful recording simply because it is probative or important.

The Court ultimately held the recording was lawful, so it was properly admitted.

Conclusion

The High Court dismissed the appeal.

It held that the complainant’s covert recording did not contravene s 4(1) of the Surveillance Devices Act 2016 (SA) because the exception in s 4(2)(a)(ii) applied. The recording was reasonably necessary to protect her lawful interest in bodily autonomy and integrity.

The evidence of the recorded conversation was therefore properly admitted at trial.

🧠 Take-Home Lesson

This is a powerful authority for victim-survivors and lawyers dealing with covert recordings in domestic and family violence matters.

The High Court recognised that a victim-survivor may make a secret recording for self-protection, not just for litigation. A recording can be protective where it helps the person remember the danger, resist pressure to reconcile, preserve their sense of reality, or protect themselves from further sexual violence.

The strongest point in the case is the Court’s characterisation of the lawful interest. The interest was not simply “leaving the relationship”. It was the complainant’s bodily autonomy and integrity — her fundamental right not to be sexually assaulted.

But this is not a licence to secretly record every difficult conversation. The recording must be connected to protection of a lawful interest, and the circumstances must make the recording appropriate. In DV and sexual violence cases, the factors likely to matter include: ongoing risk, vulnerability, proximity to the alleged perpetrator, coercive pressure, limited support, the seriousness of the threatened harm, and whether the recording captures material directly relevant to safety or protection.

For family law, the case is useful but must be used carefully. It is a High Court criminal appeal interpreting South Australian surveillance legislation. Other States and Territories have different statutes. Still, the reasoning gives strong support for the proposition that covert recordings made by victim-survivors for safety and self-protection should not be dismissed as merely tactical or improper.