NSW Secret Voice Recording Admissible in Court?

[Nemesis]

I needed to ask my neighbour an important question about some damage to my property so I went to his home to ask him about it.

Given his previous history of severe violence against me, I decided to turn on my phone’s voice memo recorder (as a precaution) as I knocked on his door and, thankfully, it recorded the incident. However, I have somehow been charged with several offences including assault, etc. and have access to his police statement.

The voice recording can completely prove that almost his entire statement is a lie but Legal Aid told me that it’s not admissible.

But friends, etc. who know people who have been in similar situations say they believe that if you use a secret recording as a means of *defending* yourself as opposed to trying to *accuse* someone of something then it should be admissible.

Well, it’s pretty much the *only* defence I have (other than my own testimony) but he has himself and 2 other people who are supposed “witnesses” (who are blood relatives BTW).

So - can anyone tell me if this recording can be used as evidence to clear my name?

Thanks so much.

 

[Adam1user]

I read somewhere that if a person records other person and uses that recording in order to defend the situation in court, then it is a valid recording and the person who recorded will not be in trouble. If a person records that situation and then posts it on the net, then that is considered as a felony and the person who recorded will face court and be charged.

So my understanding is that if it is used to defend yourself and not distributed/posted on social media or other means to that effect, then you are safe.

This is my understanding and I stress that I am not a lawyer, it would be worth while talking to a lawyer in this field before acting based on it. This is the best way to go, I am sure you can find lawyer who will assist or provide a free consultation.

 

[Nemesis]

Thanks Adam for at least giving me a ray of hope.

I had to say I found it ludicrous that the *only* piece of irrefutable evidence in this case is not admissible. Instead, it’s just the malicious lies of a neighbour and his relatives.

I will give up on Legal Aid and see if I can get an actual lawyer to give me a definitive answer.

Much appreciated

 

[DMLegal]

Thanks Adam for at least giving me a ray of hope.

I had to say I found it ludicrous that the *only* piece of irrefutable evidence in this case is not admissible. Instead, it’s just the malicious lies of a neighbour and his relatives.

I will give up on Legal Aid and see if I can get an actual lawyer to give me a definitive answer.

Much appreciated

I believe the law in NSW prohibits the use of recordings only in relation to ‘private conversations’. What is private is debatable, however I would imagine a conversation between you and your neighbour which was outdoors (or at the front door) and had no intention or expectation of privacy would not be considered private. If that was the case it would, as far as I am aware, be admissible. I’m from Western Australia and our evidence law is very different, so I could be mistaken, but thought it might help.

Good luck

 

[Rob Legat - SBPL]

Even if it is admissible, that doesn’t mean it is necessarily useful. Audio recordings should be treated carefully as they can have no context, and you may need to prove it is the other party if they deny that is a recording of them. As to context, what happened before or after the recording - or even during, because it is unseen - may be of relevance to the contents of the recorded part.

 

[Ricardo]

Firstly, under the Evidence Act, even unlawfully obtained evidence is admissible under the evidence act with permission from the court.

In terms of private recordings, in NSW the relevant offence of recording without consent is section 7 of the Surveillance Devices Act (2007).

There is another offence for distribution of an illegally-obtained recording, but distributing it to the police only (or your lawyer) would usually not trigger the distribution offence.

Someone above tried to say that there wouldn't have been a reasonable expectation of privacy if the recording took place outside the house by his front door; that's arguable but probably false.
The test is basically if there's a reasonable basis to believe that someone could overhear your conversation, such as on a train, then you don't have a reasonable expectation of privacy.
However, the case law shows that there was a case where a recording was made in a restaurant, but it was quiet, with no waiters in earshot, so there was a reasonable expectation of privacy, and therefore the recording was not admissable. I strongly disagree with that ruling, and you may be lucky enough to find a judge who sees it your way.
The point here is, that in your neighbour's private home, there was an expectation of privacy, so you could not lawfully record them.
If you were technically outside or in the doorway, the same principles apply: I think it would be difficult to argue that since you were technically in public and somebody could have hypothetically overheard, that somehow there was no expectation of privacy.

One of the exceptions to the recording offence is what's called "reasonable protection of lawful interests". This means you can record someone without consent when they are committing a crime against you.
I have studied the case law on this exception and basically, at the time that you started recording, such a situation had already had to be alive. You can't record somebody in hope that they may start to do something unlawful to you.
Under this exception, you would have to demonstrate that you started recording based on a genuine apprehension for your safety or lawful interests. For example, if somebody starts confessing to crimes against you, you could start recording. If somebody starts threatening your safety, you could start recording.

Having said that, the prosecutors have discretionary factors on whether or not to prosecute. The case law shows people who, like you, started recording when nothing was alive, but happened to capture important evidence, and have often not been prosecuted.
Even if you do get prosecuted, the judge may let you off with a mild sentence that doesn't go on your record.

A couple more tips:
If your recording is important to a case, a judge may be able to give you a "certificate" that basically says they are admitting your unlawfully-obtained evidence without charging you.
Also, generally the judge will want the full recording to be admitted into evidence. You generally cannot edit a snippet of the recording and only send that, because it will probably be challenged by the other side, and the judge will want the whole recording admitted into evidence
Finally, as someone else pointed out, the evidence can be challenged in a number of ways. Generally, if used as exculpatory evidence to prove to the police that you're innocent, then it usually works. However, to prosecute somebody using a recording, they have to prove their case beyond all reasonable doubt, so the standard is higher. The defence would first challenge whether it was lawfully recorded, then if the parties are identifiable, and then if the recording accurately reflects what happens.
Judges only tend to admit covert recordings under the "best evidence" rule: if other evidence will do the job, then they won't admit it. Sometimes, the recording is the 'best evidence'.