The High Court of Australia ruled that a secret recording was admissible in a rape case
The High Court of Australia has ruled that a secretly recorded audio recording, in which a man confessed to raping his wife while she was asleep, is admissible as evidence. The ruling in the South Australian case could influence the handling of covert recordings in domestic and family violence cases, according to family law attorneys, ABC News Australia reports.
The woman made the recording in 2017, secretly capturing her husband’s confession to sexual assault. The man faced four counts of rape and was found guilty on two counts: one occurred while the couple was still together, and the other after they had separated but were still living in the same house.
In South Australia, secretly recording a private conversation is illegal unless it can be proven that it was done to protect a legitimate interest. The woman stated in court that she recorded the conversation not to build a case against her husband, but to convince herself not to return to him.
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All five High Court justices concluded that the woman’s legitimate interest was her physical integrity and her right not to be raped. The court noted that making the recording was an understandable and reasonably necessary step: it was intended to serve as a powerful audio reminder of the danger the woman might face if she continued to live with her husband.
Family law attorney Alice Fordham stated that the decision lowers the threshold for recognizing covert recordings as admissible evidence in family and criminal cases, as well as in domestic violence proceedings. At the same time, attorney Haider Shkara emphasized that this does not mean that any recording will automatically be admitted: in each case, the court will assess the circumstances surrounding the recording on a case-by-case basis, including any possible attempts to provoke the other party.
