I recorded my partner abusing me, can I use it in Court as evidence?

Illegally or Improperly Obtained Evidence

Our lives are dominated by smartphone, everything Snapchatted or Instagrammed. Everything is filmed and recorded, but can it be used as evidence against someone in your family law matter?  In the case of Michaels & Harradine [2018] FamCa657, Judge Gill had to determine this very matter.

The case involved significant family violence by the husband against the wife.  The wife sought to adduce a recording from her mobile phone of the altercation to prove that it had occurred.  The husband, of course, denied that the event had occurred and also objected to the recording being used.

The basis for the husband’s objection is that the recording was in breach of the Surveillance Devices Act 2007 (NSW).  The wife had recorded a “private conversation” which pursuant to the act was illegal.

Section 138 of the Evidence Act 1995 (Cth) provides that:

  1. Evidence that was obtained:
    1. Improperly or in contravention of an Australian law; or
    2. In consequence of an impropriety or of a contravention of an Australian law;

Is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 

Therefore, at face value, the evidence contained in the phone recording is not admissible as it was obtained illegally.  The Surveillance Devices Act provides an exception, which allows people to record private conversation if it is “reasonably necessary for the protection of the lawful interests of a principal party.”  This is the argument which the wife argued – that she was protecting her lawful interests.

Judge Gill in this matter considered the overall nature of Family Violence in conjunction with the need for the wife to protect her lawful interests and noted as follows:

“she has advanced the reason for the material was such that she might have evidence of family violence where the father denies the family violence, noting that family violence occurs largely behind closed doors.  In this instance, what is described occurred effectively behind closed doors. Occurring on a somewhat isolated property.”

Judge Gill’s comments acknowledge that Family Violence is difficult to prove without obtaining evidence through manners such as recording of incidents on mobile phones. Judge Gill ultimately allowed the evidence to be used in the parties parenting dispute.

In the event that Judge Gill had found that the evidence was illegally obtained, His Honour would have been required to determine whether the desirability of the evidence being admitted outweighs the undesirability of the way the evidence was obtained.  Essentially, whether the wrong outweighs the benefit of the evidence being adduced.  Usually, the more serious the case or crime the more likely the evidence is to be allowed.   Each case turns on its own facts and circumstances which can alter the decision a Court will make.  Caroline Counsel Family Lawyers can assist you to navigate the complexities of the rules of evidence and advise you of how best to proceed.

As you may have picked up whilst reading this blog, if the wife in the above matter was found to have breached the Surveillance Devices Act she would have been guilty of an offence and admitted it to a Court full of people.  In the event that illegally obtained evidence is likely to be admitted into evidence you will need advice specific to your circumstances about protection against self-incrimination prior to attending Court.  The Court has the power to issue a certificate under section 128 of the Evidence Act 1995 (Cth) which prevents the evidence provided by you in your family law matter against you in another.

If you would like to know more or are concerned about any evidence which may be relevant to your family law matter, contact Caroline Counsel Family Lawyers to make an appointment to discuss the evidentiary aspects of your matter with one of our lawyers.

By Sarah Damon

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