Covert Recording Evidence in Australia: Potter v The King

In Potter (A Pseudonym) v The King [2026] HCA 25, the High Court unanimously held that a complainant lawfully recorded her husband’s admissions because doing so was necessary to protect her bodily autonomy and integrity from a real risk of further sexual assault. The decision clarifies the meaning of “lawful interests” under South Australian legislation, but it does not create a general rule for covert recording evidence in Australia because surveillance device laws in Australia differ between jurisdictions. 

The unanimous joint reasons were delivered by Gageler CJ, Gordon, Steward, Jagot, and Beech-Jones JJ on 5 August 2026. 

What happened in Potter v The King? 

The appellant stood trial in the District Court of South Australia on four counts of rape. The complainant was his wife, and the prosecution alleged that the conduct occurred while she was asleep. The jury convicted him on counts 2 and 4 but could not reach verdicts on the other counts. 

On 14 December 2019, before count 4, the complainant covertly recorded a conversation in which the appellant admitted sexually assaulting her while she was asleep. At trial, he accepted making the statements but said that he was placating her. 

The complainant said she recorded the admission as a reminder not to resume the relationship, not for police or court use. The trial judge admitted it, finding the recording necessary to protect her from further rape if she resumed the relationship. 

How did the case reach the High Court? 

The Court of Appeal dismissed the appellant’s appeal in Potter v The King [2024] SASCA 108, but divided on the recording. S Doyle and David JJA found the exception unsatisfied, characterising the complainant’s interest as escaping the relationship, yet admitted the recording under the public-policy discretion for unlawfully obtained evidence. Kourakis CJ found it lawfully made to protect her bodily autonomy and integrity. 

In the High Court, both parties accepted that the majority’s alternative route was unavailable. If the recording contravened s 4(1), s 12(1) required its exclusion. The prosecution instead relied on a notice of contention supporting Kourakis CJ’s conclusion that s 4(2)(a)(ii) applied. 

What question did the High Court have to decide? 

The High Court had to decide whether the South Australian Court of Appeal majority erred in holding that the recording was not “reasonably necessary for the protection” of the complainant’s “lawful interests” under s 4(2)(a)(ii) of the Surveillance Devices Act 2016 (SA). 

Section 4(1) prohibits knowingly using a listening device to record a private conversation, including by a party to it. The complainant’s phone met the statutory definition, the exchange was private, and the appellant had not consented. The lawfulness of the recording therefore depended on whether the exception applied. 

Identifying the protected interest was central. The Court of Appeal majority treated it as leaving, or not resuming, the relationship. Kourakis CJ and the trial judge characterised it as protecting the complainant’s bodily autonomy and integrity from a real risk of further sexual assault. 

The answer was decisive. The majority treated the recording as unlawfully obtained but admitted it under the public-policy discretion concerning illegally obtained evidence. In the High Court, both parties accepted that this route was unavailable. If the recording contravened s 4(1), s 12(1) prohibited its use at trial. If the exception applied, the recording was lawful, and its use in the prosecution was permitted under s 9(1)(d). 

The Court was not deciding whether covert recordings are lawful or admissible throughout Australia, nor determining guilt afresh. Its task was to apply the South Australian exception to the complainant’s circumstances when she recorded the conversation. 

What did the High Court decide? 

The High Court unanimously held that the Court of Appeal majority had erred, and that s 4(2)(a)(ii) was satisfied. The complainant’s relevant lawful interest was not merely ending or avoiding the relationship. Properly characterised, it was her bodily autonomy and integrity, including protection against the real risk of further rape or sexual assault if she remained in the home or resumed the relationship. 

Because the exception applied, s 4(1) did not prohibit the recording, and the exclusion required by s 12(1) did not arise. Its use in the prosecution was permitted under s 9(1)(d). 

The Court accepted the basis advanced in the respondent’s notice of contention and dismissed the appeal, leaving the convictions undisturbed. Gageler CJ, Gordon, Steward, Jagot and Beech-Jones JJ delivered joint reasons, with no separate or dissenting judgment. 

Why was the covert recording necessary? 

The Court identified the interest needing protection, determined whether it was lawful, and assessed objectively whether recording was necessary in the circumstances confronting the recorder. 

The prosecution, as the party seeking admission and relying on the statutory exception, bore the onus of proving its factual basis on the balance of probabilities ([27]–[28]). 

Drawing on Violi v Berrivale Orchards Ltd (2000) 99 FCR 580, Sepulveda v The Queen (2006) 167 A Crim R 108 and Thomas v Nash (2010) 107 SASR 309, the Court explained that “lawful interests” extend beyond strict legal rights, titles, duties or liabilities and must be applied case by case. DW v The Queen (2014) 239 A Crim R 192 illustrated that the importance of the interest informs whether recording is necessary. 

The exception was limited. Section 4(2)(a)(ii) operates against a prohibition intended to protect private conversations. A lawful purpose alone was insufficient. The recording had to protect the identified interest from harm, danger, or impairment. 

“Reasonably necessary” did not mean essential or require recording to be the only available course. The assessment was objective, but it had to account for the circumstances facing the complainant. Her reasons informed, but did not determine, whether the test was met. 

The Court rejected the majority’s description of the interest as merely leaving the relationship. The recording reminded the complainant of the risk of further sexual assault if she remained in the home or resumed the relationship. Her bodily autonomy and integrity were fundamental interests deserving the strongest protection: judgment at [55]–[59]. 

The complainant remained in the same house, had significant health issues, cared for two young children, and had limited support. Those circumstances exposed her to a real and continuing risk. Audio of the admissions could be more powerful than a handwritten note, while approaching police was not an equivalent safeguard because the response and timing were outside her control. She did not need to intend using the recording as evidence. 

What does Potter mean for covert recording evidence in Australia? 

The decision provides an authoritative method for analysing the South Australian lawful-interests exception: define the interest accurately, assess its importance and test the recording objectively against the circumstances at the time. It is particularly relevant where covert recordings in family violence matters concern personal safety or serious offending. It does not validate every safety-related recording or make lawful recordings automatically admissible. 

The jurisdictional distinction is critical. Under Victoria’s Surveillance Devices Act 1999 (Vic), s 6(1) prohibits a person from knowingly using a listening device to record a private conversation to which that person is not a party without the parties’ consent. A participant’s recording is therefore treated differently from the South Australian prohibition considered in Potter. 

Victorian s 11 separately restricts communication or publication, subject to exceptions including where this is no more than necessary to protect the communicator’s lawful interests or occurs in legal proceedings. Potter may assist by analogy, but the statutory text, purpose of disclosure and facts remain decisive. The admissibility of covert recordings also depends on evidence and procedure, including relevance, authenticity, and any exclusionary discretion. 

For family law clients, recordings can affect safety planning, parenting disputes, intervention-order proceedings and criminal investigations. Sharing material about children or third parties may create separate risks. Evidentiary issues may also intersect with family violence and property settlement. 

What are the limits of the decision? 

The result depended on the complainant’s vulnerability, the recorded admissions, and the real risk identified on the evidence. The Court did not approve recordings made for leverage, retaliation, general record-keeping, or publication. A legitimate interest is insufficient unless recording protects that interest and is necessary in context. 

The decision also does not mean that a recording made for personal protection will invariably be lawful or automatically admissible. Different provisions may govern making, using, communicating, and publishing a recording, and the applicable legislation differs between jurisdictions. 

The judgment is final. Searches to 28 August 2026 identified no reported decision applying, distinguishing,, or questioning it. Later treatment may further clarify its operation. 

Frequently Asked Questions 

What should a person consider before making or using a covert recording? 

Potter confirms that protecting bodily autonomy and integrity can satisfy a lawful-interests exception even when the recording was not intended for litigation. Even so, covert recording evidence in Australia remains fact-sensitive and jurisdiction-specific. Advice should address both the applicable State law and the proposed use. 

Our family law team advises on evidentiary and strategic issues arising in sensitive family matters. To discuss the circumstances and intended use of a recording, book a consultation. 

This article is general information only and not legal advice. For advice specific to your circumstances, please contact our team.