High Court rules covert recordings admissible in SA if reasonably necessary to protect lawful interests of bodily autonomy & freedom from sexual assault
Can a victim of domestic or sexual abuse covertly record a partner to protect themselves from future harm, and can that recording be used as evidence in court?
In a significant decision handed down on August 5, 2026, the High Court of Australia in Potter (A Pseudonym) v The King [2026] HCA 25 unanimously dismissed an appeal by a husband convicted of rape, holding that a covert recording made by his wife was lawful and admissible in court. The Court affirmed that recording a private conversation without consent is permissible under surveillance legislation if doing so is reasonably necessary for the protection of a person's lawful interests—including their personal safety, bodily autonomy, and freedom from sexual assault.
Background & Context
The appellant stood trial in the District Court of South Australia on four counts of rape against his wife (the complainant). The prosecution alleged that the husband had repeatedly engaged in sexual intercourse with his wife while she was asleep and unable to consent.
In December 2019, the wife made a secret mobile phone recording of a conversation with her husband. During the conversation, the husband admitted: "I sexually assaulted you."
The wife explained that her purpose in making the covert recording was to serve as a personal reminder never to reconcile or resume an intimate relationship with her husband, thereby protecting herself from being further sexually assaulted.
The Legal Issue
Under South Australia’s Surveillance Devices Act 2016 (SA) (SDA):
Section 4(1) prohibits a person from knowingly using a listening device to record a private conversation to which they are a party.
Section 4(2)(a)(ii) provides an exception if the covert recording is "reasonably necessary for the protection of the lawful interests of that person."
The key legal questions were:
Does protecting oneself from sexual violence or avoiding the resumption of an abusive relationship constitute a "lawful interest"?
Was making the covert recording "reasonably necessary" to protect that interest?
The Judgment
The High Court (Gageler CJ, Gordon, Steward, Jagot, and Beech-Jones JJ) unanimously held that the covert recording met the statutory exception and was lawful:
"Lawful Interests”: Lawful interests are not restricted merely to protecting legal rights, financial interests, or defending against legal claims. They encompass fundamental personal interests, including physical integrity, bodily autonomy, and freedom from criminal acts such as rape.
"Reasonably Necessary" Standard: To satisfy the exception, the act of recording does not need to be the only available option, but rather standardly appropriate and reasonable under all the circumstances to protect that interest.
Application to the Facts: The trial judge was correct in concluding that the wife’s covert recording was reasonably necessary to protect her interest in avoiding further sexual assault by preventing her from returning to an abusive relationship.
Admissibility of Evidence: Because the recording satisfied s 4(2)(a)(ii), it did not breach the prohibition in s 4(1) and was fully admissible at trial under s 9(1)(d) for criminal proceedings.
Future Application
This judgment provides important legal clarity regarding surveillance device laws and victims of domestic abuse:
Validation of Victims' Safety Strategies: The Court acknowledged the realistic dynamics of coercive control and domestic violence, recognising that victims often need self-protective mechanisms when navigating separation.
Framework for "Lawful Interests": The decision refines how courts evaluate exceptions to surveillance prohibitions, reinforcing that personal safety and bodily autonomy are legally protected interests.
This OYBlog post was created with AI assistance based on source analysis of the High Court of Australia’s judgment in Potter (A Pseudonym) v The King [2026] HCA 25 and the Surveillance Devices Act 2016 (SA). This post is provided for informational and commentary purposes only and does not constitute formal legal advice.