Criminal Law

Warning: This content discusses domestic violence, child sexual abuse and rape

In many cases, recording a private conversation is unlawful. However, in the landmark August 2026 decision of Potter (A Pseudonym) v The King [2026] HCA 25, the High Court of Australia ruled that in certain circumstances, a recording in the interests of bodily integrity and autonomy can be an exception.

The Potter Case

The matter involved a couple who were married in November 2015 and had two daughters together.

The appellant was tried on four counts of rape. In the evidence, the complainant testified to multiple instances of being assaulted while she was asleep, beginning in early 2017. The complainant awoke during the alleged assaults on multiple occasions and described other instances where she later woke with vaginal pain and bleeding.  In late 2019, the complainant separated from the appellant. However, they continued to live in the same house, sleeping in separate rooms. The fourth count occurred in January 2020.

In late 2019, the complainant covertly recorded a conversation between herself and the appellant. In the conversation, she pressed the appellant on his actions, where he ultimately replied, “I sexually assaulted you”, and stated, “I started having sex with you when you were asleep, and then I stopped”. The appellant also admitted that the complainant was “[n]ot really” responsive.

In the trial, the appellant accepted he made the statements but claimed they were made to ‘placate the complainant’. The complainant stated she made the recording as a reminder not to resume the relationship.

The appellant was convicted on two of the four counts of rape in the initial trial.

The Recording

The appellant argued the admissibility of the recording as evidence from the District Court of South Australia up to the High Court. He argued that the recording was obtained illegally, meaning that there was a discretion to exclude the evidence. A discretion to exclude evidence, considered in the High Court decision of Bunning v Cross (1978), allows for the court to exclude improperly obtained evidence if the unfairness of its inclusion outweighs the public interest in the enforcement of law.

Under the Surveillance Devices Act 2016 (SA), section 4(2)(a)(ii) allows the recording of a conversation in circumstances where the recording is “reasonably necessary for the protection of the lawful interests” of the person recording. The Surveillance Devices Act 2007 (NSW) has a similar exception for recordings made if “reasonably necessary for the protection of the lawful interests of that principal party”.

The unanimous Potter judgment found that “bodily integrity and autonomy are recognised” as “fundamental rights” under the common law, meaning that the interest of a person in not being assaulted or raped is “deserving of the very strongest protection” under s 4(2)(a)(ii).

Moreover, given the complainant’s circumstances as a mother of two small children, with various health issues, and a “limited support network”, the likelihood of her exposure to the resumption of the relationship with the appellant was a real risk. This meant the recording was reasonably necessary to protect her, even if it was made simply to remind herself of the “peril” she would face if she resumed the relationship. This is particularly significant for victim-survivors because it acknowledges that recording can serve a protective function beyond assisting prosecution.

The appeal was dismissed, as the circumstances of the recording constituted the grounds necessary for it to be admissible evidence.

The case follows similar decisions made involving Surveillance laws. Notably, the case of DW v R [2014] in the NSW Court of Criminal Appeal, which concerned sexual offences where the victim was fourteen years old at the time of the offences. The complainant recorded a conversation with the perpetrator, and in the circumstances, it was found the recording was not to be excluded for use in court. The complainant’s interest in protecting herself from abuse was determined a “lawful interest”, and the appeal was dismissed.

Present Significance

The Potter decision has come at a time when action to prevent and respond to domestic violence is being widely advocated. Earlier this year in July, two girls and two women were allegedly murdered in the space of four days.

Advocacy groups have found many implementation gaps, especially within the legal system.

A report released by The Guardian at the end of last year revealed that in Queensland, the advisory board that was supposed to review intimate partner homicides and family violence deaths had ‘quietly stopped routinely analysing new cases’.

Another report by the Australian Law Reform Commission revealed 64 recommendations to improve legal responses to sexual violence. These included:

• The establishment of independent state and territory government mechanisms for complainants to provide feedback on their experience of the criminal justice system,
• Trauma-informed environments for victim-survivors, and training for those working in the field, and
• Public education programs about consent.

Alongside the Federal Government, the New South Wales State Government has acknowledged these recommendations, and invested into the implementation of certain justice responses.

Future of Covert Recording

The Potter judgment’s affirmation of “lawful interests” beyond legal rights and legal duties alone remains promising for victim-survivors of abuse and violence. The decision could broaden the scope for use of covertly recorded evidence in trials involving the protection of bodily autonomy and integrity.

However, ultimately, the unanimous judgment suggests a strong value in recognising protection from violence as a fundamental right in Australia.