This is a complex area of law as it largely depends on who wants the recording as evidence in court, how it was illegally obtained, for what purposes the recording is being admitted as evidence in court and its importance to the case.
There are particular rules for the police to follow when recording evidence in order for it to be used in court.
This article will broadly discuss audio and film recordings by both private individuals, and police.
There is an in-depth analysis of various forms of recordings obtained illegally or improperly, and their admissibility in court, here.
Audio recordings between individuals
In NSW, Section 11 of the Surveillance Devices Act 2007 prohibits a person from recording the private conversation of another without their consent.
For example, you may be on the telephone to a company and hear a recorded message notifying you that the phone call will be recorded, unless you ask for it not to be.
Any audio recording between private individuals that is obtained covertly without consent is unlawful.
All states prohibit the admission of evidence that has been unlawfully recorded.
Courts in NSW must exclude improperly or illegally obtained evidence in criminal cases under Section 138 of the Evidence Act 1995 if the undesirability of admitting evidence obtained in that way outweighs the desirability of admitting it.
This means that even though the recording was obtained illegally, it may still be used in court if the desirability of admitting the recording outweighs the undesirability of admitting material obtained in that particular way.
Many factors will be considered when making that decision, but put simply, the court will weigh the gravity of the unlawfulness of the recording against the importance of the evidence in the case.
For example, a person might covertly record a conversation in which they attempt to get another person to admit to doing something illegal, or they might secretly record someone threatening them.
These recordings obtained secretly will often not be admissible as evidence.
However, the court may consider what is said in the recordings, and how important they are to the case.
The recordings may be admissible if the judge considers the importance of the evidence outweighs how it was unlawfully obtained.
It is hard to determine just how the judge will balance out these considerations.
It can depend on how it is argued in court.
A good court lawyer is advisable in these situations.
Film recordings between individuals
A film recording of something that has happened in a public space does not require the person’s consent, unlike an audio recording.
Any video recorded without the person’s consent is not illegally recorded, and can be used in court.
The admissibility of the film recording may have a limited purpose in court, however.
For example, the film can be admitted to prove the identity of a person, the place or date where the footage was taken, or to admit a representation that is inconsistent with the evidence of a witness.
However, the film can’t be used in court just to prove a prior statement consistent to what a witness is saying in court (unless that statement is challenged).
This is a technical area of evidence law, and its best to get legal advice from a criminal defence lawyer with expertise in the laws of evidence.
Audio and film recordings by police officers
Police officers are required by law to video-record police interviews, and to obtain your consent to do so.
Any audio or written record by a police officer of your statements must be heard by you or read back to you, and signed as true and accurate.
There are times when the police can obtain covert audio or film recordings, but they must have a listening device or surveillance warrant before conducting such an activity.
So while the recording is covert, if a warrant has been issued, it is not an illegal recording and the evidence can be used in court.
There may be instances where an informer is acting for police and obtaining covert recordings of conversations.
Like unlawful audio recordings, the court will balance the level of impropriety by the police or the informer against the usefulness or purpose of admitting the evidence in court.
If you have had a conversation of yours unlawfully recorded, you should get professional legal advice to discuss your rights.
If you are intending to record a conversation with another, it is best practice to get that person’s consent.
If it is covertly obtained, the evidence is inadmissible unless you can show the court there is good reason for it to be admitted.
This task is best handled by court lawyers who are experienced in laws of evidence, such as the Senior Criminal Defence Lawyers at Sydney Criminal Lawyers.