The use of listening devices in NSW - evidence or 'off the record'?

With the advancement of technology, we now accept that what would otherwise be a private conversation may in fact be recorded. On a day to day basis, our discussions may be recorded for the benefit of record keeping, or simply for the improvement of customer service. 

Easily portable, and concealed, recording devices are no longer restricted to being specialised pieces of equipment. As we all know, the fact that most smart phones are equipped with a recording function means that recording devices are literally at our fingertips. 

This does not mean that it is necessarily lawful to make use of a recording that may have been made without the knowledge of one or more parties to a conversation. So, before you pull out your smart phone and record a conversation for use later on, it is worth considering what the law allows you to do with such recordings. 

The basic rule

In New South Wales, the legislation charged with regulating the terms of use of listening devices is the Surveillance Devices Act 2007 (NSW) (‘‘the SDA’). Breaches of the SDA can lead to the imposition of a penalty.

Listening device

The SDA defines a listening device as ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation’ but excludes devices to assist the hearing impaired, such as hearing aids.

Private conversation

The operation of the SDA extends to the use of listening devices in respect of a ‘private conversation’.  

A ‘private conversation’ is defined in the SDA as words spoken by one person to another ‘in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only’ by themselves, or by a person with consent of all the parties to the conversation. 

What is a ‘private conversation’ will turn of the facts of each situation.  In general terms, such a conversation would need to have an element of informality, and be a conversation that is ‘not public’. 

It is worth remembering that the Supreme Court of South Australia has held that management committee meetings attended by representatives of a joint venture were not ‘private conversations’, partly on the basis that the meetings had a formal commercial character and the attendees were required to report back to their principals so that business decisions could be made.

The prohibition

The SDA makes it unlawful for a person to use a listening device to record a private conversation to which the person is not a party.  This prohibition seems appropriate on a public policy basis in order to protect privacy and confidentiality of the general public.

In addition to this prohibition, the SDA makes it unlawful to ‘record a private conversation to which the person is a party.’  Without qualification, this prohibition would seem to go too far in preventing the use of covertly recorded conversations that may need to be relied on in order to prove a party’s legal position.  In that regard, there is an exception to the rule that parties can avail themselves of if required.

Exception to the rule 

Aside from certain operations involving law enforcement officers, there is one main exception to when a recording of a private conversation can be used, without the consent of all parties to the conversation.

The SDA allows for a ‘private conversation’ to be used in circumstances where a principal party to the conversation (being a person by whom words are spoken, and can be the person using the recording device) consents to the recording, and where ‘it is reasonably necessary for the protection of the lawful interest of that party.’

The Supreme Court of New South Wales has provided guidance on this exception.  During the course of proceedings, one party attempted to read an affidavit in court which contained a transcribed telephone conversation between the parties that had been recorded without the consent or knowledge of the other party.

The court found that the recording of the conversation was a step reasonably necessary for the protection of the party’s lawful interest, and allowed the evidence, given that at the time the conversation occurred and the recording was made ‘a serious dispute had erupted between the plaintiff and the defendant’, the recording was relevant to the matters for determination before the court and the litigation had already commenced at the time that the recording was made.  

As with the definition of ‘private conversation’, what constitutes a valid exception to the rule will need to be considered given the facts of each case. 

Even if the exception to the rule is not found to apply, it might nevertheless be possible to have the recording, or evidence based on it, admitted into evidence by relying on section 138 of the Evidence Act 1995 (NSW), which allows improperly obtained evidence to be admitted in certain circumstances.

Conclusion 

In summary, while it may be tempting to take a recording of a discussion that may in future be useful to you, there are rules surrounding when such a recording can lawfully be used as evidence in court. Depending on the circumstances in which the recording was made, the improper use of a recording device may mean that a resulting recording may not be used in evidence, and may well impact the credibility of the party attempting to use the recording.  Such credit findings might have ramifications beyond the court case in which they were made. 

Author: Gavin Stuart and Vivien Botsikas