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By upholding the use of a secret recording of a man admitting to raping his wife, the High Court has cemented the realities of domestic violence into legal precedent. For family lawyers, this decision could reshape their advice and support of victim-survivors.
In Potter (A Pseudonym) v The King, five justices of the High Court upheld the Supreme Court of Australia’s decision to admit into evidence a covert recording that captured a man admitting to raping his sleeping wife on multiple occasions between 2017 and 2020.
In allowing the recording to be adduced, the trial judge found the making of the recording was not unlawful because it was “reasonably necessary for the protection” of the woman’s interests under section 4(2)(a)(ii) of the Surveillance Devices Act 2016 (SA).
On appeal, two of the three judges held this section was not satisfied but dismissed the appeal on the basis the evidence should have been admitted in the exercise of the trial judge’s discretion.
When the matter reached the High Court, the issue was whether those two judges – Justices Sam Doyle and Sophie David – were correct to hold that the making of the recording did not satisfy the section.
“In so holding their Honours erred,” Chief Justice Stephen Gageler and Justices Michelle Gordon, Simon Steward, Jayne Jagot, and Robert Beech-Jones determined in their 5 August decision.
“The lawful interest that the complainant was seeking to protect was properly characterised by [Chief Justice Chris] Kourakis as her right of bodily autonomy and integrity (and any associated personal wellbeing).
“[Justices Doyle and David’s] mischaracterisation of the relevant lawful interest as the complainant’s interest in ending her relationship with the appellant understated the significance of the lawful interest sought to be protected.”
Speaking to Lawyers Weekly, Hayder Shkara, director of Justice Network, said what was important about this decision was “that the High Court recognised the reality of domestic violence”.
“Victim-survivors do not always immediately leave or report the abuse, and their actions must be understood in the context of fear and self-protection,” Shkara said.
While the assessment of “reasonably necessary” must be undertaken objectively, the High Court said it was also vital to understand the circumstances the woman faced. Given that she had been raped a number of times before the recording – including after the man had apologised for his actions – she was “completely vulnerable”.
As at December 2019, the woman was experiencing significant health issues, had responsibility for two small children, had a limited support network, and was living with her abuser.
“These circumstances exposed the complainant to the potential of either resuming, albeit reluctantly, the relationship with the appellant, or the status quo of him remaining in the home for a sustained period continuing. Both scenarios exposed her to the real risk of being raped again (as she was in January 2020).
“In those circumstances, it was readily understandable and, more relevantly, reasonably necessary (i.e., appropriate) that the complainant would record the appellant’s admission as a powerful audio reminder of the peril she faced if she remained in the same home as the appellant, or resumed a relationship with him.
“Just as visual imagery can be ‘peculiarly communicative’, an audio recording of such stark admissions was a far more powerful reminder than a handwritten note to herself,” the High Court said.
Whether or not it was possible for the woman to approach police “at that point” does not lend itself to whether it was reasonably necessary to use her mobile phone to record the conversation, the court added.
Further, the fact that the rapes occurred some years prior also “meant nothing in the context of a clear and ongoing risk” she faced.
Noting differing laws across states, Shkara said this decision could impact family law and protection order matters, as well as potentially sexual violence, because it provides a “strong basis to consider why someone felt they needed to record what was happening”.
With this in mind, Shkara said lawyers “should not automatically dismiss a covert recording as unlawful or unusable”.
“We need to understand why it was made, what risk the client faced and whether it was genuinely connected to protecting themselves or their children,” Shkara said.
Clients can be encouraged to keep notes, messages, photographs, medical records, and police reports “wherever it is safe to do so”, but Shkara still urged that lawyers be cautious “about advising someone to record secretly, particularly if it could be unlawful or place them in greater danger”.
Asked whether this decision could see a rise in recordings being used as evidence, Shkara said it was likely, given most people have a recording device in their pocket, “and clients are increasingly arriving with recordings, screenshots, and other digital evidence”.
“The challenge will be establishing that the material is complete, authentic, and properly understood in context,” Shkara said.
However, it was important to note that the High Court’s decision does not provide “blanket permission to secretly record a partner”.
“It was a South Australian case involving very serious circumstances, and the law varies across Australia. Whether a recording was lawful, whether it can be admitted and how much weight it carries remain separate questions,” Shkara said.
Citation: Potter (A Pseudonym) v The King [2026] HCA 25.
