On 5 August 2026, the High Court dismissed an appeal by a South Australian man convicted of raping his wife while she slept. The evidence at the centre of that appeal was a conversation she recorded on her phone, without his knowledge, in which he admitted what he had done. All five justices held the recording was lawfully made.
What the High Court Decided
In Potter (A Pseudonym) v The King [2026] HCA 25, the complainant recorded a conversation in which she confronted her husband, and he admitted to one of the assaults. Critically, she gave evidence that she made the recording to remind herself never to return to him — not to build a case against him.
In South Australia (similar to New South Wales), secretly recording a private conversation is an offence unless the recording is reasonably necessary to protect a person’s lawful interests, under section 4(2)(a)(ii) of the Surveillance Devices Act 2016 (SA). Gageler CJ, Gordon, Steward, Jagot and Beech-Jones JJ unanimously held that her lawful interest was her bodily autonomy and integrity – her right not to be raped – and described it as an interest deserving “the very strongest protection”.
It is worth noting the history of this matter and how it was contested on the way to the High Court. Originally, the trial judge admitted the recording under the exception. On appeal, a majority of the South Australian Court of Appeal held the exception was not satisfied, and dismissed the appeal on a different basis. The High Court restored the trial judge’s view, finding the evidence admissible.
Why It Matters in NSW - and Why It Is Not Automatic
In New South Wales, the equivalent provision is section 7 of the Surveillance Devices Act 2007 (NSW). Recording a private conversation is an offence carrying a maximum of 100 penalty units, five years’ imprisonment, or both. Section 7(3)(b)(i) creates the exception: where a principal party consents and the recording is reasonably necessary for the protection of that party’s lawful interests.
The wording closely mirrors the South Australian provision, so Potter will carry real persuasive weight in NSW courts. It is not, however, a rewrite of NSW law. It is guidance on how to read “lawful interests”, applied to facts at the most serious end of the scale.
That last point matters. The Court’s reasoning was tethered to the gravity of the interest being protected. It does not follow that every recording made inside a difficult relationship is protected. Whether the same reasoning extends to non-physical abuse, including coercive control, has not been tested at that level.
Lawful and Admissible Are Not the Same Thing
Even a lawfully made recording still has to get through the Evidence Act 1995 (NSW). A judge can refuse to admit evidence under sections 135 and 137 where its probative value is outweighed by unfair prejudice, exclude an admission under section 90, or exclude improperly or unlawfully obtained evidence under section 138. Recordings made to provoke or goad an admission attract close scrutiny. Admissibility remains a decision for the judge, based on the facts of the case before them.
If the exception does not apply to you, the recording is itself a criminal offence. Section 11 of the same Act separately restricts communicating or publishing what you obtained.
If a Recording Is Being Used Against You
A covert recording is evidence, not a verdict. Its provenance, completeness, editing and context are all open to challenge, as is whether the statutory exception applied at all and whether section 138 favours exclusion. Weight is a separate question again. These arguments are live in sexual assault and domestic violence proceedings, and they turn entirely on the individual facts.
Potter is a hugely significant decision and, on its facts, an unsurprising one. But it did not change the Surveillance Devices Act 2007 (NSW), nor did it make covert recordings automatically admissible anywhere in the country. If you are weighing up whether to make a recording, or if a recording has appeared in a brief of evidence against you, that is a question for advice on your own circumstances; speak with our experienced team today.
