14 Aug The Admissibility of Recordings in Criminal Proceedings: A Crucial Consideration

In the realm of criminal law, the admissibility of recordings is a topic that can significantly impact the outcome of a case. As a leading criminal defence law firm, FEDOROV Family Lawyers has navigated numerous cases where the legality and admissibility of recordings were pivotal issues. Understanding the complex legal framework surrounding recordings is essential for anyone involved in or affected by criminal proceedings.

Understanding the Legal Framework

Recordings, whether audio or video, can serve as compelling evidence in court. However, their admissibility is not guaranteed and is subject to stringent legal scrutiny. The legality of obtaining such recordings and the circumstances under which they were made play a critical role in determining whether they can be used as evidence.

Telecommunications (Interception and Access) Act 1979 (Cth)

The first piece of legislation to consider is the Telecommunications (Interception and Access) Act 1979 (Cth). Section 7 of this Act defines an ‘interception’ as the act of listening to or recording a ‘communication passing over the telecommunications system.’ This means that intercepting phone calls, text messages, or any other form of telecommunication without the consent of the parties involved is generally illegal.

Such recordings are often deemed inadmissible in court, except in specific circumstances where a warrant has been issued or other legal exemptions apply. For example, in large drug syndicate cases, the police can apply for warrants to monitor and record phone calls and/or messages between persons of interest.

Surveillance Devices Act 2007 (NSW)

The Surveillance Devices Act 2007 (NSW) adds another layer of complexity to the admissibility of recordings. Section 4 defines a ‘listening device’ as any device capable of overhearing, recording, or monitoring conversations. Importantly, this definition excludes hearing aids or similar devices used to overcome hearing impairments.

Under Section 7 of the Act, it is illegal to knowingly install, use, or maintain a listening device to record a private conversation unless you are a party to that conversation. Even if you are a party, recording the conversation without the other person’s consent is generally prohibited.

However, there are exceptions. For instance, if the recording is ‘reasonably necessary for the protection of the lawful interests’ of a party to the conversation, it may be admissible. This exception was explored in the case of Sepulveda v R [2006] NSWCCA 379, where the court recognised the broad construction of ‘lawful interest’ but also emphasised that the primary purpose of the Act is to protect privacy.

The Role of Section 138 Evidence Act 1995 (NSW)

Even if a recording is deemed illegal under the Surveillance Devices Act 2007 (NSW), it does not automatically become inadmissible in court. This is where Section 138 of the Evidence Act 1995 (NSW) comes into play. This section provides the court with the discretion to admit illegally obtained evidence if the desirability of admitting the evidence outweighs the undesirability of how it was obtained.

The case of Bandao v R [2018] NSWCCA 181 is a pertinent example. In this case, the court highlighted that the Surveillance Devices Act 2007 (NSW) does not contain provisions dealing directly with the admissibility of unlawfully recorded conversations. Instead, Section 138 of the Evidence Act 1995 governs this aspect. The court must weigh several factors, including the probative value of the evidence, the importance of the evidence in the proceedings, and the nature of the relevant offence.

Burden of Proof and the Role of Section 90 Evidence Act 1995 (NSW)

When a party objects to the admissibility of a recording, they bear the burden of proving, on the balance of probabilities, that the recording was obtained illegally. If they succeed, the prosecution must then demonstrate why the evidence should be admitted, despite the illegality.

Furthermore, Section 90 of the Evidence Act 1995 (NSW) provides another layer of protection for defendants. It allows the court to refuse to admit evidence if it would be unfair to the defendant, taking into account the circumstances in which the admission was made.

In R v Frangulis [2006] NSWCCA 363, the respondent took part in recorded interviews with a private investigator engaged by the insurer of the restaurant business that he was later charged with deliberately damaging by fire for gain. The investigator viewed the respondent as one of a number of suspects and was also acting on behalf of the police. The trial judge rejected the tender of the interviews, which the prosecution relied upon as admissions. The NSW Court of Criminal Appeal found that, even if the investigator were not acting on behalf of the police or had not seen the respondent as a suspect, there was no reason why evidence of the interviews could not have been led and held it was admissible, just as an unguarded incriminating statement to a relative or friend would be.

At FEDOROV Family Lawyers, we recognise the intricate balance between protecting individual privacy and ensuring that justice is served. The admissibility of recordings in criminal proceedings is a nuanced issue, one that requires careful legal analysis and a deep understanding of both statutory law and case law precedents. Whether you are facing charges or seeking to protect your rights, it is crucial to have a defence team that understands these complexities and can advocate effectively on your behalf.