This is a sample (posted 18 September 2026) of “Latest Notable Cases”, which is posted monthly with live links for members at the Members’ Home Page under Members’ Practice News. Also available at our Members’ Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members’ Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.
Evidence – Separated wife’s covert recording of husband’s admissions of previously raping her while she was asleep were properly admitted into evidence – Recording was reasonably necessary for the protection of wife’s lawful interests, being her bodily autonomy and integrity, within the meaning of s 4(2)(a)(ii) of the Surveillance Devices Act 2016 (SA)
In Potter (A Pseudonym) v The King [2026] HCA 25 (5 August 2026) the High Court (Gageler CJ, Gordon, Steward, Jagot & Beech-Jones JJ) heard an appeal that related to covert recordings taken by mobile phone, admitted as evidence in a criminal trial.
The complainant wife and the appellant husband lived together from 2014, married in 2015 and had two daughters together. The appellant was charged with four counts of rape of the wife. He was found guilty of two counts. The first 3 charges were offences alleged to have occurred before separation. The fourth charge was alleged to have occurred after separation, but while they were living under the same roof.
Between the third and fourth incident, the wife recorded a conversation with the husband on her mobile phone without his knowledge, in which he “admitted to having previously sexually assaulted the complainant while she was asleep” ([3]). At trial before the District Court of South Australia, the trial judge admitted the recording pursuant to s 4(2)(a)(ii) of the Surveillance and Devices Act 2016 (SA) (“SDA”).
On appeal, the majority of the Court of Appeal of the Supreme Court of South Australia held that s 4(2)(a)(ii) was not satisfied, but that the trial judge ought to have admitted the evidence as part of the Court’s discretion to admit unlawfully obtained evidence. Kourakis CJ dissented, holding that s 4(2)(a)(ii) did apply. It was common ground before the High Court, that if s 4(2)(a)(ii) was not satisfied there was no discretion to admit unlawfully taken evidence ([4]).
The High Court said that the SDA made the recording of a private conversation an offence, but also noted that s 4(2)(a)(ii) created two exceptions, namely where all parties consent to the recording device being used, or if “the use of the device is reasonably necessary for the protection of the lawful interests of that person” ([10]).
The High Court said (from [21]):
“The complainant said that, during the period in which the first three counts occurred, she was committed to remaining in her marriage…
[22] The prosecution adduced evidence of an uncharged act in August 2019 committed by the appellant… The complainant said she awoke to find herself with pain in her vagina and bleeding, as with the previous incidents. She again confronted the appellant. They exchanged messages via social media in which she protested about his having sex with her while she was asleep. The complainant told the jury that, following this incident, she decided to separate from the appellant, although they continued to live together in the same house with the appellant sleeping in a separate room.
[23] … During December 2019 the appellant and the complainant had consensual sex. The complainant stated that afterwards she ‘realised … that I couldn’t do it anymore’ and thereafter she ‘made very strict boundaries’. The complainant gave evidence that the appellant ‘understood’ that further intercourse ‘wasn’t to happen anymore’.
[24] On 14 December 2019, the complainant made the covert recording. … During the recorded conversation, the complainant pressed the appellant to reveal what he did to her… The appellant ultimately replied ‘I sexually assaulted you’. Later he stated that ‘I started having sex with you when you were asleep and then I stopped’… In his evidence at the trial, the appellant accepted that he made those statements but said he made them to placate the complainant.
( … )
[29] The trial judge admitted the covert recording… Her Honour concluded that the listening device was used in a way which was reasonably necessary to protect a lawful interest of the complainant, “namely she had the right to protect herself from further crimes of rape by the accused in the form of not resuming her relationship with him”. Her Honour concluded that, by operation of s 4(2)(a)(ii), s 4(1) of the SDA did not apply and thus the ‘recording was [not] unlawful’…
( … )
[46] … [G]iven the multitude of circumstances to which the provision may apply and the other limits on the scope and application of s 4(2)(a)(ii), ‘reasonably necessary’ is not to be understood as meaning that the use had to be ‘essential’, but instead it is sufficient if the use was ‘appropriate’ to protect the lawful interest. …
[47] The term ‘reasonably’ imports an objective evaluation to be applied to the circumstances existing at the time of the use of the listening device to record the private conversation… However, as this case illustrates, that evaluation is to be undertaken by reference to the circumstances faced by the party using the device to record the conversation at the time the device was used… The person’s reasons for making the recording will inform but not determine the analysis…
[48] Further, to satisfy s 4(2)(a)(ii), the use of the listening device must be reasonably necessary for the ‘protection’ of the relevant lawful interest. The concept of ‘protection’ connotes defence or preservation from harm or danger… or impairment.
( … )
[54] In characterising the complainant’s purpose of making the recording as being a ‘reminder to herself not to resume the relationship’ with the appellant, [the majority of the Court of Appeal] … identified the relevant lawful interest as the complainant’s interest in ‘escaping from her relationship’ with the appellant. While the right of personal autonomy enjoyed by an adult in choosing to remain in or leave a relationship is a lawful interest, that was not the proper characterisation of the relevant lawful interest sought to be protected by the complainant. The complainant’s concern was not to resume her relationship. The covert recording (and its use…) was the reminder to the complainant, by replaying it to herself, to avoid being exposed to the real risk of being raped and sexually assaulted (principally while she was sleeping). The questions she asked of the appellant that were covertly recorded were principally focused on establishing whether he raped her and not any other aspect of their relationship.
[55] The lawful interest that the complainant was seeking to protect was properly characterised by Kourakis CJ as her right of bodily autonomy and integrity (and any associated personal wellbeing)… Important as a person’s personal autonomy in respect of their choice of personal relationships is, that interest is different from and of lesser importance than the ‘right in an individual to choose what occurs with respect to his or her own person’… Bodily integrity and autonomy are recognised by the common law as a ‘fundamental right’… Rape is a violent affront to that value, and the interest of a person in not being raped is an interest deserving of the very strongest protection in the application of s 4(2)(a)(ii).
( … )
[58] … [I]t was readily understandable and, more relevantly, reasonably necessary (ie 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. Further, just because it was possible for the complainant to approach the police at that point does not mean that it was not reasonably necessary to use her mobile phone to record the conversation…
[59] The trial judge did not err in holding that the use by the complainant of her mobile phone to make the covert recording of the conversation with the appellant on 14 December 2019 did not contravene s 4(1) of the SDA. The evidence of that conversation was properly admitted at the appellant’s trial.”
The appeal was dismissed.
Our latest notable cases this month also include summaries of cases that involve the following:
Costs – Law firm loses appeal from the dismissal of its application for $879,613.45 in fees from former client – Costs disclosure pursuant to s 174 Legal Practitioners Uniform Law 2014 (NSW) first given to client 16 days after work commenced – Costs agreement void – As client only retained a property that was hers, there were no “fruits of the litigation” to support solicitor’s lien
Children – No error in orders for indefinite supervision of father’s time with 7 year old child – Court cannot find that supervision is required to ameliorate risk, then decline to order supervision because of its potential impact on the child
Children – Mother’s acts of self-harm during mental health crisis did not preclude that behaviour meeting the definition of “family violence” – No error in Court’s findings as to mother minimising or masking her mental health symptoms and that she posed an unacceptable risk to the children
Property – No procedural unfairness in Court adopting a two-pool approach and splitting superannuation as that approach was “within the range of outcomes agitated by each party” – Error found as Court did not adequately explain reasons for 75:25 division of superannuation pool in favour of one party, but 65:35 division of non-superannuation pool in favour of the other
Financial agreements – Wife and deceased husband were not separated at the time of the husband’s death, so their financial agreement under s 90C did not become operative
Procedure – Artificial intelligence – AI chatbot tool used by a litigant in person did not care about the truth of material generated – Tendency of AI language models to prioritise user approval over truth can make them “especially dangerous and unpredictable” – Applicant’s fair work claim dismissed
