The High Court on Wednesday dismissed an appeal by a South Australian man convicted of raping his wife while she slept, finding that the recording she secretly made of him admitting to one of the attacks was lawfully obtained and properly put to a jury. The judgment was unanimous.
The man can be identified only by the pseudonym Potter. He was convicted on two counts and is serving nine and a half years. The jury could not reach a verdict on two further counts.
About a month before the second offence, his wife recorded a conversation on her phone in which she confronted him and he admitted what he had done. She told the trial she made the recording to "convince myself never to go back to him no matter what happened".
Section 4 of South Australia's Surveillance Devices Act makes it an offence to use a listening device to record a private conversation, and that prohibition reaches conversations the person recording is party to. The Act then carves out exceptions. One of them applies where the use of the device is reasonably necessary to protect a lawful interest of the person doing the recording. The appeal turned on a narrow question: whether a woman's interest in not being raped is a lawful interest of that kind.
The court held that it is. "The interest of a person in not being raped is an interest deserving of the very strongest protection," the judgment said.
The judges also accepted the reason she gave for making it. The recording was, in the court's words, "the reminder to the complainant, by replaying it to herself, to avoid being exposed to the real risk of being raped". That reasoning locates the lawful interest in the woman's own safety rather than in the prospect of a future prosecution, which is the ground most often argued.
Heather Douglas, a professor at Melbourne Law School, said the significance lies in what the court put inside the exception. "The decision is important as it explicitly recognises that a lawful interest includes a right of bodily autonomy," she said.
The practical reach extends past the criminal courts. Applications for intervention and protection orders routinely turn on what one person says happened behind a closed door, with no witness and no document. A recording made by the person at risk, on the phone already in her hand, is the kind of evidence that has often been excluded at the threshold rather than weighed.
The reading is confined to the South Australian statute. Surveillance device laws differ across the states and territories, and the wording of the lawful interest exception differs with them. What travels is the reasoning, and lower courts elsewhere now have a unanimous High Court statement about what a lawful interest can include.
The conviction and the sentence stand. The two counts on which the jury could not agree were not before the High Court.
