Which case won?

The case for the brother
  • It is not a crime to record a conversation if a party to the conversation consents and the recording is reasonably necessary to protect that person’s lawful interests. My sister, L, consented to the use of the mobile phone to record the conversation with my father, and it was necessary to protect her lawful interest against our sister Y, who was scheming to get a greater share of the estate.
  • L and I are confident that Y was responsible for the disappearance of our father’s original will and have good reason to believe that Y was not as involved in the care of our father as she claimed to be.
  • L had a lawful interest in protecting her credibility should this dispute with our sister end up in court, which it has. L needed proof of the true position, that Y was not as involved in the care of our father as she claimed to be.
  • It was reasonably necessary to keep the listening device secret from our father. If L had told him about it, he may not have spoken freely to avoid becoming involved in a family brawl. By secretly recording the conversation, L ensured that our father’s comments would be considered accurate.
  • It was also preferable to make a secret recording, rather than a contemporaneous written note, because Y would have challenged the veracity of a note written by either L or my father.
  • In any event, even if the making of the recording was illegal, the court has discretion to admit the recording as evidence anyway. This is a clear case where that discretion would apply. The gravity of the secret recording was relatively mild.
  • My father is now deceased, so using the recording won’t embarrass him or breach his privacy. Further, in family provision claims the court typically has great regard for evidence of a deceased person. The recording would be of assistance to the court to hear what our father, the deceased, actually said.
  • Since the making of the recording was not illegal and any alleged impropriety was mild, the court should admit the recording into evidence.
The case for the sister (executor)
  • When my sister L made the secret recording, neither she, nor my brother, nor I were actively contemplating litigation. Rather, L made the recording thinking that if litigation arose down the track, she could use the recording to her advantage.
  • The law is very clear that secretly recording a conversation “just in case” litigation arises at some point in the future is not protecting a lawful interest. As such, the making of the recording was illegal and the recording is inadmissible into evidence.
  • Contrary to what my brother has argued, this is not a case where the court should exercise its discretion to admit the illegally obtained evidence anyway. If the court were to do so, it would endorse the view that it is acceptable for children to secretly record their parents’ conversations just because they believe they are entitled to receive a distribution from a parent’s estate.
  • The court’s interest in upholding the public policy of excluding illegally obtained evidence far outweighs the probative value of L’s recording.
  • Given that the making of the recording was illegal and that it would seriously undermine public policy to admit such a recording, the court should rule that the evidence is inadmissible.

So, which case won?

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Expert commentary on the court's decision

“It can be a risky strategy to secretly record one’s parent for the purposes of a will dispute. Knowingly using a listening device to record a private conversation to which the person is a party is a criminal offence punishable by up to five years in prison. Secretly recording the testator also comes with other potential pitfalls.”
Supreme Court rules in favour of brother, allowing recording into evidence

In the case Rathswohl v Court [2020] NSWSC 1490, the NSW Supreme Court found in favour of the brother, Robert Rathswohl, ruling that the recording made by his sister, Lisa Davies, was admissible as evidence to support his family provision claim.

The court rejected the arguments of the other daughter who was also the executor, Yvette Court.

Illegally obtained evidence inadmissible under Evidence Act

Under section 138 of the NSW Evidence Act 1995, evidence that has been obtained in contravention of an Australian law must not be admitted in court, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in such a way.

Use of listening device to record private conversation illegal unless necessary to protect lawful interest

In determining whether the recording made by Lisa was inadmissible under section 138, the court had to determine whether the recording was obtained in contravention of the law.

This question turned on whether the making of the recording was illegal under section 7(1)(b) of the NSW Surveillance Devices Act 2007 (“the Act”).

According to section 7(1)(b), It is an offence for a person to knowingly use a listening device to record a private conversation to which the person is a party.

However, it is not an offence under section 7(1)(b) if a principal party to the conversation consents to the use of the listening device and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that party (section 7(3)(b)(i) of the Act).

Therefore, the question before the court was whether recording the private conversation was reasonably necessary for the protection of Lisa’s lawful interests

Surveillance Devices Act targeted at preventing invasions of privacy

The court, quoting from parliamentary support material, highlighted that the Act and section 7(1)(b) serve “to safeguard against the unjustified invasion of privacy that can be occasioned by the use of electronic surveillance” and also:

…to protect the rights of people to enjoy their private lives free from interference by the State or by others. People should not be expected to live in the fear that every word that they speak may be transmitted or recorded and later repeated to the entire world.

Noting that the words and phrases in section 7(3)(b)(i) are not defined in the Act , the court turned to relevant civil, criminal and family caselaw for guidance.

Desire to have reliable record of conversation in case of future dispute not usually a lawful interest

The court noted that its research of the caselaw did not reveal any cases specifically concerning the use of a listening device in a family provision claim.

The closest case factually was Thomas v Nash, in which a son secretly recorded conversations with his mother in an attempt to show whether she had capacity to make a will.

The son claimed that he did so in case his mother forgot things. However, the deciding court concluded that he actually made the recordings in case it might later turn out that he could use them to his advantage in some way.

The court in Thomas v Nash highlighted that the expression “relevant interest” is not comprehensively defined in caselaw. It is an expression best left to be applied case by case to the particular facts, subject to some general guidelines.

One of these guidelines is that where no litigation is contemplated at the time of the recording, the mere hope that one might use the recording to his or her advantage in future litigation is not a lawful interest.

In other words, you can’t make a secret recording “just in case”.

Accordingly, the son’s recording was not admitted into evidence.

Secret recording not usually reasonably necessary if complaint can be referred to police for issue of warrant

In Sepulveda v R, a man made a secret recording of a conversation with an accused person for the purpose of bringing justice for alleged criminal acts committed by the accused against him and his brothers when they were children.

The man then sought to use the recording to blackmail the accused.

The deciding court considered whether the recording was reasonably necessary.

“Reasonably necessary” was taken to mean “appropriate and not essential”.

The court ruled that the recording was not “reasonably necessary” and therefore was inadmissible. This was because the man could have approached the police with his complaints, and the police could have obtained a warrant to record the conversations lawfully.

It was also noted that the exception in section 7(3)(b)(i) should be construed narrowly, to avoid people in the community making covert recordings of conversations, rather than bringing matters to the relevant authorities.

Lawful interest can exist even if police warrant an option

A somewhat analogous case to Sepulveda is DW v R.

A 14-year-old girl made a secret recording of her father, who was later convicted of indecent assault and child pornography offences.

The court found that the child’s interest not to be a victim of serious criminal offences was a lawful interest, and that it was reasonably necessary to make the recording to protect this lawful interest.

The court distinguished the facts from Sepulveda because the girl was young, possibly unaware of the ability to complain to the police, thought her stepmother would not believe the allegations, was frightened of her father and of potential further abuse and did not seek to blackmail her father.

Parent may have lawful interest justifying secret recording if other parent suspected of child abuse

In Latham v Latham, a father made secret recordings of the mother of his children, including recording abusive comments indicating that she was a child abuser.

The recordings were admitted as evidence on the basis that they were reasonably necessary to protect the father’s lawful interests, including “the likelihood that the wife would deny the conversations; that the husband needed to protect himself from risk of the accusation that he had fabricated the conversations; and, to avoid being labelled a liar”.

Credibility at stake in serious dispute between siblings

After reviewing the relevant caselaw and applying it to the facts of this case, the court was satisfied that it was reasonably necessary for the protection of the lawful interests of Lisa Davies to record the conversation with her father.

Unlike “just in case” scenarios such as Thomas v Nash, a serious dispute existed between the children as to their father’s will and care at the time the recording was made.

The children were jostling for position, with one daughter, Yvette, claiming she was the only one caring for the parents.

Her brother Robert and sister Lisa thought Yvette was responsible for the disappearance of their father’s will, which left his estate to the children equally.

Lisa had a lawful interest in ensuring that her evidence in this serious dispute was not disbelieved. The recording would ensure that her evidence was credible, especially since her father would not be alive to speak on the subject at the time of any litigation.

Lawful interest in ascertaining veracity of sister’s claims

The court found that at the time of the recording, Lisa also had a lawful interest in ascertaining whether her sister Yvette’s claim to warrant greater provision under her father’s will was truthful or exaggerated.

This was so even though Lisa did not have a legal right to dictate how her father divided up his assets in his will.

No blackmail involved and no avenue to obtain police warrant

The court noted that, unlike in Sepulveda, Lisa was not using the recording to blackmail her father. Rather, she had an identifiable concern about the potential for significant harm to her lawful interests.

The court also noted that, unlike in Sepulveda, Lisa had no avenue to ask the police to obtain a warrant, since this was not a criminal case.

Given the court’s conclusion that it was reasonably necessary for the protection of Lisa’s lawful interests to record the conversation with her father, no offence was committed. So, the recording could not be ruled inadmissible under section 138 of the Evidence Act.

Recording parent for purposes of will dispute is risky strategy

Even though the court found that Lisa had legally made the recording and that the recording was admissible as evidence, it can be a risky strategy to secretly record one’s parent for the purposes of a will dispute.

Knowingly using a listening device to record a private conversation to which the person is a party is a criminal offence, punishable by up to five years in prison.

Secretly recording the testator also comes with other potential pitfalls.

First, as the court noted, making secret recordings does not ordinarily reflect well on the person doing so, because it is a breach of the will maker’s privacy. This breach is not lessened just because the will maker is deceased.

The court also emphasised that courts may have limited regard to a recording because it may not be particularly accurate as to the testator’s true thoughts on contentious subjects.

Finally, the court pointed out that a recording may unwittingly contain evidence which is damaging to the person making it.

For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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