When can recorded materials be submitted in court?

6 July 2016
 Categories: Law, Blog


There is a growing number of Family Court cases which use illegally recorded materials as part of the evidence. The growing sophistication of smartphones as recorders, as well as the smaller size or surveillance cameras and recorders, has made it much easier to capture phone calls and personal interactions. Here are some guides as to when and how recorded materials can be used in court. 

Can the person expect that they are being recorded?

If your staff work in a retail environment, for example, they can expect to be recorded if the workplace is signposted that security cameras are in place. Whilst the primary use of the cameras may be to record customer behaviour any illicit behaviour by staff that is caught on camera can be used in disciplinary action, and in any subsequent court action. As many commercial recording systems discard recordings after a certain period it's a good idea to copy any footage that you use as proof to discipline staff to a separate format so that it can be stored and accessed later if there are any disputes over what has occurred. 

How probative (relevant) is the information being recorded?

Family Court recordings are often used to record suspected physical or sexual abuse of children. As this cannot be easily proven by other means, in some cases parents are willing to bypass the legalities of illegally recording a spouse to get direct proof of this issue. The court will consider the nature of the recording. Recordings that directly prove that the child is in physical harm may result in contact being supervised while the matter is being investigated. 

Conversations that are manipulated to try and achieve a result will not often be allowed, particularly where children are involved. The court views both the actual circumstances being recorded as well as the situation around getting the recording when considering how to treat the evidence. In some cases obtaining and submitting the recordings can reflect poorly on the person submitting the recordings, particularly if they have attempted to manipulate the child or their ex-spouse. 

If you are not sure whether you can use recorded materials to support an upcoming court case, it is wise to get advice from a lawyer. They can help to review relevant case law in the area and advise on the best way to build a case and maximise you chances of a successful result.