source : the age
Warning: Graphic content
A wife’s secret recording of her husband admitting he had raped her has been used by prosecutors to help secure his conviction.
The man fought all the way to the High Court to have the audio recording, made on a mobile phone, excluded from evidence in his trial.
The court this week dismissed the man’s appeal against his conviction on two counts of rape and ruled the recording was admissible in evidence.
The man, whose identity cannot be revealed because it would indirectly identify his former wife, was convicted in 2023 of two counts of rape.
A covert recording, made by his wife in 2019 before one of the assaults, captured him admitting to her that he had “started having sex with you when you were asleep” and had “sexually assaulted” her.
Asked during the recorded conversation if she was “responsive at all”, he said: “Not really, no.”
“In his evidence at the trial, the appellant accepted that he made those statements but said he made them to placate the complainant,” the High Court said.
The wife said in written evidence that she had made the recording on her mobile phone “so that I could use it to convince myself never to go back to him”.
“At the time, I had no intention of taking it further,” she said.
The prosecution alleged the man had sex with the complainant without her consent on four occasions while she was sleeping. A South Australian District Court jury found him guilty of two counts of rape but was unable to reach a verdict in relation to the other two counts.
‘Bodily integrity and autonomy are recognised by the common law as a “fundamental right”. Rape is a violent affront to that value.’
The High Court in Potter (A Pseudonym) v The King
The complainant told the court she awoke on both occasions to find her husband having sex with her, and that on other occasions she suspected he had assaulted her because she woke up with pain and bleeding.
Under South Australian law, it is unlawful in some circumstances to record a private conversation, but there is an exception where it is “reasonably necessary for the protection of the lawful interests” of the party to the conversation making the recording. There are similar laws in NSW.
It is an offence in Victoria and Queensland to publish such a recording in some cases, but protecting lawful interests is among the exceptions.
The man appealed against his convictions, arguing the exception in SA law was not satisfied and the evidence should have been excluded because the recording was unlawful.
It is unclear how much weight the jury gave the recording in reaching their verdicts, because juries do not deliver reasons.
However, the man’s lawyers argued that “issues of contested credibility” were at the heart of the trial and the wrongful reception into evidence of the recording “had the capacity to materially bear upon the jury’s evaluation of both accounts”.
In rejecting the appeal, the High Court ruled the recording was lawful and the evidence was admissible.
“[The] complainant’s use of her phone to make the covert recording was reasonably necessary to protect her lawful interests,” Chief Justice Stephen Gageler and Justices Michelle Gordon, Simon Steward, Jayne Jagot and Robert Beech-Jones said.
“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 [the law permitting the recording].”
The court said it was both understandable and appropriate for the complainant to record the admission “as a powerful audio reminder of the peril she faced if she remained” with the man.
“[An] audio recording of such stark admissions was a far more powerful reminder than a handwritten note to herself.”
Just because the complainant could have gone to the police at this point did not mean it was not reasonably necessary for her to record the conversation, the court said.
The man is serving a maximum prison sentence of nine years and six months, with a non-parole period of five years.
University of Wollongong Professor Julia Quilter, a criminal law expert, said the court sent a unanimous message about “the importance of bodily integrity and autonomy, and that rape is a violation of the most significant order in terms of impacting that right”.
It also made clear that the mere fact the complainant might have a different mechanism for pursuing the same outcome “doesn’t mean that what she did was illegitimate or wrong”.
Quilter said the judgment set out with sensitivity the relationship in this case, helping to counter misconceptions a juror or a member of the public might have about why women may not flee abusive relationships.
The court noted the complainant explained she had two small children, health problems, minimal family support, and came from a religious family.
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