Key takeaways
The High Court confirmed that protecting a victim‑survivor’s bodily integrity and autonomy can justify admitting a secret recording into evidence.
The reasoning in Potter strengthens the argument that secret recordings may be admissible where they safeguard a person’s lawful interests, including safety from DFSV.
The decision supports a more trauma‑informed approach to evidentiary challenges, recognising DFSV as a threat to autonomy.
In a recent High Court decision, Potter (a Pseudonym) v the King [2026] HCA 25 ('Potter’), five justices unanimously held that a secret recording could be used in evidence against a user of violence as it was necessary to protect the victim-survivor’s fundamental right of bodily integrity and autonomy.
Overview of Potter v the King
Potter ('the appellant’) stood trial for four counts of rape in the District Court of South Australia. The complainant for each count was his wife. The appellant was convicted on two counts and the jury was unable to reach a verdict on the remaining two counts.
The prosecution alleged that the appellant had sex with the complainant on multiple occasions without her knowledge and consent while she was asleep. The first three counts allegedly took place during 2017 and 2018, and the last count was alleged to have occurred in January 2020.
In December 2019, the complainant secretly recorded a conversation between herself and the appellant. During the conversation, the appellant admitted to sexually assaulting the complainant while she was asleep. The complainant deposed to making the recording so that she could use it as a reminder not to resume a relationship with the appellant, no matter what he said or did.
In many jurisdictions in Australia, it is unlawful to record private conversations, without the other person’s consent, including in South Australia where this case originated. However, the law in South Australia allows the recording of a conversation in circumstances where it is "reasonably necessary for the protection of the lawful interests” of the person recording.1
The appellant argued the admissibility of the recording as evidence at the trial, through to the Court of Appeal and then to the High Court.
The High Court ultimately found that the secret recording was properly admitted into evidence because "bodily integrity and autonomy” are "fundamental rights” and the "interest of a person in not being raped is an interest deserving of the very strongest protection”.2 Further, the High Court noted that it was understandable, necessary and appropriate that the complainant recorded the appellant’s admission as a reminder of the "peril” she faced if she resumed a relationship with him.
Applicable law in Queensland
The law relating to secret recordings differs in Queensland from South Australia. In Queensland, a party to a private conversation may use a listening device to record a private conversation. However, it is an offence for that party to communicate the conversation or publish it.3 This generally means that recordings of private conversations may not be used as evidence in court proceedings, though this is subject to a number of exceptions.
The most relevant exception in this case, and similar to South Australian law, is where a recording is communicated or published because it is "reasonably necessary for the protection of the lawful interests of that person”.4 Arguably, Potter clears up any ambiguity regarding the admission of secret recordings into evidence in Queensland court proceedings where the legal rights to be protected involve the bodily integrity and autonomy of the person recording the conversation.
'Bodily integrity and autonomy’ of the person in DFSV cases
Domestic, family and sexual violence ('DFSV’) has a wide definition and includes any behaviour that is physically, sexually, emotionally, psychologically or economically abusive, as well as behaviour that is threatening, intimidating or coercive.5 Potter makes it clear that sexual abuse, such as rape, violates the principles of bodily integrity and autonomy, and arguably this would extend to physical abuse. However, it is less clear if this extends to more ‘subtle’ forms of DFSV, such as coercive control or emotional abuse.
As most, if not all, non-physical forms of DFSV are aimed at stripping away the victim-survivor’s independence, freedom of choice and decision-making power, which in turn erodes their autonomy, we consider a strong argument could be made that the principles outlined in Potter extend to non-physical DFSV behaviours.
This position is supported by Professor Heather Douglas of Melbourne Law School who recently spoke with the ABC about the decision of Potter. Professor Douglas noted that some of the most damaging DFSV is non-physical and that this type of abuse does impact the victim-survivor’s bodily autonomy.6
It is also worth noting the High Court’s recognition that, in Potter, the complaint’s secret recording was justified, as there was a real risk of the complainant resuming a relationship with the appellant, particularly in circumstances where she is a mother of two young children, has various health issues and a "limited support network”. 7 This serves as important acknowledgment of the difficulty that victim-survivors face in leaving abusive relationships, particularly if their autonomy has been eroded and they are reliant on the user of violence.8 It also acknowledges how common it can be for victim-survivors to return to the relationship, even after separation.
As our understanding of the insidious nature of DFSV continues to evolve and acknowledging the evidentiary challenges victim-survivors face when trying to ‘prove’ abuse that generally occurs behind closed doors, Potter offers a significant step forward for access to justice for victim-survivors of DFSV.
As Queensland and other jurisdictions continue to confront evidentiary challenges in DFSV matters, Potter provides a principled foundation for broader, trauma‑informed application to better support victim‑survivors seeking safety and justice.
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1Surveillance Devices Act 2016 (SA) s 4(2)(a)(ii).
2Potter (a Pseudonym) v the King [2026] HCA 25, [55].
3Invasion of Privacy Act 1971 (Qld) s 45(1).
4Invasion of Privacy Act 1971(Qld) s 45(2)(c)(iii).
5 Queensland Government, ‘What is domestic and family violence?’ (Web Page, 16 December 2024) <https://www.qld.gov.au/communi...;.
6 Patrick Thomas, ‘High Court finds secret recording can be used as evidence in DV case’, ABC (Web page, 6 August 2026) <https://www.abc.net.au/news/20...;.
7Potter (a Pseudonym) v the King [2026] HCA 25, [57].
8 Approximately 70% of Australian women in 2021-22 who experienced DFSV by their current partner while living together had never separated and about 46% of these women did not want to leave their current partner. See Australian Institute of Health and Welfare, ‘Intimate partner violence’, Family, domestic and sexual violence (Web Page, 24 February 2026) <https://www.aihw.gov.au/family...;.