NSW Police Propose ‘Domestic Violence Diary’ App for Complainants to Record and Log Abuse

The NSW Police Force has recently unveiled an app they say is designed to assist victims to combat domestic violence by recording and logging alleged abuse, but there are concerns about whether this would make any real difference as well as the legality of such unauthorise covert recordings.

The ‘DV Diary’ app

The app, which is still a work in progress, is intended as an electronic diary whereby victims can log and document incidents of domestic violence by way of making notes, or safely storing videos and voice recordings on their phone where the perpetrator is unlikely to find them. 

The idea has had a reasonable amount of positive feedback, particularly in terms of its potential usefulness for documenting coercive control, which was made a standalone offence in New South Wales last year. 

Coercive control is a form of emotional and psychological abuse – it is not usually characterised by bruises, scratches, broken bones, and other evidence of physical harm, so it can be harder to detect, but behaviour that’s considered ‘coercive control’ can be an early indicator that a relationship may turn violent. And so, it’s a good idea for victims to have a way to record incidents, right? 

Well, yes. But legal professionals are now warning that there is a long way to go and numerous things to consider within the context of justice before the app should be marketed and made available to the general public. 

A false sense of security

One of the concerns with the the app is it could give complainants a false sense of security.

That is, if complainants become over-reliant on the app, they could misconceive its ability to protect them within a violent relationship and miss or avoid moments when it would be wiser or more appropriate to go to police, and consider taking out an Apprehended Domestic Violence Order  (ADVO) against the alleged perpetrator. 

This would give victims greater legal protection, officially start the legal process, should the complainant wish to press charges. Also, in many cases, it would also enable access to other services, such as safe emergency housing, legal advice and counselling, should it be immediately required. 

But other questions have arisen around the legality of using the app to record another person without their knowledge, too. 

The offence of recording someone without their permission 

Section 7 of the Surveillance Devices Act 2007 makes it an offence punishable by up to five years’ imprisonment and/or $55,000 for a person to knowingly install, use or cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, or to record a private conversation to which the person is a party.

A ‘listening device’ is defined by the Act as “any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device…”. 

Under the legislation, a ‘private conversation’ is defined “as any words spoken by one person to another person/s in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only by themselves, or by themselves and by some other person who has the consent, express or implied, of all of those persons to do so. 

It does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.”

However, there are a range of exceptions to the prohibition contained in section 7, which include:

• the use of a listening device with a warrant or other legal authorisation, or to record the refusal of a police interview, or to locate and retrieve the device, or where it is used by police to record the operation of a Taser, or on police body-worn video equipment, and
• the unintentional hearing of a private conversation by means of a listening device.

In addition, it is not an offence to record a private conversation to which a person is a party if, all of the principal parties to the conversation consent, expressly or impliedly, or a principal party consents and the recording of the conversation, and if_, the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

‘Lawful interests’ of recorded conversations

There is a provision within the law which states that it is not an offence to record if it is reasonably necessary for the protection of the lawful interests of that principal party, an exception for which there has been case law in 2020. 

A ‘principal party’ is defined as “a person by or to whom words are spoken in the course of the conversation”.

Whether a recording is considered ‘reasonably necessary’ or not will depend on the circumstances of each case.

For example, in the case of Sepulveda v R [2006] NSWCCA 379, the complainant in a historical sexual assault case had made a secret recording of a conversation with the alleged offender in order to bring the alleged offender to justice for criminal acts committed against the complainant and his brothers.

The complainant tried to obtain money from the alleged offender in exchange for the recording.

The court determined that recording was illegal because it was not ‘reasonably necessary’ to make the recording because the complainant could have sought help from police. Police could then have applied for a warrant under the law. This would’ve allowed the conversation to be recorded under a warrant, which would otherwise have been lawful. 

When the case reached the NSW Court of Criminal Appeal, the court determined that for a ‘exception’ under the law to apply, the secret recording had to be not only ‘reasonable’, but also ‘necessary’, and ‘lawful’.  

It’s interesting to note, that in many documented stories, in research studies for example, domestic violence victims who have been recorded either unknowingly or knowingly by their partners or ex-partners have described the experience as ‘intimidating.’ 

Intimidation is an offence under the Crimes (Domestic and Personal Violence) Act 2007, which states that “a person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.” The maximum penalty is imprisonment for 5 years or 50 penalty units, or both.

Of course, courts won’t always take the same view as was concluded in Sepulveda v R [2006] NSWCCA 379, because, as mentioned above, each case will be judged on its own merits and mitigating circumstances. 

‘Lawful interest’ is an evaluative judgement based on the facts of the matter in court, alongside the charges which are being prosecuted. 

Potential for Issues to arise with respect to tendency evidence and self-incrimination 

In any case, complainants of domestic violence who have recorded incidents of violence via the app, which they hope to tender as evidence in police interviews or any other legal proceedings should seek professional legal advice, bearing in mind: 

1. Firstly, whether their own documented evidence could be used as ‘tendency’ evidence against them. That is, used as evidence to demonstrate they have a tendency to disregard the rights of others under the law. 

While Section 97 of the Evidence Act 1995 (NSW) stipulates that this sort of evidence cannot be admitted unless the relevant party planning to do so gives written notice of its intention to submit it as evidence the court must then decide, whether it can be used, and will do so in circumstances where ‘the probative value of the evidence  (that is, the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue) substantially outweighs any prejudicial effect it may have on the defendant.’

2. Secondly, whether a complainant’s own evidence could be used against them, by the alleged perpetrator to protect their own legal rights 

Under the law, specifically the Evidence Act, Section 128 defines ‘self-incrimination’ in other proceedings.

Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness–

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

The privilege against self-incrimination allows a person to refuse to answer any question, or produce any document or thing, if doing so would tend to expose the person to conviction for a crime. A person can apply to invoke this section of the Act, but again, courts make decisions based on individual cases, depending on the factors involved. 

However, overall, collecting evidence of domestic violence via the app and then seeking to use that evidence in a court of law, is not straightforward. And hoping to do so, could lead to longer legal proceedings, which may not necessarily be in the interests of swift justice for victims who want to protect their own safety as easily and effectively as possible.