Roberts-Smith v Fairfax Media Publications Pty Ltd (Admission of Recording)

This Full Court ruling was about a specific evidence dispute inside a much larger proceeding. Ben Roberts-Smith brought a reopening application in his appeal. On the first day of that hearing, the respondents objected to the tender of a recording of a telephone conversation between Mr McKenzie and Person 17.

The objection was made under sections 135 and 138 of the Evidence Act 1995 (Cth). The Court overruled the objection at the hearing, admitted the recording, and later published reasons. So the judgment is not the broader appeal decision and it is not a final ruling on the alleged misconduct raised by the recording. It is a reasons judgment about admissibility.

The recording itself was an 85-second excerpt from what appeared to be a longer conversation. It had been sent anonymously to the appellant's solicitors on 15 March 2025 by an email signed off with the words "All the best". The respondents argued that the recording may have been edited, that it was incomplete, and that its path into the litigation was suspicious and potentially unlawful.

The Court had to decide whether the recording should be excluded under section 135 or section 138 of the Evidence Act.

Under section 135, the issue was whether the recording's probative value was substantially outweighed by the danger of unfair prejudice. The respondents said the recording had limited value because it was only a short excerpt, may have been edited, and came from an anonymous source. They also pointed to the fact that Person 17 was not available for cross-examination.

Under section 138, the issue was different. The respondents argued that Person 17 most likely made the recording in Queensland and at some point communicated it to another person. They said that communication was unlawful under section 45 of the Invasion of Privacy Act 1971 (Qld), which generally makes it an offence for a party to a private conversation who recorded it using a listening device to later communicate the record to another person, subject to exceptions.

The Court therefore had to decide whether the recording should be excluded because of unfair prejudice, and whether it should be excluded because it may have been obtained or communicated in contravention of Australian law.

The Court said that for section 135 purposes, the recording's probative value had to be taken at its highest. It relied on the High Court's approach in IMM v The Queen and said there was no relevant distinction between assessing probative value under section 137 and section 135(a) in this respect.

That mattered because the respondents had attacked the recording's value on factual grounds. They said it was only an 85-second excerpt, may have been edited, and came through an anonymous channel. But the Court said those submissions had to be disregarded when assessing probative value for the balancing exercise under section 135.

Viewed at its highest, the recording may suggest that Mr McKenzie accessed the appellant's legally privileged material and acted unethically. The Court expressly said it was not finding that the recording proved this. It was only saying that the recording might do so for the purpose of an evidentiary ruling. On that basis, the Court assessed the recording's probative value as lying in the middle range.

The Court then turned to unfair prejudice. It assumed, without deciding, that unfair prejudice under section 135(a) could include procedural prejudice. Even on that assumption, it found no procedural unfairness of significance. The recording was of Mr McKenzie himself, so he was able to give evidence about it and had in fact affirmed an affidavit. The appellant also did not rely on anything said by Person 17 during the recording to advance his case, so her absence for cross-examination was not procedurally significant.

As to substantive unfair prejudice, the Court acknowledged the respondents' criticisms of the recording. But it said it was not necessary to form concluded views about those matters at the admissibility stage. Because this was not a jury trial, there was no risk that the Court would ignore the alleged deficiencies. Those matters, if established, would go to weight rather than admissibility. The Court therefore held that the recording would not result in unfair prejudice, and certainly not unfair prejudice substantially outweighing its probative value.

Section 138 deals with evidence obtained improperly or in contravention of Australian law. The respondents argued that Person 17 made the recording in Queensland, most likely using her phone, and must at some stage have communicated it to another person. The Court accepted that submission on the balance of probabilities. It said other possibilities existed, such as a telephone intercept or someone else gaining surreptitious access to Person 17's phone, but those possibilities were unlikely.

The Court therefore accepted that Person 17 made the recording in Queensland and at some point communicated it to at least one other person. The respondents said that communication engaged section 45 of the Invasion of Privacy Act 1971 (Qld). The appellant argued that the exception for a communication made in the course of legal proceedings applied. The Court found it convenient to assume in the respondents' favour that the exception did not apply and that Person 17 did commit the offence in section 45(1).

Even on that assumption, the Court still did not exclude the evidence. It worked through the factors in section 138(3). First, the recording's probative value, taken at its highest, lay in the middle range, which favoured admission. Secondly, the recording was the central evidence in the appellant's application, which also favoured admission.

The Court then considered the nature of the offence and the nature of the allegation raised by the recording. On one side, the hypothesised offence was an indictable privacy offence carrying a maximum penalty of 40 penalty units or two years imprisonment. On the other side, the allegation raised by the appellant was grave, namely that there had been a mistrial because of misconduct by Mr McKenzie in accessing privileged information. The Court said these considerations pulled in opposite directions, but the latter predominated, so this factor also favoured admission.

The Court accepted that, on the respondents' hypothesis, the communication was objectively very serious, deliberate, and inconsistent with Mr McKenzie's right to privacy under article 17 of the International Covenant on Civil and Political Rights. Those factors favoured exclusion. The Court found the factor about likely other proceedings neutral because there was no evidence on that point. It also found the factor about obtaining the evidence lawfully by other means neutral because it was unclear whether Person 17 could have given useful direct evidence.

After weighing all of those matters, the Court held that the desirability of admitting the recording outweighed the undesirability of admitting evidence obtained in that way. It therefore declined to exclude the recording under section 138. It added that if Person 17 had not shared the recording illegally, section 138 would not apply anyway. In either case, the result was the same: the recording and derivative versions were admissible.

The judgment is useful because it shows the kinds of details a court will examine when a recording appears late in a dispute.

First, the Court looked at the form of the evidence. This was not a full conversation but an 85-second excerpt from a longer call. The possibility of editing and the lack of a complete conversation were both raised.

Secondly, the Court looked at the source and transmission path. The recording was sent anonymously to the appellant's solicitors on 15 March 2025. The sign-off in the email, "All the best", was treated as capable of supporting a weak inference that the sender wanted to assist the appellant and harm Mr McKenzie.

Thirdly, the Court looked at who could respond to the evidence. Because the recording was of Mr McKenzie himself, he could give evidence about it and did so by affidavit. That reduced procedural unfairness concerns.

Fourthly, the Court looked at the seriousness of the allegation the recording was said to support. The recording was not treated as merely peripheral material. It was central to the reopening application and was said to raise a grave allegation involving access to privileged material and possible miscarriage of justice.

For businesses, these are practical evidence-handling points. If a recording exists, courts may care about completeness, editing, metadata, chain of custody, who handled it, when it was sent, and whether the people involved can explain the context. Those issues may not always decide admissibility, but they can strongly affect how persuasive the evidence becomes.

Businesses should read this case carefully and narrowly. It is not authority for the idea that secret recordings are acceptable, or that privacy laws can be ignored if the content seems important. The Court was prepared to assume the opposite, namely that the recording had been communicated unlawfully. The point is that admissibility is a separate balancing exercise.

That creates a real operational risk for employers and managers. An employee, contractor or third party may think they are helping by recording a conversation or forwarding a file. But the act of sharing the recording may itself create legal exposure under state law. At the same time, if the recording later becomes central to a serious allegation, a court may still admit it. So the business can end up dealing with both privacy risk and litigation risk at once.

In practice, businesses should have clear internal rules about when calls or meetings may be recorded, who can approve recording, where recordings are stored, who can access them, and when legal advice is required before disclosure. Businesses should also train staff not to use self-help tactics in disputes, especially where privileged information, disciplinary issues or active proceedings are involved.

If a business receives a recording from an unknown or informal source, it should treat the file as sensitive evidence rather than ordinary correspondence. Questions about legality, authenticity, editing, confidentiality and privilege can arise immediately. Early legal advice can help avoid compounding the problem by mishandling the material.

The judgment records that the hearing took place on 1 and 2 May 2025. The judgment itself is dated 1 May 2025, and the reasons were published on 16 May 2025. The ruling came from the Full Court of the Federal Court of Australia, constituted by Perram, Katzmann and Kennett JJ.

The page status remains review because the admissibility ruling is clear, but the broader factual background of the larger litigation is not fully set out here. This page therefore focuses on what the Court actually decided about the recording and avoids treating the ruling as a final determination of the underlying allegation.