Citation: R v Lardner (No 8) [2026] NSWSC 934
Court: Supreme Court of New South Wales
Date: 5 August 2026
Judge(s): Campbell J
Background
The accused stood trial for the murder of the deceased following a fatal stabbing. The central issue at trial was whether the Crown could disprove self-defence beyond reasonable doubt. Direct evidence from eyewitnesses was sparse, with several witnesses giving unhelpful or evasive accounts in court.
A key witness, who resided next door to the property where the altercation occurred, testified that she had seen and heard nothing. However, a clandestine audio-visual recording made on a mobile phone captured her making statements strongly inconsistent with that evidence, including repeated references to the accused having stabbed the deceased.
The recording was made by the witness's neighbour, whose son had become the subject of community rumours suggesting police intended to charge him with the murder. Believing her son was in danger of being wrongly charged, she visited the witness's home with a concealed phone and recorded their conversation without consent. She later acknowledged in court that she knew recording the conversation was wrong, though she said she had not known the maximum penalty was five years' imprisonment.
Legal Issues
- Whether the clandestine recording was made in contravention of s 7(1) of the Surveillance Devices Act 2007 (NSW), or whether it fell within the exception in s 7(3)(b)(i) as reasonably necessary to protect the maker's lawful interests
- If the recording was illegally obtained, whether it should be excluded under s 138 of the Evidence Act 1995 (NSW), having regard to the desirability of admitting the evidence weighed against the circumstances of its obtaining
Decision
Issue 1: Whether the recording was made illegally
Section 7(1) of the Surveillance Devices Act prohibits a person from knowingly using a listening device to record a private conversation to which they are a party. Section 7(3)(b)(i) provides an exception where a principal party to the conversation consents and the recording is reasonably necessary to protect their lawful interests. Campbell J considered the construction of this provision as set out in Sepulveda v R (2006) and confirmed in DW v R (2014), both of which interpreted the identically worded predecessor provision in the now-repealed Listening Devices Act 1984 (NSW).
Applying that construction, his Honour was not satisfied that the recording fell within the s 7(3)(b)(i) exception. The maker's son was not in fact under active police suspicion and had a strong alibi. The belief that the recording was necessary to protect her son's lawful interests was characterised as misguided. Accordingly, the recording was made in contravention of s 7(1).
Issue 2: Whether the evidence should be excluded under s 138
Section 138 of the Evidence Act requires a court to exclude improperly or illegally obtained evidence unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. Campbell J worked through the relevant considerations.
Factors pointing toward exclusion included that the contravention was deliberate and planned, and that it was unlikely any prosecution would follow. Had the maker approached police, a warrant under the Surveillance Devices Act could plausibly have been obtained given eyewitness reluctance to cooperate. Factors pointing toward admission included that the contravention was committed by a private individual acting on a misguided but genuine concern for her son, not by a law enforcement or prosecuting authority. The evidence was highly significant in a trial otherwise lacking direct testimonial evidence, where other eyewitnesses had largely closed ranks. On balance, Campbell J held the desirability of admitting the evidence outweighed the undesirability of doing so, and ruled it admissible.
Orders Made
[Orders not located in provided text]
Key Takeaways
- The Supreme Court confirmed that the exception in s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW), permitting clandestine recording where reasonably necessary to protect the maker's lawful interests, is construed consistently with the identical provision in the repealed Listening Devices Act 1984 (NSW) as interpreted in Sepulveda v R and DW v R.
- A mistaken belief that recording was necessary to protect a family member from wrongful prosecution did not satisfy s 7(3)(b)(i) where no active investigation of that person existed and they held a strong alibi.
- Under s 138 of the Evidence Act 1995 (NSW), the fact that an illegal recording was made by a private individual rather than a government authority is a relevant factor that reduces the gravity of the contravention and weighs in favour of admission.
- The relative scarcity of direct eyewitness evidence in a murder trial, combined with apparent reluctance among witnesses to give a full account, can bear significantly on the s 138 balancing exercise.
- Campbell J noted a post-ruling High Court decision in Potter (A Pseudonym) v The King [2026] HCA 25 concerning a cognate South Australian provision but concluded it did not require further submissions, as the High Court proceeded on the basis that the existing NSW authorities were correctly decided.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 60, 138
- Surveillance Devices Act 2007 (NSW), s 7
Cases
- DW v R (2014) 239 A Crim R 192; [2014] NSWCCA 28
- Sepulveda v R (2006) 167 A Crim R 108; [2006] NSWCCA 379
- Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153