Sensitive Material

The internet and social media have made accessing records and communications relatively easy. However, if you are involved in family law proceedings, it is crucial to obtain legal advice prior to accessing or seeking to rely on digital evidence that has not been properly obtained. The state and commonwealth governments have passed several pieces of legislation in relation to hacking and spying or surveillance and there are consequences for handling sensitive material without permission. Being a party to a family law dispute does not exempt you from complying with this legislation. This article outlines the rules of evidence as they apply to sensitive material.

What is sensitive material?

Sensitive material can come in various forms and can consist of the following:

• Hard copy documents, which have been taken from the former matrimonial home or the family business;
• Electronic documents uploaded from a family computer, work computer or another device in the former matrimonial home;
• Electronic documents or records obtained by gaining access to the other party’s email or social media accounts without a password;
• Obtaining documents by accessing the other party’s cloud storage, such as iCloud or OneDrive;
• Recordings of audio or video conversations taken with or without the knowledge of those being recorded.

Criminal offences 

Under section 478.1 of the Commonwealth Criminal Code Act 1995, it is an offence to intentionally cause unauthorised access to or modification of restricted data which is restricted by an access control system, such as a password.

Under section 478.3 of the Criminal Code Act 1995, it is an offence to possess “control data” with the intention to commit or facilitate a hacking offence.

Solicitors must not use confidential sensitive material

Australian solicitors are bound by rules and obligations for their professional conduct and held to a standard of ethical conduct. If you have provided your solicitor with sensitive material that would otherwise be confidential or if material is inadvertently disclosed to a solicitor by another solicitor or person and the material is sensitive material that is known or reasonably suspected to be confidential, then unless otherwise permitted or compelled by law, the solicitor must not use the material and must do the following:

• return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent, and
• notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.

If an Australian solicitor who reads part or all the confidential material before becoming aware of its confidential status must:

• notify the opposing solicitor or the other person immediately, and
• not read any more of the material.

If an Australian solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.

Sensitive material may not be admissible

Aside from opening yourself or your solicitor up to the potentially criminal or ethical consequences of illegitimately accessing sensitive material, this material may not be admissible in court. When you are seeking to rely on sensitive material as evidence, you must consider the manner in which the recording or document was obtained and the probative value of the document or recording. The probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Section 138 of the Evidence Act 1995 establishes that if evidence that was obtained was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law, then it must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the manner that the evidence was obtained. When the court is to consider the above, they must take into account the following considerations:

• The probative value of the evidence; and
• The importance of the evidence to the proceeding; and
• The nature of the relevant offence, cause of action or defence and the nature of the proceeding; and
• The seriousness of the impropriety or contravention; and
• Whether the impropriety or contravention was deliberate or reckless; and
• Whether the impropriety or contravention was contrary to or inconsistent with a right of a person under the International Covenant on Civil and Political Rights; and
• Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention; and
• The difficulty of obtaining the evidence without impropriety or contraventions of an Australian Law.

Should you illegitimately obtain material in a manner contrary to Australian law, you are likely to hurt your case and put your solicitor in a position where they may not be able to act for you.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.