The District Court excluded all video evidence of anonymous online chat interactions recorded by an overseas participant, ruling that the recordings were obtained improperly or in contravention of Australian law (likely the Surveillance Devices Act 2007 (NSW)) and that the desirability of admission did not outweigh the undesirability of admitting improperly obtained evidence under s 138 of the Evidence Act 1995 (Cth). The substantive reasoning is subject to a non-publication order, but the ruling confirms that s 138 can operate to exclude evidence obtained by private individuals acting extraterritorially where Australian surveillance device laws are engaged, and that the platform's terms of use and privacy policy were relevant considerations. The case leaves unresolved the precise boundaries of the extraterritorial application of the SD Act to recordings made by foreign nationals on international platforms.
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