The High Court in 2026: the criminal-law decisions that matter

The year in short.

The High Court sits at the top of the Australian court system, and its criminal decisions bind every court below it. A single judgment can change the way a whole category of case is charged, tried and sentenced. 2026 has produced several. Two came only this week. Others, delivered earlier in the year, are already being felt in trials in the District and Supreme Courts.

This feature works through four of them. The first pair, decided on 5 August, deal with secret recordings made by victims. The second concerns tendency evidence, the kind of proof that a person has a sexual interest and acts on it. The third is the end of one of the longest-running corruption prosecutions in the country, and it clarifies how conspiracy charges against public officials can be framed. The fourth is not yet decided, but it is worth watching, because it goes to how drug-induced mental illness affects a sentence. Each section explains what the Court held and what it means on the ground.

1. Secret recordings by victims: Potter v The King and The King v HCZ

The headline decisions of the week are Potter (a pseudonym) v The King [2026] HCA 25 and The King v HCZ [2026] HCA 24, both handed down on 5 August 2026. They answer a question that comes up in family and sexual violence cases more and more often: can a complainant secretly record their attacker admitting the offence, and then use that recording in court?

In Potter, a man was convicted in South Australia of raping his wife while she slept. About a month before the last offence, she recorded a conversation on her phone in which she confronted him and he admitted what he had done. She said she made the recording to convince herself never to go back to him. He argued the recording was unlawful and should not have gone before the jury.

Recording a private conversation without consent is, as a starting point, an offence under the surveillance devices legislation in each state and territory. In South Australia the relevant Act is the Surveillance Devices Act 2016 (SA). But that legislation carries an exception. A recording is not unlawful where it is reasonably necessary for the protection of the lawful interests of the person who made it. The High Court held that the wife's recording fell within that exception. Her interest in her own bodily safety, and in not being subjected to a serious personal violence offence, was an interest deserving of the strongest protection. The recording was lawfully made and properly admitted, and the appeal was dismissed. HCZ, decided the same day, dealt with the same field in a domestic violence setting.

What does this mean in practice? For complainants in family and sexual violence matters, it confirms that a covert recording of an admission can be lawful and can be used, where making it was reasonably necessary to protect the person's own safety. For the defence, it does not open the door to every recording. The exception is tied to the exact words of the relevant Act, and to the facts of why the recording was made. A recording made for some other purpose, or one that goes beyond what was reasonably necessary, can still be excluded. The lawful basis for each recording has to be tested one at a time. These recordings sit alongside the coercive control and contravention offences we cover in our pages on coercive control and contravening an AVO, and they are becoming a common feature of the brief in these cases.

2. Tendency evidence: The King v AR [2026] HCA 10

Tendency evidence is proof that a person has a tendency to act in a particular way, or to have a particular state of mind, used to make it more likely they committed the offence charged. It is powerful, and it is tightly controlled, because a jury can give it more weight than it deserves. In sexual cases it usually takes the form of evidence that the accused has a sexual interest in the complainant and has acted on it before.

In The King v AR [2026] HCA 10, decided on 8 April 2026, a man was tried in the District Court of New South Wales on seven sexual offences against one complainant, arising from three occasions in 2020. The Crown case was that the evidence showed a tendency to have a sexual interest in that complainant, and to act on it by committing a particular act against her when she had fallen asleep. The New South Wales Court of Criminal Appeal took issue with how the tendency had been framed and set the convictions aside. The High Court, by majority, disagreed and restored the convictions. The majority held that framing the tendency in that way, and using the evidence of the charged acts themselves to prove it, was consistent with the nature of tendency evidence.

The effect is to make tendency evidence easier for the Crown to run in a single-complainant sexual case. The prosecution can point to the charged acts, say they show a specific sexual interest in that complainant and a way of acting on it, and invite the jury to reason across the counts. For the defence, the decision does not remove the controls. The evidence still has to have significant probative value, and the value still has to outweigh the danger of unfair prejudice. The argument shifts to those questions, and to how the jury is directed about using the evidence. Getting the directions right, and keeping the reasoning within proper limits, is where these cases are now won and lost. We deal with the appeal principles behind decisions like this in our note on appeals and the correction of error.

3. Conspiracy and public office: Obeid v The King [2026] HCA 1

On 4 February 2026 the High Court dismissed the appeals in Obeid v The King [2026] HCA 1, bringing to an end one of the longest corruption prosecutions in the country. Edward Obeid, his son Moses Obeid, and former New South Wales minister Ian Macdonald had been convicted of conspiracy to commit misconduct in public office. The Crown case was that the minister misused his position to grant a coal exploration licence over land connected to the Obeid family, for a large improper benefit. The High Court upheld the convictions.

The lasting point from the case is about how a conspiracy of this kind is charged. The Court confirmed that the indictment does not have to spell out particular overt acts of misconduct. It is enough that the people charged agreed to a course of conduct which, taken together, would meet the elements of the underlying offence of misconduct in public office. That offence is committed when a public official wilfully misuses their office, in a way that is serious and without reasonable excuse.

For anyone advising in the white-collar and public-integrity space, this matters. It confirms that prosecutors have real latitude in how they frame an agreement, and that a defence built on gaps in the particular acts alleged will not, on its own, defeat a properly pleaded conspiracy. The focus for the defence moves to the agreement itself: whether it existed, what its scope was, and whether each accused was truly party to it. These are fact-heavy cases that turn on documents and inference, and they sit near the fraud and dishonesty offences we cover in our page on fraud in NSW.

4. A case to watch: drug-induced psychosis and moral culpability

The last matter is not yet decided, and that is the point of including it. A case is before the High Court that raises how drug-induced psychosis should affect a sentence. It comes up from a Queensland Court of Appeal decision, and it goes to a question that arises often in serious violence matters where the offender was mentally unwell at the time.

The general rule is settled. Self-induced intoxication does not reduce a person's moral culpability. But mental illness can. The hard cases sit in between: where earlier drug use has caused a psychotic illness that is still present when there is no drug in the person's system, an enduring illness rather than a passing high. The question the Court is being asked to work through is when such an illness reduces moral culpability, and how much the person's foreknowledge matters, that is, whether they knew or ought to have known that their drug use could bring on a lasting illness. There is also a question about who has to prove what. Until the Court delivers its reasons, the law in this area should be treated as unsettled, and any submission on it made with care. The interaction between mental health and sentencing is something we deal with regularly, and we set out the diversion pathway in our note on mental health diversion under section 14.

What these decisions mean if you are facing charges.

Read together, the 2026 decisions tighten the Crown's position on evidence and loosen it on how some charges are framed. Secret recordings that once looked unlawful may now come in. Tendency evidence drawn from the charged acts is harder to keep out. Conspiracy charges against people in public office can be pleaded broadly. None of this removes the defence. It changes where the work is done.

In a case with a covert recording, the first task is to test the lawful basis for it against the words of the surveillance devices Act in the relevant state, and to look hard at why and how it was made. In a case with tendency evidence, the fight is over probative value, unfair prejudice, and the directions to the jury. In a conspiracy case, it is over the agreement and each person's part in it. And in a sentencing case involving mental illness, the medical evidence and the question of foreknowledge have to be built properly, and kept in step with a High Court that may be about to speak on the point.

The steady advice does not change with any of these decisions. Do not speak to police about the allegation before you have advice. Do not plead to anything before the brief is read. And get advice early, because in each of these areas the difference between a good and a poor outcome is made in the detail, well before the hearing.

Frequently asked.

Can a secret recording be used as evidence in a criminal case in Australia?

Sometimes. Recording a private conversation without consent is generally an offence, but the surveillance devices legislation contains an exception where the recording is reasonably necessary to protect the lawful interests of the person making it. In Potter (a pseudonym) v The King [2026] HCA 25 the High Court held that a victim's covert recording of an admission fell within that exception and was admissible. Whether a particular recording is admissible depends on the words of the relevant Act and the facts.

What did the High Court decide about tendency evidence in 2026?

In The King v AR [2026] HCA 10 the High Court, by majority, restored child sexual offence convictions the NSW Court of Criminal Appeal had set aside. It held that a tendency to have a sexual interest in a particular complainant, and to act on it in a particular way, can be a proper tendency, and that the charged acts can be used to prove it. The decision makes tendency evidence easier for the Crown to run in a single-complainant case.

What is conspiracy to commit misconduct in public office?

It is a common law offence: an agreement between two or more people to commit misconduct in public office, which occurs when a public official wilfully misuses their position in a way that is serious and without reasonable excuse. In Obeid v The King [2026] HCA 1 the High Court dismissed the appeals and confirmed the convictions, holding that the indictment need not specify particular overt acts so long as the agreement meets the elements of the underlying offence.

Does drug-induced psychosis reduce a sentence?

It can, but the position is unsettled and a matter raising it is before the High Court. Self-induced intoxication does not reduce moral culpability. Where earlier drug use has caused an enduring mental illness, present even without any drug in the person's system, that illness can reduce moral culpability in the ordinary way. How much the person knew, or ought to have known, about the risk of a lasting illness is central.

Why do these High Court cases use pseudonyms like Potter, AR and HCZ?

In sexual offence and domestic violence cases the law restricts anything that could identify the complainant. Because the accused and complainant are often known to each other, naming the accused could identify the complainant, so the court uses a pseudonym for the accused while still publishing full reasons. The pseudonym has no bearing on the outcome.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 6 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. The cases discussed are reported by reference to the published reasons of the High Court of Australia. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

Primary sources: The King v AR [2026] HCA 10; Obeid v The King [2026] HCA 1; Potter (a pseudonym) v The King [2026] HCA 25 on JADE; The King v HCZ [2026] HCA 24 on JADE; High Court of Australia, Recent Judgments.

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