A hearing began Monday to determine whether a secretly recorded conversation on an iPod will be admissible in the retrial of Curtis Vey and Angela Nicholson, who were convicted in 2016 for conspiring to murder their spouses.

Vey’s lawyer, Aaron Fox, told CTV Prince Albert on Wednesday that the recording was a private conversation between two people and neither of them consented to being recorded or to handing over the recording to the RCMP.

“A search warrant would have had to be obtained for RCMP to use the recording and there was never a warrant.”

In the original trial, court heard secret audio recordings in which Nicholson and Vey discussed a plan to kill Vey’s wife in a house fire and kill Nicholson’s husband by drugging him and then making him disappear.

Court heard that Brigitte Vey hid an iPod under the kitchen table at a farmhouse shared with Curtis Vey and secretly recorded her husband and Nicholson hatching the plan on July 1, 2013.

The Crown had contended these weren’t just the fantasies of lovers, but a detailed plot, while defence lawyers said the conversation was offensive and stupid, but not criminal because there was no intent to follow through.

Justice Georgina R. Jackson said in a written decision in August 2018 that Chief Justice Martel Popescul, who presided over the trial, erred in two ways that merit a new trial.

Popescul didn’t adequately charge the jury with respect to Vey’s defence that he didn’t have a genuine intention to commit murder, Jackson wrote. She also raised concerns over the use of circumstantial evidence.

A second issue was properly explaining the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt, Jackson wrote.