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Poland v Hedley

Poland v Hedley

Case [2019] WASC 403 8 November 2019

Admissibility of Evidence

Publishing or Communicating a Private Conversation

Qualified Privilege

Evidence Law

Media & Entertainment Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   POLAND -v- HEDLEY [2019] WASC 403
CORAM:   LE MIERE J
HEARD:   26 SEPTEMBER & 2 OCTOBER 2019
DELIVERED          :   8 NOVEMBER 2019
FILE NO/S:   CIV 1370 of 2019
BETWEEN:   GREGORY DAVID POLAND
Plaintiff

AND

KATE HEDLEY
First Defendant

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD
Second Defendant

Catchwords:

Evidence - Admissibility - Illegally or improperly obtained evidence - Surveillance devices - Audio recording - Private conversation

Evidence - Admissibility - Audio recording - Chain of custody evidence - True copy - Authenticity, provenance and integrity

Evidence - Admissibility - Inadvertent disclosure of identity of confidential source - Withdrawal of affidavit to remedy inadvertent disclosure - Whether it is unfair to adduce further evidence - Whether statement of defence referring to the contents of a private conversation is knowingly publishing or communicating that private conversation - Protection of lawful interests defence

Media and communications - Offences - Publishing or communicating a private conversation - Exceptions - Qualified privilege - Substantial truth

Legislation:

Evidence Act 1995 (Cth), s 138
Rules of the supreme Court 1971 (WA), O 37 r 6
Surveillance Devices Act 1998 (WA), s 5, s 9, s 26

Result:

Plaintiff's application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Mr A Tharby
First Defendant	:	Mr M C Goldblatt
Second Defendant	:	Mr M C Goldblatt

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	Carmel Galati
Second Defendant	:	Carmel Galati

Case(s) referred to in decision(s):

Batistatos v Roads and Traffic Authority (2006) 226 CLR 256
Chappell v Griffin Coal Mining Company Ltd [2016] FCA 1248
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S)
Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) (2011) 193 FCR 195
Moti v The Queen (2011) 245 CLR 456
Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246
Rogers v The Queen (1994) 181 CLR 251

LE MIERE J:

Summary

The plaintiff was, until 27 February 2019, the Deputy Chair of the Peel Development Commission (PDC). The first defendant (Ms Hedley) is the Deputy Editor of WAtoday, an internet news business conducted by the second defendant (Fairfax Digital). Mr Hondros is a journalist employed by Fairfax Digital as WAtoday's political reporter.
On 27 February 2019 Ms Hedley and Mr Hondros wrote, and the defendants made available for download, on the WAtoday website two versions of an article entitled 'Big Donor Quits Board after Plan to Dump Millions of Tons of Toxic Soil in Peel Region Revealed'. On 28 February 2019, Ms Hedley and Mr Hondros wrote, and the defendants made available for download, on the WAtoday website two versions of an article entitled 'Political Donor: Labor's lobster plan was mine, but Minister botched it'. The plaintiff says that both articles defame him.
Each article is based on things the plaintiff allegedly said at a meeting in January 2019 with a local business owner. In his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Poland v Hedley

Details

AGLC: Poland v Hedley [2019] WASC 403
Case: [2019] WASC 403
Decision Date: 8 NOVEMBER 2019

CaseChat Overview and Summary

Poland v Hedley is a case before the court involving the admissibility of evidence obtained through an audio recording of a private conversation. The dispute centres on whether the evidence was unlawfully or improperly obtained and if it should be excluded from the proceedings due to breaches in the chain of custody, authenticity, or inadvertent disclosure of a confidential source's identity. The court was required to determine whether the evidence obtained from the audio recording could be admitted, considering the circumstances under which it was obtained, the chain of custody, and any inadvertent disclosures made during the proceedings.

The primary legal issues addressed by the court were the admissibility of the audio recording as evidence, the integrity and authenticity of the recording, and the impact of any inadvertent disclosure of the identity of a confidential source. The court considered whether the recording was obtained lawfully and whether the chain of custody was adequately maintained to ensure the evidence's integrity. Furthermore, the court had to evaluate whether the inadvertent disclosure of the confidential source's identity during the proceedings warranted the exclusion of the evidence, and if the protection of lawful interests defence could apply to the inadvertent disclosure.

The court found that the evidence obtained from the audio recording was admissible despite the inadvertent disclosure of the confidential source's identity. The court determined that the inadvertent disclosure did not render the evidence inadmissible, as the withdrawal of the affidavit to remedy the disclosure was sufficient. The court also found that the statement of defence referring to the contents of the private conversation did not amount to knowingly publishing or communicating that conversation. The court concluded that the protection of lawful interests defence could apply, and the substantial truth exception allowed for the admission of the evidence. The court's decision was based on the balance between the right to a fair trial and the need to protect confidential sources in certain circumstances.

The court ordered that the audio recording evidence be admitted into the proceedings, subject to the conditions set forth in the judgment. The court also directed the parties to take steps to ensure the protection of the confidential source's identity, as appropriate. The court's decision in this case provides guidance on the admissibility of evidence obtained through audio recordings, the impact of inadvertent disclosures, and the application of the protection of lawful interests defence in the context of private conversations.

Orders