AW v Rayney
[2010] WASCA 161
•6 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AW -v- RAYNEY [2010] WASCA 161
CORAM: McLURE P
BUSS JA
NEWNES JA
HEARD: 20 APRIL 2010
DELIVERED : 6 AUGUST 2010
FILE NO/S: CACR 22 of 2010
BETWEEN: AW
Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
FILE NO/S :CACR 23 of 2010
BETWEEN :LLOYD PATRICK RAYNEY
Appellant
AND
AW
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE FLYNN
File No :SJA 1009 of 2010, SJA 1011 of 2010
Catchwords:
Privilege - Legal professional - Legal advice privilege - Litigation privilege - Dominant purpose test - Crime/fraud exception - The 'confidential communication' test
Procedural fairness - Magistrate permitted person claiming legal professional privilege to rely on affidavits and written submissions that were, in part, redacted - Redacted parts of affidavits and written submissions were known to the magistrate and the claimant but withheld from the party opposing the claim of privilege - Magistrate held private hearings with the claimant about the redactions from which the other party was excluded - Whether the party opposing the claim was denied procedural fairness
Privilege - Legal professional - Person claiming privilege covertly recorded conversations on digital dictaphones - Claimant made copies of the original recordings - Claimant deliberately threw out the dictaphones after making the copies - Whether privilege existed in relation to the originals - Whether privilege existed in relation to the copies
Covert recordings of conversations - Person making the recordings a party to the conversations - Whether recordings made in breach of s 5(1)(b) of the Surveillance Devices Act 1998 (WA) - Whether the use of a listening device was 'reasonably necessary for the protection of the lawful interests' of the person making the covert recordings within s 5(3)(d) of the Act
Privilege - Legal professional - Whether names of the parties to covertly recorded conversations and the dates on which the conversations occurred were privileged - Whether the disclosure of the names and the dates would reveal the content of a privileged communication
Appeal - Point not raised before the magistrate - Whether the party who did not raise the point below should be permitted to advance it as a new case on appeal
Legislation:
Criminal Investigation Act 2006 (WA), s 151
Surveillance Devices Act 1998 (WA), s 5, s 9Result:
CACR 22 of 2010
Appeal allowedCACR 23 of 2010
Appeal dismissedCategory: A
Representation:
CACR 22 of 2010
Counsel:
Appellant: Mr G T W Tannin SC & Ms D Scaddan
Respondent: Mr J D Allanson SC & Mr S Vandongen
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: D G Price & Co
CACR 23 of 2010
Counsel:
Appellant: Mr J D Allanson SC & Mr S Vandongen
Respondent: Mr G T W Tannin SC & Ms D Scaddan
Solicitors:
Appellant: D G Price & Co
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Adams v Anthony Bryant & Co Pty Ltd (1986) 15 FCR 513
Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167
Attorney-General (Northern Territory) v Kearney [1985] HCA 60; (1985) 158 CLR 500
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547
AW v Rayney [2009] WASC 250
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
Bailey v Director‑General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Balabel v Air India [1988] Ch 317
Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279
Bullivant v Attorney-General (Vic) [1901] AC 196
Candacal Pty Ltd v Industry Research & Development Board (2005) 223 ALR 284
Carbone v National Crime Authority [1994] 52 FCR 516
Carter v Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121
Chao v Chao [2008] NSWSC 584
China National Petroleum Corporation v Fenwick Elliott & Techint International Construction Co [2002] EWHC 60 (Ch)
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Commissioner of Taxation v Coombes [1999] FCA 842; (1999) 92 FCR 240
Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Deputy Commissioner of Taxation v Nicholls (No 3) [2009] FCA 785
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49
Findlay v State of Victoria [2009] VSCA 294
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Gunns Ltd v Marr [2008] VSC 464
Haj-ismail v The Minister for Immigration (No 2) (1982) 45 ALR 379
Harris Scarfe Ltd (receivers and managers appointed) (in liq) v Ernst & Young (2006) 204 FLR 165
Health & Life Care Ltd v Price Waterhouse (1997) 69 SASR 362
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 84 ALJR 31
Jefferson Ford Pty Ltd v Ford Motor Co of Australia Pty Ltd [2007] VSC 450
Latham v Latham [2008] Fam CA 877
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Menkens v Wintour [2007] 2 Qd R 40
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
National Crime Authority v S (1991) 29 FCR 203
National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648
Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275
Parkin v O'Sullivan [2009] FCA 1096
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357
Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279
Public Trustee v Alvaro [1995] SASC 5183
R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141
R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108
Rayney v AW [2009] WASCA 203
Re ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) [2008] FCA 964
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899; (2006) 203 FLR 1
Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335
Schreuder v Murray [No 2] [2009] WASCA 145
Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108
Southwark Water Co v Quick (1878) 3 QBD 315
State of New South Wales v Jackson [2007] NSWCA 279
Sugden v Sugden [2007] NSWCA 312; (2007) 70 NSWLR 301
Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 337
Telstra Corporation v Australis Media Holdings (Unreported, NSWSC, Library No 97001041, 10 February 1997)
The Queen v Bebic (Unreported, NSWCCA, 27 May 1982)
The Queen v Bell; Ex parte Lees (1980) 146 CLR 141
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
Trade Practices Commission v Sterling (1979) 36 FLR 244
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529
WorkCover Authority (NSW), (General Manager) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502
Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75
Table of Contents
McLure P's reasons.................................................................................................................. 9
Appellant's grounds 2 and 3The legal principles
Analysis
Appellant's grounds 4 and 6
Appellant's ground 5
The appellant's ground 1
Mr Rayney's appeal
Dominant purpose (ground 2(b))
Confidential communications (ground 2(c))
Consequence of original recording being in breach of SDA (ground 1)
Whether covert record reasonably necessary (ground 2(a))
Carr file note (ground 3)Conclusion
Buss JA's reasons.................................................................................................................... 27
The history of the litigation between the parties
The magistrate's decision on the matters heard on 18 and 19 November 2009
AW's grounds of appeal
AW's orders wanted
Mr Rayney's grounds of appeal
Mr Rayney's orders wanted
The organisation of the balance of these reasons
AW's ground of appeal no 1: general
AW's ground of appeal no 1: the statutory framework and applicable legal principlesAW's ground of appeal no 1: the information provided to AW
AW's ground of appeal no 1: the general nature and extent of the redactions
AW's ground of appeal no 1: its merits
AW's ground of appeal no 2: general
AW's ground of appeal no 2: the contents of the original recordings of which the Category 2 Files are copies
AW's ground of appeal no 2: the magistrate's findings and reasoning
AW's ground of appeal no 2: applicable legal principles
AW's ground of appeal no 2: its merits
AW's ground of appeal no 3: general
AW's ground of appeal no 3: the magistrate's findings and reasoning
AW's ground of appeal no 3: applicable legal principles
AW's ground of appeal no 3: its merits
AW's grounds of appeal nos 4 and 6: general
AW's grounds of appeal nos 4 and 6: the magistrate's reasons
AW's grounds of appeal nos 4 and 6: the decision in China National Petroleum
AW's grounds of appeal nos 4 and 6: their merits
AW's ground of appeal no 5
AW's ground of appeal no 5: the 'crime/fraud exception'
AW's ground of appeal no 5: the relevant statutory framework
AW's ground of appeal no 5: its merits
AW's appeal and the appropriate orders to be made: conclusions
Mr Rayney's appeal: overview of the evidence before the magistrate
Mr Rayney's appeal: the grounds which must be made out to affect the result
Mr Rayney's ground of appeal no 1: general
Mr Rayney's ground of appeal no 1: the magistrate's reasons
Mr Rayney's ground of appeal no 1: Mr Rayney's submissions
Mr Rayney's ground of appeal no 1: its merits
Mr Rayney's ground of appeal no 2(a): general
Mr Rayney's ground of appeal no 2(a): the issue which Mr Rayney seeks to agitate in ground 2(a) was not raised at the hearing before the magistrate
Mr Rayney's ground of appeal no 2(a): the magistrate's reasons
Mr Rayney's ground of appeal no 2(a): the allegations made by Mrs Rayney
Mr Rayney's ground of appeal no 2(a): Mr Rayney's submissions
Mr Rayney's ground of appeal no 2(a): its merits
Mr Rayney's ground of appeal no 2(b): general
Mr Rayney's ground of appeal no 2(b): the magistrate's reasons
Mr Rayney's ground of appeal no 2(b): Mr Carr's file note
Mr Rayney's ground of appeal no 2(b): Mr Rayney's submissions
Mr Rayney's ground of appeal no 2(b): its merits
Mr Rayney's ground of appeal no 2(c): general
Mr Rayney's ground of appeal no 2(c): the magistrate's reasons
Mr Rayney's ground of appeal no 2(c): its merits.
Mr Rayney's ground of appeal no 3
Mr Rayney's ground of appeal no 3: its merits
Mr Rayney's appeal: conclusions
Newnes JA's reasons............................................................................................................... 97
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3 PART A
SCHEDULE 3 PART B
SCHEDULE 4
SCHEDULE 5
SCHEDULE 61McLURE P: These appeals are from orders made by Magistrate Flynn on 17 December 2009 relating to Mr Lloyd Rayney's claim of legal professional privilege for documents seized from Mr Rayney and his family lawyer. All the necessary background is set out in the reasons for judgment of Buss JA. It is sufficient to note the following.
2On 7 August 2007 Corryn Rayney, the wife of Mr Rayney, was killed. Her body was located on 18 August 2007. Mr Rayney is a practising barrister with significant criminal law experience. He claimed legal professional privilege for records seized from his home and business premises and from the offices of Carr & Co, his family law solicitors. The records were seized by Western Australian police pursuant to search warrants issued under s 42 of the Criminal Investigation Act 2006 (WA) (the Act).
3In accordance with s 151 of the Act, AW (who I will refer to in these reasons as the appellant), a member of the Western Australian police force, made applications to the Magistrates Court at Perth for the determination of Mr Rayney's claims of legal professional privilege.
4Magistrate Flynn appointed a computer forensic expert to assist him in identifying relevant records contained in electronic records seized from Mr Rayney's premises. Audio recordings were located within the electronic records. The audio recordings included 81 items which are referred to as the 'Tranche 1 Files'.
5On 18 and 19 November 2009 the learned magistrate heard Mr Rayney's claim of legal professional privilege over the Tranche 1 Files and a file note dated 6 August 2007 made by Mr Carr during a conference with Mr Rayney on that date (the Carr file note).
6The magistrate categorised the items in the Tranche 1 Files as follows:
Category 1 files -
ID 1 ‑ 9, identified as being copies of audio recordings of conversations between Mr Rayney and his wife;
Category 2 files -
ID 10 ‑ 29; ID 52 ‑ 73 and ID 75 ‑ 81, identified as copies of recordings of telephone conversations between Mr Rayney and third parties made without the knowledge or consent of those parties;
Category 3 files -
The whole of ID 51 and 74, parts of which contained information about the computer files in Categories 1 and 2.
7The magistrate found that the Category 1 files were not privileged; with the exception of items 12, 13, 54 and 55, the Category 2 files were privileged; and those parts of ID 51 and ID 74 that would disclose privileged information the subject of the Category 2 files were also privileged.
8For the purposes of the determination of his claim, Mr Rayney was permitted to file and rely on affidavits and written submissions, significant portions of which were redacted. The affidavits and written submissions in redacted form were served on the appellant.
9This is the second appeal to this court arising out of the applications for the determination of Mr Rayney's claims of legal professional privilege. The appellant appealed against orders made by the magistrate relating to the extent of the permitted redactions to the affidavit evidence and written submissions filed on behalf of Mr Rayney. The appeal was ordered to proceed as an application for review under s 36 of the Magistrates Court Act 2004 (WA) and the primary judge ordered that the affidavits and submissions filed on behalf of Mr Rayney be served in unredacted form on counsel for AW, subject to the provision of confidentiality undertakings. There was no issue in that appeal as to the propriety of the procedure adopted by the magistrate for determining the claim to legal professional privilege or the merits of the rulings he made on the permissible redactions: Rayney v AW [2009] WASCA 203 [41] (the first appeal). In the course of the hearing of the first appeal on 22 October 2009, the court made observations about the usual procedure for determining claims of legal professional privilege.
10The hearing before the magistrate occupied one and half days during which five witnesses were called to give evidence, including Mr Rayney, his family lawyer (Mr W Carr) and his criminal lawyer (Ms Amanda Blackburn). The magistrate imposed time limits on the cross‑examination and re‑examination of witnesses. As a result of court related time constraints, the parties did not make closing submissions.
11The six grounds of appeal on which the appellant relies are directed at the successful claim of privilege in relation to the Category 2 files, and those parts of the Category 3 files that would disclose the content of the Category 2 files. Mr Rayney appeals against the dismissal of his privilege claim over the Category 1 files.
12I propose to commence with the appellant's grounds 2 and 3 which claim the magistrate erred in ruling that the original recordings of the discussions and the Category 2 files were privileged. In order to ensure that any appeal from the decision of this court is not rendered nugatory, the content of the communications in issue are summarised in schedules to the reasons of Buss JA which will remain confidential to Mr Rayney until further order.
Appellant's grounds 2 and 3
13Following this court's observations during the hearing of the first appeal, the magistrate ordered Mr Rayney to provide relevant non‑privileged information about each item in the Category 2 files. The information provided by Mr Rayney for each item was identical and in the following terms:
Recorded telephone discussion made after 7 August 2007 between [Mr Rayney] and another person for the purpose of seeking legal advice in respect of potential litigation, use in such potential litigation and seeking legal advice in relation to the discussion.
14The statement is unhelpfully general. It does not disclose whether the record was an original or a copy; when the original was made; when the copy was made; who created, or caused to be created, the original and/or copy; whether the claim to privilege derived from the privileged status of the telephone discussion or because the record of the discussion was for communication to his lawyers; the name of the third party, or the general category into which they would fall (eg possible witness); whether and if so when the Category 2 files were communicated to a lawyer; and the subject matter of the anticipated litigation.
15Mr Rayney contended that the date of the original recordings and the name or other details of the 'other person' could not be revealed without disclosing the content of the privileged material. Assuming for the moment that is correct, it provides no excuse for the failure to provide the balance of the information to which I have referred. However, even if that information had been provided, the nature and extent of the properly redacted information (that which would, directly or indirectly, disclose the nature or content of the confidential communications the subject of the privilege claim) was such as to effectively exclude the appellant from meaningful involvement in the identification and determination of a number of issues arising out of the claim of privilege. Mr Rayney was able to advance and advocate for fundamental aspects of his privilege claim in secret and on unchallenged evidence. That is particularly unfortunate because the claim raises challenging legal and factual issues.
The legal principles
16Section 151 of the Act provides for the procedure to be followed when records seized under the Act are the subject of a claim of, inter alia, legal professional privilege. By s 151(7) the applicant and any person entitled to possession of the records are entitled to be heard on the application. Nothing in s 151 displaces or alters the scope or application of the common law principles relating to legal professional privilege.
17Mr Rayney's claim in relation to the Category 2 files rests on both limbs of legal professional privilege, being advice privilege and litigation privilege. Advice privilege attaches to confidential communications made for the dominant purpose of obtaining or giving legal advice. The traditional formulation of litigation privilege is that it applies to confidential communications passing between a client, the client's legal adviser and third parties for the dominant purpose of use in litigation which is either pending or in contemplation. There must be a real prospect of litigation as distinct from a mere possibility: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59.
18Legal professional privilege extends to material prepared for the dominant purpose of communication to the legal adviser even if the communication has yet to occur: Grant v Downs (1976) 135 CLR 674, 690.
19Legal professional privilege ordinarily protects communications rather than documents; the test for privilege is anchored to the purpose for which the document was brought into existence: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Thus, legal professional privilege can attach to copies of non‑privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend (507) (Brennan CJ), (544) (Gaudron J), (553 ‑ 554) (McHugh J), (571 ‑ 572) (Gummow J) and (587) (Kirby J).
20There is a qualification to the general rule. Legal professional privilege also protects from disclosure documents that record legal work carried out by the lawyer (such as research and file notes) for the benefit of the client whether or not they are, or are intended to be, provided to the client: Propend (550) (McHugh J); Trade Practices Commission v Sterling (1979) 36 FLR 244, 245 ‑ 246 (Lockhart J); Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333 ‑ 334 (Anderson J).
21Communications with an adversary or a person with an adverse interest are not ordinarily confidential for the purposes of the privilege: Sugden v Sugden (2007) 70 NSWLR 301 [63] ‑ [64]; Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 337, 339.
22The question whether the relevant communication must be confidential in order to attract litigation privilege is not finally settled. The authorities are discussed in Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd (2007) 34 WAR 279. The balance of authority is that confidentiality is required but is satisfied if it is intended that the relevant communication be and remain private until the client elects to disclose the content: Public Transport Authority [35].
23The party resisting disclosure carries the onus of proving that legal professional privilege applies: Grant v Downs (689).
24A dominant purpose is one that predominates over other purposes; it is the prevailing or paramount purpose: Pratt Holdings Pty Ltdv Commissioner of Taxation (2004) 136 FCR 357 [35]. Where the question involves a document, the relevant purpose is the purpose for bringing into existence the document containing or comprising part of the confidential communications: Grant v Downs (688, 694).
25The purpose for which a communication is undertaken or a document is brought into existence is a question of fact that must be determined objectively; evidence of the intention of the person who made, or caused to be made, the document is not conclusive: Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 [30].
26It is not suggested that Mr Rayney was at any material time acting in his capacity as a lawyer representing himself. He had retained Ms Blackburn to act for him; his position was that of client, he being the defendant in anticipated criminal proceedings relating to the death of his wife. Nor is there any suggestion that Mr Rayney recorded the conversations on behalf of or at the direction of his lawyers.
Analysis
27Mr Rayney made the original recordings with a handheld dictaphone. The Category 2 files were created by Mr Rayney in mid‑September 2007. I propose to commence with the question whether the original recording (on the dictaphone) of each conversation is privileged. The proper starting point is the status of the conversations themselves, most of which were initiated by the 'other person' (the third party).
28Having regard to the position and capacity in which each third party acted and the content of the discussions, there is no arguable basis for a claim that any of those communications are privileged. Thus, the original recordings cannot derive privilege by reference to the communications recorded.
29The original recordings can only attract legal professional privilege if, at the time of their creation, Mr Rayney intended to provide those recordings to his lawyer for legal advice or for use in the anticipated litigation. In those circumstances, the only relevant (intended) 'communication' is between Mr Rayney and his lawyer and the only potential confidential information to be protected is that Mr Rayney intended to seek legal advice in relation to the contents of the original recordings or to use that information in the anticipated litigation.
30That being the case, the third parties can and should previously have been identified generically as police officers and the subject matter of the discussion broadly identified as being in connection with the investigation of the disappearance and death of Mrs Rayney. That information is in sufficiently general terms to prevent the appellant and other police officers from identifying the particular communications in issue. In particular, there is no evidence that the Category 2 files contain all the conversations between Mr Rayney and police recorded on the dictaphone or that Mr Rayney recorded all his telephone conversations with police from 7 August 2007 to 20 September 2007.
31The disclosure of the limited information reveals that the third parties were acting in the performance of their public duties and would be entitled, indeed bound, to seek and use relevant information from Mr Rayney in any way necessary or desirable in the proper exercise of their duties. Neither participants to the conversations in question could reasonably infer that their discussions would be confidential in the sense required to sustain a claim of legal professional privilege. The communications bear no similarity to obtaining a proof of evidence from a potential witness.
32For the sake of completeness, I should make explicit what is implicit in this analysis which is that save for the privilege against self‑incrimination, the right to silence (a shorthand expression covering a number of distinct rules) does not limit the statutory power under s 42 of the Act or modify or reduce the obligations associated with establishing a claim of legal professional privilege.
33As previously noted, the original recordings could only be privileged if they were created with the intention of providing them to a lawyer for legal advice or use in litigation. There is no proper foundation in the evidence for a finding that at the time of recording each separate conversation Mr Rayney intended to provide the original recording (on the dictaphone) to his lawyer for any purpose that would attract privilege. As the relevant intention had to exist prior to Mr Rayney acquiring knowledge of the content of the discussions (which were largely instituted by police on a variety of matters), the evidence is incapable of supporting such a finding. The best that can be said is that he might have done so. However, adverse inferences are also objectively open on the evidence as a whole. I discuss those matters below. Accordingly, the magistrate erred in finding that the original recordings were privileged.
34Mr Rayney's evidence was that he created the Category 2 files with the intention of providing them to his lawyer. The Category 2 files, created by Mr Rayney in mid‑September 2007, are contained on a compact disc (with the words '5.9 ‑ 18.9' written on the outside) and on each of the computers seized from Mr Rayney's residential and business premises [51]. The only reasonable inference to be drawn is that, even if one of the copies of the Category 2 files was intended for provision to Mr Rayney's lawyer, Mr Rayney would remain in possession of the other copies of the Category 2 files. That raises for consideration the question whether the Category 2 copies on Mr Rayney's computers (which it can be inferred were intended to remain in Mr Rayney's possession) are not privileged.
35As the conversations the subject of the covert recordings and the original recordings are not themselves privileged, it is arguable that the Category 2 copies which were intended to remain in Mr Rayney's possession are also not privileged. However, these matters were not raised by the parties (the appellant would not have known they were an issue) and need not be decided. I will proceed on the assumption that if the relevant dominant purpose existed at the time of making the Category 2 files, all copies thereof will attract privilege.
36The magistrate found that the Category 2 files were created for the dominant purpose of obtaining legal advice or for use in the anticipated criminal proceedings against Mr Rayney. The appellant challenges that finding.
37This court is in as good a position as the magistrate to decide on the proper inferences to be drawn from the evidence concerning Mr Rayney's purpose, in which event if it considers that the magistrate erred, this court must give effect to its own judgment: Warren v Coombes (1979) 142 CLR 531. This court is in the position to draw its own inferences because purpose is to be objectively determined and because the evidence on that subject could not be adequately tested in cross‑examination as a result of the procedure adopted for determining the privilege claim. Moreover, the magistrate's finding concerning the Category 2 files is informed by his erroneous finding that the original recordings were privileged.
38Having regard to all the relevant evidence, I am not satisfied that Mr Rayney made the copies of the original recordings of the communications between Mr Rayney and the third parties (the Category 2 files) for the predominant purpose of providing them to his lawyer to seek or obtain legal advice or for use in litigation. I have reached that conclusion for the following reasons.
39It is apparent from the content of the Category 2 files that the original recording was 'at large' in the sense it was driven by the position (status) of the third parties rather than any expectation on reasonable grounds that the conversation would be on a subject of relevance to Mr Rayney in his capacity as a defendant in potential criminal proceedings relating to the death of his wife, rather than in his capacity as husband or father. A covert sweep of that breadth is bound to, and did, produce material of no significance or relevance from a legal advice or litigation perspective. The content of the Category 2 files supports the inference that the original recordings were copied without reference to their individual legal significance or relevance.
40That inference is supported by Mr Rayney's failure to communicate the content of any of the recorded conversations to Ms Blackburn. That is, Mr Rayney did not provide the original recordings or the Category 2 files to his lawyer nor did he seek or obtain legal advice from her about the content of those recordings. Moreover, although the Category 2 files were seized on 20 September 2007, Mr Rayney still had the original recordings on his dictaphone and thus had the means to provide the original or a copy of the recordings to his lawyer. Rather than take that course, Mr Rayney disposed of the dictaphone. At best, Mr Rayney's objectively determined purpose in copying the original recordings was to enable him to assess at a later stage whether the communications should be referred to his lawyer for advice or for use in the event the anticipated litigation materialised. That purpose does not attract privilege.
41At worst, there is evidence to suggest Mr Rayney acted for an improper purpose or purposes. The disposal of the dictaphone containing the original recordings of the Category 2 files was not adequately explained. That conduct must be assessed against the background of Mr Rayney's oral evidence concerning his dealings with the (different) dictaphone used to record conversations with his wife prior to her death, which he also disposed of.
42Mr Rayney's evidence was to the following effect. After the execution of the search warrant on 20 September 2007, Mr Rayney left the dictaphone containing the original recordings of the conversations with his wife in the offices of his criminal lawyer in a file together with his papers (ts 33). The file was not provided to his lawyer but simply placed on a desk in her offices. He returned sometime later to collect the file and subsequently disposed of the dictaphone. It is open to infer that Mr Rayney put the dictaphone (and the files) into the possession of his lawyer for the dominant purpose of protecting them from seizure and compulsory disclosure rather than for the purpose of obtaining advice or for use in litigation. Clearly that purpose would not attract privilege.
43Against that background, it is also open to infer that at the time Mr Rayney made the Category 2 files he believed (correctly in my view) the original recordings were not privileged. Notwithstanding that the relevant search warrant entitled police to seize the dictaphone from the search premises, Mr Rayney kept the dictaphone on his person during the execution of the search warrant. That search occurred on 20 September 2007, shortly after Mr Rayney created the Category 2 files. The dictaphone was disposed of shortly after that search. The search on 20 September 2007 was preceded by an earlier search of Mr Rayney's residence on 22 August 2007.
44Having a belief that the original recordings were not privileged, it may be further inferred that Mr Rayney made the Category 2 files with the intention of ensuring that the dictaphone with the original recordings was placed out of reach of the authorities. Clearly that purpose cannot attract privilege. As this dictaphone was not placed with his lawyer, it can be inferred that he intended to dispose of it.
45Having regard to all the matters canvassed above, I am not satisfied that Mr Rayney created the Category 2 files for the dominant purpose of providing them to his lawyer for legal advice or for use in litigation.
46The appellant also contended that, Mr Rayney having disposed of the unprivileged original recordings and there being no other admissible evidence to prove the contents of the original, the otherwise privileged copy lost its protection: Propend (512) (Brennan CJ). Chief Justice Brennan relied on the principle of implied waiver of privilege by reason of unfairness in coming to this position (511). However, the fairness principle has now been rejected as the rationale or basis for the test of waiver: Mann v Carnell (1999) 201 CLR 1 [29]: Osland v Secretary to the Department of Justice (2008) 234 CLR 275, [35], [44] ‑ [46], [48] ‑ [50]. Moreover, the position of Brennan CJ is inconsistent with that of McHugh J (555) and Gummow J (570 ‑ 571) in Propend. Their position is that a copy of a non‑privileged document will not be protected by privilege if the party copied the non‑privileged document with the intention of destroying the original. Having regard to modern authority, I would follow the law as stated by McHugh and Gummow JJ.
47However, it is unnecessary for the disposition of this appeal to make positive adverse findings against Mr Rayney as to his actuating purposes in making the Category 2 files. In circumstances where there were significant restrictions on the ability of the appellant to properly cross‑examine Mr Rayney on all relevant matters, I would decline to do so. However, the content of the Category 2 files and the fact that the adverse findings identified earlier are objectively open, causes me to conclude that it was not reasonably open to the magistrate to make a positive finding that Mr Rayney's dominant purpose in making the Category 2 files was to provide them to his lawyer for legal advice or for use in litigation.
48The magistrate having erred in finding that Mr Rayney's dominant purpose in making the original recordings and the Category 2 files attracted legal professional privilege, grounds of appeal 2 and 3 must be upheld.
49The appellant also contended that the magistrate erred in finding that the original recordings were made at a time when there was a real prospect of litigation. The magistrate said at [55] that the evidence of Ms Blackburn and the steps she took in anticipation of Mr Rayney being charged and the contents of some of the files (eg ID 20) supports a finding that, as at mid‑September 2007, there was a real prospect of litigation, as distinct from a mere possibility. This finding is not challenged.
50However, the magistrate did not make an express finding that there was a real prospect of litigation at the time the original recordings were made although he does find that Mr Rayney's purpose in making the original recordings was the litigation he anticipated and that the original recordings are privileged. This gives rise to an ambiguity about whether there was an implied finding. The dates of the original recordings are disclosed in Schedule 4 to the judgment of Buss JA. I have examined the evidence of Ms Blackburn and Mr Rayney on the subject. The evidence relied on by the magistrate supports a finding that there was a reasonable apprehension of criminal proceedings from the date of the first recorded conversation.
Appellant's grounds 4 and 6
51The appellant claims in ground 4 that the magistrate erred in ruling that the appellant was prohibited from knowing the names of the third parties to the recorded conversations and the dates on which the original recordings took place. Ground 6 is also based on the failure to provide this information.
52As noted in the first appeal at [43], the orthodox procedure for determining a claim of legal professional privilege reflects the general rule that the date or dates of a communication and the identities of the persons involved in the communication are ordinarily not protected by the privilege. It was also noted that such information may be privileged in exceptional circumstances. This is one of those occasions. The redacted evidence establishes that disclosure of the date of the conversations (and thus the date of the original recordings) and the names of the third parties would, in combination with other material in the appellant's possession, have the consequence of disclosing the content of the material to be communicated to lawyers for purposes claimed to be privileged. Thus if the Category 2 files were privileged, it was proper to redact the names and dates. Grounds 4 and 6 should be dismissed.
Appellant's ground 5
53The appellant contends the magistrate erred in finding that the original recordings of the conversations were made because they were reasonably necessary for the protection of Mr Rayney's lawful interests and therefore were recorded in compliance with s 5(3)(d) of the Surveillance Devices Act 1998 (WA) (SDA).
54I understand the appellant's contentions to be that the original recordings were not privileged because the covert recording was an offence under s 5(1)(b) of the SDA with the consequence that the Category 2 files (the copies) ceased to be privileged because the copies were tainted by the illegality of the original recordings.
55Section 5(1)(b) provides that subject to subs (3) a person shall not use a listening device to record a private conversation to which that person is a party. There is no challenge to the magistrate's findings that the dictaphone used by Mr Rayney was a listening device as defined in s 3 of the SDA and that conversations the subject of the Category 2 files were private conversations (as defined in the SDA).
56Section 5(3)(d) relevantly provides that subs (1)(b) does not apply to the use of a listening device by or on behalf of a person who is a party to a private conversation if a principal party to the private conversation consents to the use and the use is reasonably necessary for the protection of the lawful interests of that principal party.
57The only live issue in the appeal is the correctness of the magistrate's finding that the covert recording was reasonably necessary for the protection of Mr Rayney's lawful interests. I agree with Buss JA's construction of s 5(3)(d) of the SDA.
58In concluding that the covert recording of the conversations was reasonably necessary to protect Mr Rayney's lawful interests, the magistrate relied on the following: (1) Mr Rayney reasonably anticipated that he was the subject of investigation of a serious criminal offence; (2) objectively, there was a likelihood that the subject matter of the conversations would be canvassed by him with his lawyers for the purpose of receiving legal advice; (3) it was not reasonably practical for Mr Rayney to protect his interests by seeking the assistance of the police; and (4) the alternative of making notes was not reasonably practicable having regard to the number of conversations, their length and complexity of the content of many of them. The evidence supports the findings in (1), (3) and (4) but not (2).
59Whether the use of a listening device is reasonably necessary is to be judged on the circumstances that existed at the time of its use. It is contended on behalf of Mr Rayney that the content of what is recorded is not relevant to an assessment of what is reasonably necessary because the content is not disclosed until after the decision to use the listening device and the implementation of that decision. The contention is too broadly stated. Previous dealings and contact are likely to inform an assessment as to likely topics. Moreover, any intended 'positioning' by the party using the listening device can come as no surprise.
60However, I accept that the unchallenged finding that Mr Rayney believed on reasonable grounds that he was a suspect in the murder of his wife provides a strong foundation for concluding that the covert recording of his conversations with police by means of a dictaphone was reasonably necessary to protect his lawful interests. The situation was complicated by Mr Rayney's multiple 'capacities' which increased the justification for an accurate record. I am not persuaded the magistrate erred in concluding that the Category 2 files were reasonably necessary to protect Mr Rayney's lawful interests.
61As the matter was fully argued, I propose to address the question whether a breach of s 5 of the SDA would bring the original recordings and/or any copies thereof within the crime/fraud 'exception' to the scope of legal professional privilege. That issue was considered by Hill J in Carbone v National Crime Authority [1994] 52 FCR 516 who answered the question in the affirmative. Hill J said:
The legislature had seen fit to proscribe the taping of intercepted conversations without the authority of the person whose conversations are taped … A significant point is that the communications, in respect of which it is alleged privilege attaches, were themselves obtained in breach of Parliament's proscription. To permit privilege to attach in such circumstances, in my view, would be to impede and indeed discourage the due administration of justice and observance of the law with the consequence that I would hold that privilege does not attach to the transcripts (528 ‑ 529).
62It was contended on behalf of Mr Rayney that the observations of Hill J in Carbone disclose an error of principle because he asked himself the wrong question; the question is not whether the document or record is tainted by its nexus with an illegal act, but whether the privileged communications were in furtherance of, or part of some criminal or unlawful proceeding.
63Legal professional privilege does not attach to a communication made as part of a criminal or unlawful proceeding or in furtherance of an illegal object: Propend (563) (Gummow J); The Queen v Bell; Ex parte Lees (1980) 146 CLR 141, 145 (Gibbs J). The application of the statement of general principle is not without its difficulties.
64The facts in Propend provide some guidance. Copies of documents were seized pursuant to a search warrant. The 'communication' in issue was the provision of the copy documents to a lawyer. The copies were provided to the lawyer for the dominant purpose of obtaining legal advice. There was hearsay evidence that the non‑privileged originals of the documents were brought into existence for or in furtherance of illegal purposes, namely tax evasion. The relevant issue in Propend was the sufficiency of the evidence to support the claim that the original documents were tainted by illegality. However, the High Court appeared to accept that if the evidence relating to the original documents was sufficient, the communication of the copies to the lawyer on the facts in Propend may not be protected by privilege.
65Of course, the crime/fraud exception would not apply if a person provided an illegal product to his lawyer for the purpose of obtaining legal advice in relation to the lawfulness or otherwise of his or her conduct, for example, in creating the product in question. However, there was no evidence that such was Mr Rayney's purpose in relation to the Category 2 (or Category 1) files. His focus was on obtaining legal advice relating to the content of the recordings, not the circumstances in which the recordings came into existence.
66There would be a close connection between any illegal recording and the intended communication to the lawyer in this case; the illegally obtained document was to be the source of the information to be communicated to the lawyer for advice. To protect the communication from disclosure in those circumstances would be inconsistent with the rationale for the privilege, which is to assist and enhance the administration of justice: Propend (508) (Brennan CJ). This conclusion is consistent with the reasoning in Carbone where the illegal taping resulted in the disclosure of the otherwise privileged transcript. The transcript was in substance a copy of the tape. That the illegality of an original record can infect a copy is also consistent with the reasoning in Propend. Thus if the original records of the conversations between Mr Rayney and the third parties were obtained in breach of the SDA, the Category 2 files would not be protected by legal professional privilege.
The appellant's ground 1
67The particulars to ground 1 limit the scope of the challenge. In summary, the substance of the complaints are that (1) the magistrate held a private hearing about the redactions with the representatives of Mr Rayney; (2) the extent of the redactions were such as to deprive the appellant of natural justice; (3) parts of the redacted evidence was first made known to the appellant at the hearing; (4) parts of the redacted evidence was first made available to the appellant in the magistrate's reasons for decision; (5) the magistrate declined to hear closing submissions; and (6) the magistrate failed to hear submissions from the appellant about whether there were exceptional circumstances that justified upholding the claim to privilege in relation to the names of the third parties to the conversations the subject of the Category 2 files.
68There is no 'in principle' challenge by the appellant to the procedure permitting Mr Rayney to rely on evidence and submissions when material portions thereof were not disclosed to the appellant. However, I propose to comment on the appropriateness of that course. This approach has been used and approved in the determination of claims of public interest immunity: Parkin v O'Sullivan [2009] FCA 1096 [28]; The Queen v Bebic (Unreported, NSWCCA, 27 May 1982), 4; Haj-ismail v The Minister for Immigration (No 2) (1982) 45 ALR 379, 389.
69Neither party is aware of any case applying or approving this approach to the determination of a claim of legal professional privilege. There are some significant differences between public interest immunity and legal professional privilege which may explain the divergent procedures. First, in a claim of public interest immunity, the court is required to undertake a balancing of competing public interests in its determination. Legal professional privilege on the other hand is a substantive common law right which is itself the product of a balancing exercise between competing public interests; given the application of the privilege, no further balancing exercise is required: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, 64 ‑ 65. Secondly, it is likely that a court will be in a much better position to make a determination on legal professional privilege, by examining the documents if necessary, than in making a value judgment about the variety of matters that can attract public interest immunity. Thirdly, a claim of public interest immunity is usually made by a third party with no interest, direct or indirect, in the outcome of existing or pending litigation.
70As is clear from my consideration of the substantive grounds, there are very significant disadvantages in the procedure adopted by the magistrate, not only to the party who is deprived of access to relevant evidence and submissions but to the court. The procedure should not be used in determining a claim of legal professional privilege unless there is no reasonable alternative. If adopted, any redactions must be confined to the absolute minimum essential to ensure the protection of the communications claimed to be privileged. That did not occur in this case with the consequence that the appellant was denied procedural fairness. Having regard to the litigation history and the unambiguous position of the magistrate, it cannot be said that the appellant's failure to seek further information prior to the commencement of the hearing constituted acquiescence.
71Moreover, the appellant should not have been excluded from any hearings and the parties should have been given the opportunity to make closing submissions to reflect the evidence adduced at the hearing and on the subject of the non‑disclosure of the names of the third parties. These also constitute denials of procedural fairness.
72But for the appellant's success in the appeal, the cumulative effect of the denials of procedural fairness could have affected the outcome below and required the grant of relief: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 88. The other matters of which the appellant complains are not of that character.
Mr Rayney's appeal
73Mr Rayney appeals from the decision of the magistrate dismissing his claim of legal professional privilege for the Category 1 files (copies of audio recordings of conversations between Mr Rayney and his wife) and the Carr file note.
74In order to succeed in the appeal relating to the Category 1 files, Mr Rayney must overturn the magistrate's findings that those files:
(1)were not made for the dominant purpose of obtaining legal advice or use in litigation (ground 2(b));
(2)were not confidential communications (ground 2(c)); and
(3)were not privileged because the original recording:
(a)was made in breach of the SDA (ground 1);
(b)was not reasonably necessary for the protection of the lawful interests of Mr Rayney (ground 2(a)).
Dominant purpose (ground 2(b))
75The conversations between Mr Rayney and his wife the subject of the Category 1 files took place between May and July 2007 after Mrs Rayney had made allegations in emails of improper conduct by Mr Rayney. Mr Rayney used a handheld dictaphone to record the conversations. The contents of the dictaphone were copied onto a disc within a few days of the conversations and the disc remained in Mr Rayney's chambers until seized by police on 20 September 2007. The magistrate rejected Mr Rayney's evidence that his wife had consented to the recording of the conversations.
76The Category 1 files were not provided to Mr Carr. However, on 6 August 2007, Mr Rayney played to Mr Carr a recording of a conversation between himself and his wife. Neither Mr Rayney nor Mr Carr were able to recall the content of the recording played on that date. The magistrate found that the content of the Category 1 files did not correspond with Mr Carr's file note describing the content of the recording that was played and that the Category 1 files did not contain a record of all the telephone conversations between Mr Rayney and his wife which he caused to be recorded.
77Mr and Mrs Rayney and their children were residing in the same house in the period in which the conversations were recorded. The magistrate characterised the conversations as prosaic (dull, common place). This description of the content is not challenged.
78The magistrate was not satisfied that Mr Rayney's dominant purpose in creating the Category 1 files (that is, copying the original recordings onto a disc) was to obtain legal advice. He relied on two matters. First, he was not satisfied that one of the Category 1 files had been played to Mr Carr on 6 August 2007 and secondly, the content of the recordings were not linked to emails said by Mr Rayney to be the motive for making the recordings. Mr Rayney's failure to provide the Category 1 files or play them to Mr Carr and the subject matter of their content provide a proper foundation for refusing to make a positive finding that Mr Rayney's dominant purpose was to obtain legal advice.
79In considering whether Mr Rayney's dominant purpose in creating the Category 1 files was for their use in litigation, the magistrate focused on the conduct of Mr Rayney that would have disqualified him from adducing the Category 1 files into evidence. That is a relevant consideration but it does not exhaust the range of relevant 'uses' in litigation: Grant v Downs (677); Trade Practices Commission v Sterling (246). However, any error in failing to consider broader considerations does not affect the outcome. The matters on which the magistrate relied in refusing to make a finding of dominant purpose of obtaining legal advice are equally applicable to the claim based on litigation privilege.
80I would dismiss ground 2(b). Accordingly, Mr Rayney's appeal against the rejection of his claim of legal professional privilege must fail. However, I will briefly deal with the remaining grounds.
Confidential communications (ground 2(c))
81The magistrate found that the Category 1 files were not confidential communications and thus were not privileged because the conversations which were recorded were not confidential. There is no doubt that the communications between Mr Rayney and his wife, who were potential opponents in the anticipated litigation, were not relevantly confidential for the purposes of legal professional privilege. However, the 'communication' on which Mr Rayney relied to claim privilege was the claimed intention to communicate the Category 1 files to his lawyer for legal advice and for use in litigation. The fact that a person is seeking legal advice on non‑privileged information or is to provide that information to his lawyer for use in litigation is itself confidential. I would uphold ground 2 (c).
Consequence of original recording being in breach of SDA (ground 1)
82I agree with Buss JA for the reasons he gives that the original recordings of the Category 1 files breached s 5 of the SDA. I have addressed the legal issues associated with this ground above and concluded that where the original recordings were made in breach of s 5 of the SDA, a copy of those recordings (in this case the Category 1 files) also loses any privilege it would otherwise have. I would dismiss ground 1.
Whether covert record reasonably necessary (ground 2(a))
83I agree that ground 2(a) should be dismissed for the reasons given by Buss JA.
Carr file note (ground 3)
84I agree that ground 3 should be dismissed for the reasons given by Buss JA.
Conclusion
85I would allow the appellant's appeal and order that the magistrate's decision concerning the Category 2 files (except items 12, 13, 54 and 55) be set aside and the claim for privilege be dismissed.
86I would dismiss Mr Rayney's appeal.
87BUSS JA: Lloyd Patrick Rayney and Corryn Veronica Ann Rayney were husband and wife.
88On or about 7 August 2007, Mrs Rayney was killed. Her body was discovered on 18 August 2007. No‑one has been charged in connection with her killing.
89Mr Rayney is a barrister. He was admitted to practice on 3 April 1986.
90On 22 August 2007 and 20 September 2007, the Western Australian police (WA police) executed search warrants under s 42 of the Criminal Investigation 2006 (WA) (the CIA) at 6 Monash Avenue, Como, being Mr Rayney's residential address, and at Francis Burt Chambers, 77 St Georges Terrace, Perth, being Mr Rayney's business address.
91During the execution of the search warrants, the WA police seized numerous items including non‑electronic and electronic records. The electronic records comprised computers and other electronic media.
92Mr Rayney notified the WA police that he claimed legal professional privilege over all of the records seized from Francis Burt Chambers and, amongst other things, all of the information contained on the computers and other electronic media seized under the search warrants.
The history of the litigation between the parties
93On 24 August 2007 and 24 September 2007, in accordance with s 151 of the CIA, AW, who is a member of the WA police, made two applications to the Magistrates Court at Perth to determine the claims of legal professional privilege (Applications 3 and 6 of 2007).
94AW is a delegate of the police officer in charge of the investigation into the suspected unlawful killing of Mrs Rayney.
95Magistrate Flynn, who determined the applications, appointed a computer forensic expert to assist him in identifying relevant records contained in the electronic records. The expert located various audio recordings within the electronic records.
96The audio recordings are included in 81 items. Some of these items are: copies of recordings of conversations between Mr Rayney and his wife contained on a compact disc; copies of recordings of conversations between Mr Rayney and a person or persons whose name or names had been redacted, contained on a compact disc; and copies of these recordings contained on computers and associated metadata.
97Pursuant to orders made by the magistrate, Mr Rayney notified the Magistrates Court and AW of the withdrawal of his claim of privilege over item 35 and over parts of the computer forensic analysis associated with this item. He maintained his claim of privilege over all or part of the other items (being items 1 ‑ 34 and 36 ‑ 81), which were referred to by the magistrate and the parties as the 'Tranche 1 files'.
98On 23 January 2009, the magistrate made orders for the filing of affidavits and written submissions in relation to Mr Rayney's claim of legal professional privilege. Order 10 provided:
[Mr Rayney] may, before serving any document required to be served by these orders, redact those portions of the document which reveal the nature or content of a communication or information which is the subject of the claim of legal professional privilege ('the Redacted Service Copy') and may serve the Redacted Service Copy in place of the document required to be served.
99Pursuant to order 10, Mr Rayney filed written submissions and three affidavits on which he intended to rely in support of his claim of legal professional privilege. Mr Rayney served on AW copies of the affidavits and submissions, but significant parts of them had been redacted to remove information in respect of which Mr Rayney claimed privilege.
100AW wrote to the magistrate asserting that he was unable to proceed with any substantive hearing on the claim of legal professional privilege because the extent of the redactions did not permit him to participate meaningfully in the proceedings.
101On 18 March 2009, the magistrate published reasons for ruling on the extent of the redactions. He upheld certain redactions, and ruled that other information no longer be redacted and be made available to AW. There were, relevantly, two schedules, B and C, to the reasons. These schedules contain extracts of redacted information the subject of the magistrate's rulings. On 26 August 2009, the magistrate made orders, by consent, giving effect to his reasons.
102The magistrate upheld redactions where he determined that there was a serious issue to be tried on whether the redacted information was privileged. Information in this category included:
(a)the dates of audio recordings;
(b)the names of persons (other than Mrs Rayney) with whom Mr Rayney had telephone conversations that he had recorded;
(c)the content of audio recordings (including those with Mrs Rayney);
(d)the names of potential witnesses and the dates of communications with those witnesses;
(e)the name of a solicitor with whom Mr Rayney had dealt; and
(f)computer files said to disclose the parties for whom Mr Rayney had acted, their addresses, the matters on which he had acted and the names of the solicitors who had instructed him.
103AW filed an appeal notice in the Supreme Court against the orders foreshadowed in the magistrate's reasons dated 18 March 2009. He asserted that the magistrate had erred in law in ruling that Mr Rayney could rely on affidavit evidence that was redacted and on submissions that were redacted 'when the extent and effect of those redactions was to deny [AW] natural justice in that it severely prejudiced [AW's] entitlement to be heard under section 151(7) of [the CIA], by depriving [AW] of the opportunity to test [Mr Rayney's] evidence and present [his] own evidence in relation to [Mr Rayney's] claim of legal professional privilege'.
104Murray J heard and determined the appeal. His Honour held that an order which permits redaction does not constitute a denial of procedural fairness. See AW v Rayney [2009] WASC 250 [27] ‑ [28]. He also concluded that the magistrate had not made any error, and certainly no error which would have enlivened the court's discretion under s 36(1) of the Magistrates Court Act 2004 (WA) to make a review order [60]. Despite Murray J's conclusion that the magistrate had made no error, he held nevertheless that the Supreme Court had power to make a consequential order under s 36(4) of the Magistrates Court Act. He then ordered that the un‑redacted affidavits and un‑redacted written outlines of submissions be served on the solicitor and counsel for AW upon the solicitor and counsel giving undertakings as to confidentiality [61].
105Mr Rayney appealed to this court against Murray J's order. See Rayney v AW [2009] WASCA 203 (Rayney No 1). This court allowed the appeal. McLure JA (Buss & Newnes JJA agreeing) decided, relevantly, that Murray J did not have the power to make the disclosure order [34]. As her Honour noted, the issues before this court on the appeal did not raise the propriety of the procedure adopted by the magistrate for determining the claim of legal professional privilege or the merits of the rulings he had made on the permissible redactions [41].
106On 19 March 2009, the WA police executed a search warrant under s 42 of the CIA at the offices of Carr & Co, solicitors. Mr Rayney had retained the firm to provide legal services.
107During the execution of the search warrant, the WA police seized one lever arch file containing documents, three white manila folders and one DVD copied from a computer hard drive. These items were located by William Michael Carr, a partner of the firm.
108Mr Carr notified the WA police that he claimed legal professional privilege over the documents and the DVD.
109On 2 April 2009, in accordance with s 151 of the CIA, a police officer made an application to the Magistrates Court at Perth to determine the claim of legal professional privilege (Application 10 of 2009).
110On 26 June 2009, the WA police executed another search warrant under s 42 of the CIA at the offices of Carr & Co. Records were seized. Mr Carr notified the WA police that he claimed legal professional privilege over the records. Once again, in accordance with s 151 of the CIA, a police officer made an application to the Magistrates Court at Perth to determine the claim (Application 16 of 2009).
111On 18 and 19 November 2009, there was a hearing before Magistrate Flynn to determine Mr Rayney's claim of legal professional privilege over the Tranche 1 Files and a file note dated 6 August 2007 made by Mr Carr during a conference with Mr Rayney on that date. The file note was seized by the police on 19 March 2009 and was one of the documents the subject of Application 10 of 2009.
The magistrate's decision on the matters heard on 18 and 19 November 2009
112On 17 December 2009, the magistrate delivered his decision on the matters heard on 18 and 19 November 2009, and published written reasons. Each of AW and Mr Rayney was successful in part and unsuccessful in part.
113The magistrate made these orders:
Tranche 1 from Application Nos 3 and 6 of 2007
1.Subject to Order 2, the Expert Court Assistant shall, as soon as practical but not before 24 December 2009, deliver to [AW], copies of the Records associated with the following ID numbers appearing in the Tranche 1 Hyperlinked List and Files:
(a)ID1 ‑ ID9 (Category 1)
(b)ID12 ‑ ID13; ID54 ‑ ID55 (Category 2)
(c)ID30; ID31; ID33; ID36 ‑ ID50 (Category 3 Client Material) and, after redacting any text that appears in the file name of ID10 ‑ ID11 or ID14 ‑ ID29, the following files: ID51; ID74 (Category 3 Audio Material).
2.Upon [Mr Rayney], on or before 23 December 2009, filing and serving a minute requesting the suspension of identified parts of Order 1, those parts of Order 1 shall be suspended until the later of:
(a)4 February 2010; and
(b)if an appeal is commenced on or before 4 February 2010, the determination of the appeal.
3.The description of each file in Schedules C and D to the Reasons for Ruling on Privilege on Tranche 1 shall not be published, except:
(a)to [Mr Rayney];
(b)upon [AW] becoming entitled to a copy of a file pursuant to Orders 1 and 2, the description of that file may be published.
19 March 2009 Documents from Application 10 of 2009
1.Subject to Order 2, the Registrar shall, as soon as practical but not before 24 December 2009, make available for collection by [AW], the Records identified in paragraph 6 of Schedule D of the Reasons for Ruling on Prima Facie Privilege as a file note made by William Carr.
2.Upon [Mr Rayney], on or before 23 December 2009, filing or serving a minute requesting the suspension of Order 1, that order shall be suspended until the later of:
(a)4 February 2010; and
(b)if an appeal is commenced on or before 14 January 2010, the determination of the appeal.
114Each of AW and Mr Rayney has appealed against the magistrate's orders. On 19 February 2010, Martin CJ ordered that the appeals be referred to, and heard and determined by, this court.
AW's grounds of appeal
115AW relies on six grounds of appeal. The grounds, without supporting particulars, read:
1.The Magistrate erred in law and in fact by failing to afford [AW] natural justice in respect of the hearing of [Mr Rayney's] claim of legal professional privilege over the Category 2 Files in Tranche 1.
2.The Magistrate erred in law and fact in ruling that the original recordings of the Category 2 Files in Tranche 1 contained on a handheld Dictaphone were privileged.
3.The Magistrate erred in law and in fact in ruling that the Category 2 Files in Tranche 1 (save for ID 12 and 13) were privileged.
4.The Magistrate erred in law and fact in ruling that [AW] was prohibited from knowing the names of the parties whose conversations were recorded by [Mr Rayney] and the dates upon which the recordings took place, referred to in the Category 2 Files of Tranche 1.
5.The Magistrate erred in law and in fact in ruling that the original recordings of the conversations comprising the Category 2 Files in Tranche 1 were made because they were 'reasonably necessary for protection of [Mr Rayney's] lawful interests', and therefore recorded in compliance with section 5(3)(d) of the Surveillance Devices Act 1998 (WA).
6.The Magistrate erred in law and in fact in ruling that the parts of ID 54 [sic 51] and 71 [sic 74] in the Category 3 Files of Tranche 1 would disclose the content of a privileged communication relevant to the Category 2 Files in Tranche 1 ruled by the Magistrate as privileged.
116On 19 February 2010, Martin CJ granted leave to appeal on each of these grounds.
AW's orders wanted
117AW's orders wanted, are these:
If the Appeal succeeds on either grounds 2, 3, or 5, then:
1.The appeal is allowed.
2.The decision of the Magistrates Court concerning the Category 2 Files in Tranche 1 (except for items 12, 13, 54 and 55) be set aside.
3.The Category 2 Files in Tranche 1 be released to [AW].
4.[Mr Rayney] pay [AW's] costs of the appeal to be taxed.
If the Appeal succeeds on ground 4 or 6, then:
1.The appeal is allowed.
2.The decision of the Magistrates Court concerning the names of the other parties to the conversations recorded by [Mr Rayney] in the Category 2 Files in Tranche 1 be set aside.
3.The names of the other parties to the conversations recorded by [Mr Rayney] and the dates upon which the conversations occurred, contained in the Category 2 Files in Tranche 1, be released to [AW].
4.[Mr Rayney] pay [AW's] costs of the appeal to be taxed.
If the Appeal succeeds on ground 1 only, then:
1.The appeal is allowed.
2.The decision of the Magistrates Court concerning the Category 2 Files in Tranche 1 (except for items 12, 13, 54 and 55) be set aside.
3.All material that does not disclose a confidential communication, as determined by the Court of Appeal, be provided to [AW].
4.The matter be re‑heard on an expedited basis by the Court of Appeal, or otherwise remitted to another Magistrate for re‑hearing.
5.[Mr Rayney] pay [AW's] costs of the appeal to be taxed.
Mr Rayney's grounds of appeal
Mr Rayney's grounds of appeal, as amended, provide:
1.His Honour erred in law in holding that a document brought into existence for the purpose of communication to a legal adviser (a copy of a recording) could not be privileged if there was evidence showing, prima facie, that the original recording was made in circumstances that breached the Surveillance Devices Act 1988.
2.His Honour erred in law and in fact in holding that copies of recordings of conversations between [Mr Rayney] and his wife were not privileged:
a.His Honour erred in law in determining whether [Mr Rayney] had installed and used a listening device in the reasonable protection of his own interests (Surveillance Devices Act 1988, s 5(3)) by reference to the content of the recording and not the circumstances in which the recordings were made, including, in particular, the allegations made by [Mr Rayney's] wife and the pending litigation between them;
b.His Honour erred in law and in fact in determining that the recordings were not made for the dominant purpose of obtaining legal advice when the findings that
i.the content of the recording (or recordings) which was played to [Mr Rayney's] solicitor on one occasion did not correspond to the content of the recordings for which privilege was claimed; and
iithe content of the recordings was not linked to the emails from [Mr Rayney's] wife
could not support that conclusion.
c.His Honour erred in law in holding that a recording made by [Mr Rayney] of a conversation with his wife which was made for the purpose of confidential communication to [Mr Rayney's] solicitor could not attract privilege if it did not disclose material from which the content of a privileged communication between [Mr Rayney] and his solicitor might be inferred.
3.His Honour erred in law in holding that a file note made by [Mr Rayney's] solicitor at a conference in which a recording was played was tainted by illegality and not privileged if the recording was made in breach of the Surveillance Devices Act 1988.
118On 19 February 2010, Martin CJ granted leave to appeal on each of these grounds.
Mr Rayney's orders wanted
119The orders wanted by Mr Rayney are these:
1The appeal be allowed.
2Order 1 of the Magistrates Court of Western Australia at Joondalup made 17 December 2009 be varied by deleting paragraph (a).
3In lieu of Order 1(a), it is declared that the records identified in Order 1(a) are privileged.
4In the alternative to Order 3 of these orders, the application under section 151 of the Criminal Investigation Act 2006 be remitted to the Magistrates Court of Western Australia for determination in relation to the records identified in Order 1(a) of the Orders made 17 December 2009.
On the appeal in Application No 10 of 2009
5The appeal be allowed.
6Order 1 of the Magistrates Court of Western Australia at Joondalup made 17 December 2009 be set aside.
7In lieu it is ordered that the file note made by William Carr on 6 August 2007 is privileged.
In both applications
8[AW] pay [Mr Rayney's] costs of the appeal.
The organisation of the balance of these reasons
120It is convenient, first, to consider AW's appeal by reference to his grounds, and then to consider Mr Rayney's appeal by reference to his grounds.
AW's ground of appeal no 1: general
121AW alleges in ground 1 of his appeal that the magistrate erred in law and fact by failing to afford him procedural fairness at the hearing of Mr Rayney's claim of legal professional privilege in respect of the Category 2 Files in Tranche 1.
AW's ground of appeal no 1: the statutory framework and applicable legal principles
122Section 151 of the CIA establishes the procedure for determining a claim of, relevantly, legal professional privilege made in respect of 'records' (as defined in s 3(1) of the CIA) seized or produced in accordance with the CIA. The term 'record' means, relevantly, any record of information, irrespective of how the information is recorded or stored or able to be recovered.
123By s 151(4), where a record is seized or produced and, relevantly, a person entitled to possession of the record claims that all or some of the information in it is privileged, the officer in charge of the investigation must apply to the court to decide whether the information is privileged and must deliver the record into the custody of the court.
124Section 151(9) provides that if the court decides that all of the information is not privileged, the court must make the record available to be collected by the applicant. By s 151(10), if the court decides that all of the information is privileged, the court must make the record available to be collected by the person from whom it was seized. By s 151(11), if the court decides that some of the information is privileged, the court must make orders to enable the applicant to have access to the information in the record that is not privileged.
125Section 151(7) provides that the applicant, and any person entitled to possession of the record, are entitled to be heard on the application for a decision by the court on whether the information is privileged.
126Procedural fairness lies at the heart of the judicial function. As French CJ observed in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 84 ALJR 31:
It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it [54].
127His Honour then noted that, according to the circumstances, the content of the requirements of procedural fairness may vary. He gave, as an example, the procedure that a court may adopt when an ex parte application for interlocutory relief is made:
[T]he court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made [54].
128In International Finance Trust, Heydon J also emphasised that one of the primary principles on which the Australian judicial process operates is that before any judicial decision is made which has substantive consequences there generally should be a 'hearing'. His Honour explained:
A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.
One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi, it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory.
Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome [141] ‑ [143].
129In my opinion, there is no doubt that the magistrate was bound to accord procedural fairness to AW (in particular, an opportunity to be heard) in relation to the determination of the applications under s 151 of the CIA. Section 151(7) conferred on each of Mr Rayney and AW an entitlement to be heard. Section 151 does not modify or abrogate the common law principles of procedural fairness. The relief claimed in the applications, if granted, would have substantive consequences for each of Mr Rayney and AW. The determination of the applications involved the exercise of judicial power, and the proceedings before the magistrate were adversarial in character. The critical point raised by ground 1 of the appeal is the content of the hearing rule in the particular circumstances of this case.
363Ground 2(c) of Mr Rayney's appeal has been made out.
Mr Rayney's ground of appeal no 3
364Mr Rayney alleges, in essence, in relation to ground 3 that the magistrate was in error in holding that the file note dated 6 August 2007, made by Mr Carr at the conference in which a recording was played, was tainted by illegality, and not privileged, if the recording was made in breach of the Surveillance Devices Act.
Mr Rayney's ground of appeal no 3: its merits
365As Gummow J observed in Propend Finance, the law relating to legal professional privilege enables a client to obtain legal advice in respect of his or her illegal conduct. The 'crime/fraud exception' does not apply to a communication between a lawyer and his or her client concerning a document or record that was unlawfully obtained merely because a copy of the unlawfully obtained document or record is submitted by the client to the lawyer for legal advice. The copy may be privileged even though the original is not.
366However, in the present case and on the characterisation of the facts and events which is most favourable to him, Mr Rayney committed the
offence against s 5(1) of the Surveillance Devices Act, and brought the original recording into existence, for the very purpose of enabling him to submit the original or a copy of it to his lawyer for advice. Legal professional privilege is grounded in public policy. It reflects the public interest that confidential communications between lawyer and client should be uninhibited by any fear of disclosure. It would, however, be extraordinary if the privilege extended to protect a communication in the circumstances I have described.
367I am of the opinion that the reasoning of Brennan J in Carter, to which I have referred at [218] above, and the reasoning of Hill J in Carbone, to which I have referred at [289] above, require the conclusion that it would be inimical to the public policy considerations which underpin the law of professional privilege to permit a claim of privilege to be made in respect of the file note made by Mr Carr.
368Ground 3 of Mr Rayney's appeal fails.
Mr Rayney's appeal: conclusions
369Mr Rayney has made out grounds 1 and 2(c) of his appeal. However, the remaining grounds are without merit. The establishment of grounds 1 and 2(c) is insufficient for Mr Rayney to succeed in his appeal against any of the orders made by the magistrate.
370I would therefore dismiss the appeal.
371NEWNES JA: I would allow the appeal by AW for the reasons given by McLure P.
372I would dismiss the appeal by Mr Rayney for the reasons given by McLure P in respect of grounds 1, 2(b) and 2(c), and for the reasons given by Buss JA in respect of grounds 2(a) and 3.
373I agree with the orders proposed by McLure P.
SCHEDULE 1
INFORMATION KNOWN TO AW
CATEGORY 2 FILES
Item No
Information
(known to AW prior to hearing)
Evidence
Items 10 to 29
Located by Expert Court Assistant on CD Rom 3 seized by Police
Spreadsheet of Tranche 1 Files
Items 30 to 51
Located by Expert Court Assistant on computer seized from 6 Monash Ave, Como on 22 August 2007
Spreadsheet of Tranche 1 Files
Item 50 to 73
Located by Expert Court Assistant on computer seized from Francis Burt Chambers on 20 September 2007
Spreadsheet of Tranche 1 Files
Items 74 to 81
Located by Expert Court Assistant on computer seized from 6 Monash Ave, Como on 20 September 2007
Spreadsheet of Tranche 1 Files
Items 52 to 81
Are copies of items 10 to 29 located by the Expert Court Assistant on Mr Rayney's computers
Mr Rayney's affidavit filed on 11 November 2009 (schedule). Magistrates reasons for ruling dated 18 March 2009
Items 10 to 16, 23, 24, 25, 26, 27, 28
Recorded telephone discussions made after 7 August 2007 between Mr Rayney and another person for the purposes of seeking legal advice in respect of potential litigation, use in such potential litigation and seeking legal advice in relation to the discussion.
Mr Rayney's affidavit filed on 11 November 2009 (schedule)
Items 10 to 16, 23, 24, 25, 26, 27, 28
The recordings were made by holding a handheld Dictaphone near Mr Rayney's mobile telephone during the telephone conversation.
Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 32
Items 17 to 21, 29
Recorded telephone messages from a person other than Mr Rayney or Mrs Rayney made after 7 August 2007 for the purposes of seeking legal advice in respect of potential litigation, use in such potential litigation and seeking legal advice in relation to the recording.
Mr Rayney's affidavit filed on 11 November 2009 (schedule)
Items 17 to 21 (not 29)
The recordings were made by holding a handheld Dictaphone near Mr Rayney's mobile telephone and recording messages left on the mobile telephone answering service
Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 33
Items 10 to 29
Were made for the purpose of seeking advice in respect of potential, but known, litigation, using them in any such proceedings and communicating the contents of the recordings to an unknown person by playing them, in order for the unknown person to provide Mr Rayney with legal advice in relation to the conversations.
Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 36
Items 10 to 29
Were copied onto a compact disc in order to seek legal advice in respect of them and so that they could be used in proceedings.
Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 43
Items 10 to 29
The compact disc was kept in Mr Rayney's room in chambers. He did not make any attempt to destroy or conceal the compact disc.
Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 44
The compact disc containing items 10 to 29 was seized by Police on 20 September 2007.
Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 45
Mr Rayney engaged Amanda Blackburn to act on his behalf in August 2007.
Amanda Blackburn's revised affidavit filed on 11 November 2009,
para 4
Amanda Blackburn has the conduct of Applications 3 and 6 of 2007, and also acts for Mr Rayney in respect of his criminal charges and in relation to issues arising from the murder of the Mr Rayney's wife.
Amanda Blackburn's revised affidavit filed on 11 November 2009,
para 1
Mr Rayney did not play the Category 2 File recordings to her.
Amanda Blackburn's revised affidavit filed on 11 November 2009,
para 8
Mr Rayney was taken into police custody as an arrested suspect and he was told that police wish to speak to him in regard to alleged illegal recording of telephone calls and the murder of Mrs Rayney.
Amanda Blackburn's revised affidavit filed on 11 November 2009,
para 11
Items 10 to 29
Mr Rayney made the recordings without the knowledge of the other party or parties to the conversation.
Mr Rayney's Outline of Submissions,
para 21.
Magistrates reasons for ruling dated 18 March 2009
Items 10 to 29
The recordings were created with the lawful purpose of seeking legal advice and for an unknown use.
Mr Rayney's Outline of Submissions,
para 24
Items 10 to 29
Mr Rayney was a principal party to the conversations and was collecting material for the purpose of seeking legal advice and for use as evidence at trial. The collection of the recordings was an act to safeguard his lawful interests.
Mr Rayney's Outline of Submissions,
para 31
Item No
Information
(disclosed to AW during the hearing)
Evidence in Support
Items 10 to 29
Other than for the purposes of Applications 3 and 6 of 2007, Mr Rayney's legal representative had not previously listened to or been provided with the recordings.
Oral evidence of Amanda Blackburn, 19 November 2009 page 6
The only time Mr Rayney sought legal advice from his legal representative in relation to the content of the recordings was after the Expert Court Assistant provided her with a copy of the recordings.
Oral evidence of Amanda Blackburn, 19 November 2009 page 6
Mr Rayney informed his legal representative in September 2007 that he had tape recorded persons described in his affidavit.
Oral evidence of Amanda Blackburn, 19 November 2009 page 8
Mr Rayney used a different Dictaphone to record the conversations at items 10 to 29 to that used to record the conversations between him and Mrs Rayney at items 1 to 9.
Oral evidence of Mr Rayney, 19 November 2009
page 48
Mr Rayney used the same type of Dictaphone to record the conversations at items 10 to 29 to that used to record the conversations between him and Mrs Rayney at items 1 to 9.
Oral Evidence of Mr Rayney, 19 November
page 48
Mr Rayney acquired the Dictaphone used to record the conversations at items 10 to 29 after Mrs Rayney's death.
Oral Evidence of Mr Rayney, 19 November
page 48
The purpose of buying the Dictaphone to record the conversations at items 10 to 29 was for the purpose of seeking legal advice in respect of potential litigation against me in relation to the death of Mrs Rayney and communicating the contents of recordings to Ms Blackburn by playing them to her in order for her to provide me [Mr Rayney] with legal advice in relation to the conversations.
Oral Evidence of Mr Rayney, 19 November
page 53
Mr Rayney threw away the Dictaphone used to make the Category 2 File recordings. He threw it in the same place as the Dictaphone used to make the Category 1 File recordings. He disposed of the Dictaphone after the Police executed the search warrant at his home on 20 September 2007.
Oral Evidence of Mr Rayney, 19 November
page 55
Mr Rayney made the copies of the item 10 to 29 recordings in around mid September 2007
Oral Evidence of Mr Rayney, 19 November
page 55
The Dictaphone was on Mr Rayney's person at the time the search warrants were executed and was on his person during the time the police executed the search warrant at his home on 20 September 2007.
Oral Evidence of Mr Rayney, 19 November
pages 55 and 56
Mr Rayney denied giving his Dictaphone to his legal representatives at the time of the execution of the search warrants.
Oral Evidence of Mr Rayney ,
19 November
page 56
Mr Rayney confirmed that he did not tell the person who he was speaking to that he was recording the conversations.
Oral Evidence of Mr Rayney, 19 November
page 56
Mr Rayney confirmed that at the time the compact discs were seized by police from his chambers (ie the copies of the original recordings) the Dictaphone used to record the original conversations were on his person.
Oral Evidence of Mr Rayney, 19 November
page 57
Item No
Information
(obtained by AW from the Reasons for Decision)
Evidence in Support
Items 10 to 29
Mr Rayney stated the reasons for [an unknown] belief, formed on the basis of events he describes, that police 'intended to unfairly charge him' in relation to Mrs Rayney's murder.
Reasons for Decision para 48
Items 10 to 29
Mr Rayney deposed to [an unknown] belief that the content of the conversations may be relevant to issues that he identifies and that he may wish to raise in answer to any criminal charges.
Reasons for Decision para 48
Amanda Blackburn stated that she had been told by Mr Rayney 'in August and September 2007' that 'police intended to unfairly charge him [in] relation to Mrs Rayney's death', he had used 'a hand held digital Dictaphone near the telephone' to record calls with person he identified to her.
Reasons for Decision para 49
Copies of the original recordings were made by Mr Rayney on the computers at his chambers or his home. The Magistrate inferred that the copying was done by Mr Rayney.
Reasons for Decision para 51
Mr Rayney was endeavouring to 'position himself' so that the contents of the conversation may assist in any hearing.
Reasons for Decision para 53
Mr Rayney reasonably anticipated that he would be subject to criminal charges arising from Mrs Rayney's death
Reasons for Decision para 54
Mr Rayney was in a different position to that described in R v Le [2004] NSWCCA 82.
Reasons for Decision para 60
It was not reasonably practical for Mr Rayney to make notes of the conversations or to seek the assistance of the police.
Reasons for Decision para 60
SCHEDULE 2
The general nature and extent of the redactions
Affidavit of Mr Rayney
the identity of the other party to conversations with Mr Rayney
paragraphs 3(c) and (d) ‑ his Honour subsequently ruled the record referred to in (d) was not privileged
material relating to Mr Rayney's instructions to Mr Carr in anticipated proceedings in the Family Court of Western Australia
paragraphs 10 ‑ 15, part of 16, 17, 18
material relating to Mr Rayney's instruction of Ms Blackburn (her identity was concealed in the affidavit but disclosed at the hearing)
paragraphs 30, 31, 34, 35, parts of 36 and 37, 38, part of 39, 40, 41, 42, 43 (identity subsequently disclosed), and 47
identifying the source of particular records on which Mr Rayney sought legal advice
paragraphs 52 ‑ 54
Affidavit of Mr Carr
the dates on which Mr Rayney sought advice from Mr Carr
paragraphs 5, 6, 12, 14, and 16
particular matters discussed with Mr Carr
paragraphs 7, 8, 9, 13, 14, 15, and 16
Affidavit of Ms Blackburn
the affidavit was redacted to conceal the identity of Ms Blackburn and her firm and when she started acting for Mr Rayney. She was, however, called as a witness
paragraphs 1, 4, 10, and 12 ‑ 14
the discussions between Ms Blackburn and Mr Rayney, including when those discussions occurred
paragraphs 5, 6, 8, and 9
the identity of counsel briefed for Mr Rayney
paragraph 9
the content of records prepared for the purpose of disclosure to the solicitor
paragraph 15
SCHEDULE 3
PART A
Mr Rayney's affidavit sworn 2 February 2009: redacted
36.The recordings in Schedule 3 and 4 were made for the purposes of:
(a)seeking advice in respect of potential litigation REDACTED;
(b)using them in any such proceedings, if it became necessary to do so; and
(c)communicating the contents of recordings to REDACTED by playing them to REDACTED, in order for REDACTED to provide me with legal advice in relation to the conversations.
37.I believed that the recordings in Schedule 3 might be relevant in REDACTED proceedings REDACTED including in respect of REDACTED.
38.REDACTED.
39.I believed that the recordings in Schedule 4 might be relevant REDACTED proceedings REDACTED in respect of whether REDACTED.
40.In relation to the recording of the telephone discussion with REDACTED (ID 12 and ID 13), REDACTED. It was important to have an accurate record of the communications between REDACTED and myself in order to allow REDACTED to hear the content of the discussion, for the reasons set out in paragraph 36.
SCHEDULE 3
PART B
Mr Rayney's affidavit sworn 2 February 2009: unredacted
36.The recordings in Schedule 3 and 4 were made for the purposes of:
(a)seeking advice in respect of potential litigation against me in relation to the death of Mrs Rayney;
(b)using them in any such proceedings, if it became necessary to do so; and
(c)communicating the contents of recordings to Ms Blackburn by playing them to her, in order for her to provide me with legal advice in relation to the conversations.
37.I believed that the recordings in Schedule 3 might be relevant in any criminal proceedings against me in respect of police conduct, whether police had deceived me in the course of their investigation and whether police had conducted a thorough and impartial investigation into Mrs Rayney's death.
38.I was fearful that I would be wrongly charged with the murder of Mrs Rayney. I expressed to my solicitors that I was fearful of 'evidence' being planted in some way to implicate me, and of police 'verballing' me by claiming that I had said something which I did not. The recording of telephone discussions with police ensured I had a record of what was said, to counter any later claim that I had either said something that I had not, or I had not said something which, in fact, I had said.
39.I believed that the recordings in Schedule 4 might be relevant in any criminal proceedings against me in respect of whether police had leaked information regarding their investigation of me to the media.
40.In relation to the recording of the telephone discussion with Alana Buckley-Carr (ID 12 and ID 13), I was concerned that police had worked closely with some members of the media to portray me in an unfavourable light for the purposes of their investigations. Ms Buckley-Carr was not a person from the media whom I knew, and I was concerned that she may have been a person to whom police had leaked information. It was important to have an accurate record of the communications between Ms Buckley-Carr and myself in order to allow Ms Blackburn to hear the content of the discussion, for the reasons set out in paragraph 36.
SCHEDULE 4
Category 2 Files: Summary of Contents
| Document ID | Source | Path and Name | File Name | Description |
| ID000010 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A001 Wed 5.9.07 (17' 27).TSH | A001 Wed 5.9.07 (17' 27).TSH | Parties: Telephone call from Officer Mark MacKenzie (MM) to LR (Lloyd Rayney). MM asking about obtaining signature of LR and his children on statements. LR asking questions about progress on identified lines of investigation. LR complains about MM conduct in his capacity as 'victim liason office', noting request has been made that MM be replaced. MM disputes complaints and says LR request denied. |
| ID000011 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A002 Wed 5.9.07 (23' 53).TSH | A002 Wed 5.9.07 (23' 53).TSH | Parties: Telephone call from Officer Carlos Careira (CC) to LR. CC introduces himself as 'running the investigation'. LR lists complaints about MM conduct as 'victim liason officer' and requests replacement. Discussion ensues. CC denies request. |
| ID000012 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A003 Wed 5.9.07 (0' 16).TSH | A003 Wed 5.9.07 (0' 16).TSH | Parties: Telephone call from Alana Buckley-Carr (ABC) ('The Australian') to LR. ABC introduces herself and recording stops. |
| ID000013 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A004 Wed 5.9.07 (0' 40) Alana Aust Newspaper.TSH | A004 Wed 5.9.07 (0' 40).TSH Alana Aust Newspaper.TSH | Parties: Telephone call from Alana Buckley-Carr (ABC) ('The Australian') and LR. Recording commences after conversation has commenced. LR states that he does not wish to say anything and that he is not aware whether CR sister or father wish to say anything. |
| ID000014 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A005 Thu 6.9.07 (0' 56) Mark MacKenzie.TSH | A005 Thu 6.9.07 (0' 56) Mark MacKenzie.TSH | Parties: Telephone call from LR to Officer Mark MacKenzie (MM). MM complains about 'feedback' and LR says he will call on 'landline'. |
| ID000015 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A006 Thu 6.9.07 (19' 52) Mark MacKenzie.TSH | A006 Thu 6.9.07 (19' 52) Mark MacKenzie.TSH | Parties: Telephone call from LR to Officer Mark MacKenzie (MM). MM agrees that better quality line. MM updating LR on lines of investigation. MM advises LR that police want to speak to LR to 'expand' on his statement and to interview LR children. Discussion about whether statements are 'evidence'. LR says he will consider request. |
| ID000016 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A007 Fri 7.9.07 (2' 56) Paul Robinson.TSH | A007 Fri 7.9.07 (2' 56) Paul Robinson.TSH | Parties: Telephone call from Officer Paul Robinson (PR) to LR. PR arrange for LR to collect his personal documents and statement of his daughter, Sarah, from police. |
| ID000017 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A008 Mon 10.9.07 (0' 38) M MacKenzie message.TSH | A008 Mon 10.9.07 (0' 38) M MacKenzie message.TSH | Recording of advice that telephone message received followed by a recorded message. Unable to identify parties or contents because of distortion, except able to discern phrase 'expand on your statement'. |
| ID000018 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A009 Wed 5.9.07 (0' 35) M MacKenzie message.TSH | A009 Wed 5.9.07 (0' 35) M MacKenzie message.TSH | Recording of advice that telephone message received followed by a recorded message. Unable to identify parties or contents because of distortion. |
| ID000019 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A011 Thu 6.9.07 (1' 02) message.TSH | A011 Thu 6.9.07 (1' 02) message.TSH | Recording of advice that telephone message received followed by a recorded message. Unable to identify parties or contents because of distortion. |
| ID000020 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A012 Mon 10.9.07 (23' 26) Mark MacKenzie.TSH | A012 Mon 10.9.07 (23'26) Mark MacKenzie.TSH | Parties: Telephone call from LR to Officer Mark McKenzie (MM). MM updating LR on lines of investigation. LR requesting return of some documents. MM request to meet LR to 'expand on statement' over 'a couple of hours'. LR asks MM to identify areas to be covered. LR asks who will conduct interview. Discussion about whether a video of interview is preferable. LR questions relevance of some areas identified by LR. |
| ID000021 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A014 Tue 11.9.07 (0' 23) M MacKenzie message.TSH | A014 Tue 11.9.07 (0' 23) M MacKenzie message.TSH | Recording of advice that telephone message received followed by a recorded message from Officer McKenzie requesting his call be returned. |
| ID000022 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A015 Tue 12.9.07 (0' 38) M MacKenzie message.TSH | A015 Tue 12.9.07 (0' 38) M MacKenzie message.TSH | Identical to ID21. |
| ID000023 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A016 Wed 12.9.07 (2' 55) Mark MacKenzie.TSH | A016 Wed 12.9.07 (2' 55) Mark MacKenzie.TSH | Parties: Telephone call from LR to Officer Mark McKenzie (MM). Arrange for LR to meet MM at LR office on Friday (14/9/07) regarding LR statement. LR notes 'my family is unhappy' with your role as victim support officer. |
| ID000024 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A017 Wed 12.9.07 (1' 39) Mark MacKenzie.TSH | A017 Wed 12.9.07 (1' 39) Mark MacKenzie.TSH | Parties: Telephone call from Officer Mark McKenzie (MM) to LR. LR clarifys that 'family' who is unhappy with MM is LR and his children. Discussion who conduct interview. |
| ID000025 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A018 Thu 13.9.07 (2' 07) Mark MacKenzie.TSH | A018 Thu 13.9.07 (2' 07) Mark MacKenzie.TSH | Parties: Telephone call from LR to Officer Mark McKenzie (MM). At LR request, reschedule appointment with MM from Friday (14/9/07) to following Tuesday (18/9/07). |
| ID000026 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A019 Tue 18.9.07 (0' 35) Mark MacKenzie.TSH | A019 Tue 18.9.07 (0' 35) Mark MacKenzie.TSH | Parties: Telephone call from LR to Officer Mark McKenzie (MM). LR states that he calling to cancel appointment and will not re‑schedule. |
| ID000027 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A020 Tue 18.9.07 (0' 26) M MacKenzie message.TSH | A020 Tue 18.9.07 (0' 26) M MacKenzie message.TSH | Recording of advice that telephone message received followed by a recorded message from Officer McKenzie requesting his call be returned. |
| ID000028 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A021 Tue 18.9.07 (1' 10) Mark MacKenzie.TSH | A021 Tue 18.9.07 (1' 10) M MacKenzie.TSH1 | Parties: Telephone call from Officer Mark McKenzie (MM) to LR. MM confirming LR not giving statement and asks whether LR daughters will be giving statement. LR says will call back. |
| ID000029 | CD-ROM 3-697D4 - Order H | (1) 070918_1509\A022 Tue 18.9.07 Carlos Careira.TSH | A022 Tue 18.9.07 Carlos Careira.TSH1 | Recording of recorded telephone message from Officer Careira requesting his call be returned. |
| ID000052 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A001 Wed 5.9.07 (17' 27).TSH | A001 Wed 5.9.07 (17' 27).TSH1 | Identical to ID10 |
| ID000053 | PC CNOUC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A002 Wed 5.9.07 (23' 53).TSH | A002 Wed 5.9.07 (23' 53).TSH1 | Identical to ID11 |
| ID000054 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A003 Wed 5.9.07 (0' 16).TSH | A003 Wed 5.9.07 (0' 16).TSH1 | Identical to ID12 |
| ID000055 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A004 Wed 5.9.07 (0' 40) Alana Aust Newspaper.TSH | A004 Wed 5.9.07 (0' 40) Alana Aust Newspaper.TSH1 | Identical to ID13 |
| ID000056 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A005 Thu 6.9.07 (0' 56) Mark MacKenzie.TSH | A005 Thu 6.9.07 (0' 56) Mark MacKenzie.TSH1 | Identical to ID14 |
| ID000057 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A006 Thu 6.9.07 (19' 52) Mark MacKenzie.TSH | A006 Thu 6.9.07 (19' 52) Mark MacKenzie.TSH1 | Identical to ID15 |
| ID000058 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A007 Fri 7.9.07 (2' 56) Paul Robinson.TSH | A007 Fri 7.9.07 (2' 56) Paul Robinson.TSH1 | Identical to ID16 |
| ID000059 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A008 Mon 10.9.07 (0' 38) M MacKenzie message.TSH | A008 Mon 10.9.07 (0' 38) M MacKenzie message.TSH1 | Identical to ID17 |
| ID000060 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A009 Wed 5.9.07 (0' 35) M MacKenzie message.TSH | A009 Wed 5.9.07 (0' 35) M MacKenzie message.TSH1 | Identical to ID18 |
| ID000061 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A011 Thu 6.9.07 (1' 02) message.TSH | A011 Thu 6.9.07 (1' 02) message.TSH1 | Identical to ID19 |
| ID000062 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A012 Mon 10.9.07 (23' 26) Mark MacKenzie.TSH | A012 Mon 10.9.07 (23' 26) Mark MacKenzie.TSH1 | Identical to ID20 |
| ID000063 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A014 Tue 11.9.07 (0' 23) M MacKenzie message.TSH | A014 Tue 11.9.07 (0' 23) M MacKenzie message.TSH1 | Identical to ID21 |
| ID000064 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A015 Tue 12.9.07 (0' 38) M MacKenzie message.TSH | A015 Tue 12.9.07 (0' 38) M MacKenzie message.TSH1 | Identical to ID22 |
| ID000065 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A016 Wed 12.9.07 (2' 55) Mark MacKenzie.TSH | A016 Wed 12.9.07 (2' 55) Mark MacKenzie.TSH1 | Identical to ID23 |
| ID000066 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A017 Wed 12.9.07 (1' 39) Mark MacKenzie.TSH | A017 Wed 12.9.07 (1' 39) Mark MacKenzie.TSH1 | Identical to ID24 |
| ID000067 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A018 Thu 13.9.07 (2' 07) Mark MacKenzie.TSH | A018 Thu 13.9.07 (2' 07) Mark MacKenzie.TSH.TSH1 | Identical to ID25 |
| ID000068 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A019 Tue 18.9.07 (0' 35) Mark MacKenzie.TSH | A019 Tue 18.9.07 (0' 35) Mark MacKenzienzie.TSH.TSH1 | Identical to ID26 |
| ID000069 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A020 Tue 18.9.07 (0' 26) M MacKenzie message.TSH | A020 Tue 18.9.07 (0' 26) M MacKenzie message.TSH1 | Identical to ID27 |
| ID000070 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A021 Tue 18.9.07 (1' 10) Mark MacKenzie.TSH | A021 Tue 18.9.07 (1' 10) Mark MacKenzie.TSH1 | Identical to ID28 |
| ID000071 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\My Voice\A022 Tue 18.9.07 Carlos Careira.TSH | A022 Tue 18.9.07 Carlos Careira.TSH1 | Identical to ID29 |
| ID000072 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\RECYCLER\S-1-5-21-570604633-4097804719-1471561500-1006\A001.TSH | A001.TSH1 | Last part is identical to ID23. Distortion at start. |
| ID000073 | PC CN0UC28370821-54U64DO-HDD 5JVMN4AX - Order C | D:\RECYCLER\S-1-5-21-570604633-4097804719-1471561500-1006\A010 (0' 24) M MacKenzie message.TSH | A010 (0' 24) M MacKenzie message.TSH1 | Distortion throughout recording. Unable to identify parties. |
| ID000075 | PC SNo AUD64904b4 - Order B | D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\10 Fri 7.9.07 Paul Robinson.TSH | 10 Fri 7.9.07 Paul Robinson.TSH1 | Identical to 16 |
| ID000076 | PC SNo AUD64904b4 - Order B | D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\11 Mon 10.9.07 Mark MacKenzie.TSH | 11 Mon 10.9.07 Mark MacKenzie.TSH1 | Identical to 17 |
| ID000077 | PC SNo AUD64904b4 - Order B | D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\12 Mon 10.9.07 Mark MacKenzie.TSH | 12 Mon 10.9.07 Mark MacKenzie.TSH1 | Identical to 20. Distortion at start. |
| ID000078 | PC SNo AUD64904b4 - Order B | D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\5 Wed 5.9.07 Mark MacKenzie.TSH | 5 Wed 5.9.07 Mark MacKenzie.TSH1 | Identical to 18. |
| ID000079 | PC SNo AUD64904b4 - Order B | D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\6 Thu 6.9.07 Mark MacKenzie.TSH | 6 Thu 6.9.07 Mark MacKenzie.TSH1 | Recording of recorded telephone message from Officer McKenzie. |
| ID000080 | PC SNo AUD64904b4 - Order B | D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\7 Thu 6.9.07 Mark MacKenzie.TSH | 7 Thu 6.9.07 Mark MacKenzie.TSH1 | Recording of recorded telephone message; parties unclear. |
| ID000081 | PC SNo AUD64904b4 - Order B | D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\9 Thu 6.9.07 Mark MacKenzie.TSH | 9 Thu 6.9.07 Mark MacKenzie.TSH1 | Identical to 15. |
SCHEDULE 5
Summary of the principal allegations made by Mrs Rayney against Mr Rayney
The principal allegations made by Mrs Rayney against Mr Rayney in the emails passing between them during May, June and July 2007 were as follows:
(a)Mr Rayney had not been attending to family obligations in relation to the children because he was 'forgetting' or 'busy'.
(b)Mr Rayney had not behaved 'honourably' because he had not informed Mrs Rayney of a medical procedure involving his father.
(c)Mr Rayney had not been making a fair contribution towards family expenses, and had been 'stashing away' money, unbeknown to Mrs Rayney, for a long time.
(d)Mr Rayney was being deceitful, evasive and obstructive in relation to family matters. He had perfected the art of being 'sly and evasive' over many years.
(e)Mr Rayney had been 'aggressive and abusive' to Mrs Rayney in front of their children.
(f)Mrs Rayney demanded that Mr Rayney not fall asleep with their younger daughter in the daughter's bed or 'find himself' in the bathroom, when she was showering.
SCHEDULE 6
The file note dated 6 August 2007 made by Mr Carr
Lloyd Rayney attended the office on 6 August 2007 in response to his request for an urgent appointment. He came armed with some tapes of recordings with his wife in which she made certain threats about doing physical harm to him. I suggested to him that she was simply venting her anger and there was nothing much in them.
He also said that he would be available to attend counselling and would let me have his available dates depending upon his commitments with the CCC.
WMC
25
73
2