AW v Rayney [No 2]

[2010] WASCA 221

AW -v- RAYNEY [No 2] [2010] WASCA 221

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 221
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:22/2010	Heard:	23 SEPTEMBER 2010
Coram:	BUSS JA NEWNES JA	Delivered:	24/09/10
No of pages:	7	Judgment Part:	1 of 1
Result:	Variations made to order
Category:	B
PDF Version

Parties:	AW LLOYD PATRICK RAYNEY
Catchwords:	Appeal Orders made upon allowing the appeal Variation of suppression order pursuant to liberty to apply Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AW -v- RAYNEY [No 2] [2010] WASCA 221 CORAM : BUSS JA

NEWNES JA

HEARD : 23 SEPTEMBER 2010 DELIVERED : 24 SEPTEMBER 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:

Appeal - Orders made upon allowing the appeal - Variation of suppression order pursuant to liberty to apply - Turns on own facts

Legislation:

Nil

Result:

Variations made to order

Category: B

Representation:

CACR 22 of 2010

Counsel:

Appellant : Mr G T W Tannin SC & Ms D Scaddan
Respondent : Ms L B Black

Intervener : Mr A V McCarthy

Solicitors:

Appellant : State Solicitor for Western Australia
Respondent : D G Price & Co

Intervener : Mr A V McCarthy

CACR 23 of 2010

Counsel:

Appellant : Ms L B Black
Respondent : Mr G T W Tannin SC & Ms D Scaddan

Intervener : Mr A V McCarthy

Solicitors:

Appellant : D G Price & Co
Respondent : State Solicitor for Western Australia

Intervener : Mr A V McCarthy

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

Nil

1 BUSS JA: This is an application by AW, who is the appellant in CACR 22 of 2010 and the respondent in CACR 23 of 2010.

2 The application is supported by an affidavit of Dianne Patricia Scadden sworn 14 September 2010.

3 In the application, AW seeks a variation of the orders made by this court on 6 August 2010 in CACR 22 of 2010.

4 Order 7 of those orders provides that:

No person or entity is to communicate or publish to any other person or entity any of the reasons for decision of this court in appeals CACR 22 of 2010 and CACR 23 of 2010 until further order of this court,

subject to certain exceptions specified in sub-pars (a) to (d) of that order.

5 The orders wanted by AW are:

(a) order 7 of the orders made 6 August 2010 be cancelled;

(b) in the alternative, order 7 be varied to read as follows:


Publication of the reasons for decision in AW v Rayney [2010] WASCA 161 is prohibited in the media;

(c) in the further alternative, order 7 be varied to read as follows:

No person or entity is to publish any of the reasons for decision in AW v Rayney [2010] WASCA 161, except the reasons may be published to any legal practitioner, any police officer, any court and any tribunal or professional regulatory or disciplinary body.

6 I am satisfied that order 7 of the orders made 6 August 2010 should not be cancelled. I consider, however, that order 7 should be varied, but not to the extent sought by AW. I have prepared a minute dated 24 September 2010, which I have made available to counsel this morning, which sets out the variations which, in my view, should be made. In summary those variations are:

(a) in par (c) of order 7, the insertion of the words 'from time to time' after the word 'instructed';

(b) in par (d) of order 7, the insertion of the words 'from time to time' after the word 'instructed'; and

(c) the addition of new paras (e), (f), (g) and (h), which provide four further exceptions from the suppression order, as follows:


(e) the Chief Justice of Western Australia and any judicial officer who has been listed to hear or is hearing in the Supreme Court any interlocutory, final or other hearing concerning the pending Supreme Court defamation action commenced by Lloyd Patrick Rayney or the trial of that action;

(f) any counsel or solicitors who have been retained or instructed from time to time to act for any party to that Supreme Court defamation action;

(g) the Chief Judge of the District Court and any judicial officer who has been listed to hear or is hearing in the District Court any interlocutory, final or other hearing concerning the pending District Court criminal proceedings against Lloyd Patrick Rayney or the trial of Mr Rayney in connection with those proceedings; or

(h) any counsel or solicitors who have been retained or instructed from time to time to act for the Crown or Mr Rayney in connection with those pending District Court criminal proceedings,

7 My reasons for refusing to cancel order 7, and for refusing to vary the order to the extent sought by AW, are as follows.

8 First, there are pending criminal proceedings against Mr Rayney in the District Court. There is a real analogy between the subject matter of those proceedings and a material part of the subject matter of CACR 22 of 2010 and CACR 23 of 2010. I consider that the public interest in ensuring that Mr Rayney has a fair trial in the District Court outweighs the public interest in publishing generally, or to a greater extent, the reasons for decision. There would be a substantial risk of prejudice to Mr Rayney in the District Court trial from publication generally or to a greater extent.

9 Secondly, the material before this court indicates that a hearing date for the pending District Court trial is likely to be fixed at the next appearance before the Chief Judge of the District Court on 19 October 2010. The trial is likely to be scheduled for the early part of 2011. There is no basis in the material before this court to anticipate any further delay in the trial being listed or disposed of.

10 Thirdly, the factual foundation for the making of the suppression order, including the form of the order and the extent of the exceptions to it, is to be found in the papers and other information that were before this court when the substantive appeals in CACR 22 of 2010 and CACR 23 of 2010 were heard, the character of the offence or offences alleged against Mr Rayney in the District Court proceedings, and the general knowledge of all superior courts as to the potential prejudice of pre-trial publicity especially where, as in this case, there has already been significant pre-trial publicity and the proceedings are likely to be tried in the relatively near future.

11 Fourthly, although the reasons for decision of this court deal with some matters of general public importance, I expect, on the material before this court, that there would be a proper basis for publishing those reasons generally upon the completion of the District Court trial. It is reasonable to anticipate, on the matters known to the court at this stage, that the reasons should be able to be published generally in less than six months.

12 Fifthly, I am not persuaded that it is necessary or desirable, at this stage and in the context of the pending criminal proceedings against Mr Rayney, for more extensive publication of the reasons, as proposed by AW in the alternative, or in the further alternative, to his primary claim of cancellation.

13 Sixthly, this court has ruled that the tranche 1 documents are not protected by legal professional privilege and those documents may be sought and obtained in the ordinary way by any law enforcement agency in the course of any investigations which it is undertaking.

14 Seventhly, the additional exceptions that I propose be made to order 7 will facilitate the administration of justice in the context of:

(a) any application by the Crown in the pending District Court criminal proceedings to adduce propensity evidence at the trial pursuant to s 31A of the Evidence Act; and

(b) the continuing obligation of Mr Rayney in the Supreme Court defamation action to provide discovery of any and all relevant documents, and inspection of those documents which are not properly the subject of, relevantly, a claim of legal professional privilege.

15 For these reasons, AW's application should be granted to the extent I have mentioned and set out in the minute of 24 September 2010, but it should otherwise be dismissed.

16 Finally, I should state that I am not persuaded that Mr McCarthy, who appeared with leave for West Australian Newspapers Limited, should be provided, at this stage, with a copy of the reasons for decision. He did not apply to be provided with a copy until after the completion of the oral argument yesterday. There is no pending or foreshadowed application which, in fairness, requires the provision to him of a copy of the reasons.

17 NEWNES JA: I agree with Buss JA.