AW v Rayney [No 5]
[2012] WASCA 259
•7 DECEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AW -v- RAYNEY [No 5] [2012] WASCA 259
CORAM: BUSS JA
HEARD: 17 SEPTEMBER 2012
DELIVERED : 17 SEPTEMBER 2012
PUBLISHED : 7 DECEMBER 2012
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 M M FLYNN
File No :SJA 1009 of 2010, SJA 1011 of 2010
Catchwords:
Practice and procedure - Application by non-party for leave to copy affidavits filed in earlier proceedings in the court - Whether in the interests of justice for the application to be granted - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 11(1)(d)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5
Result:
Leave granted to take copies of affidavits filed at the Court of Appeal Office
Category: B
Representation:
CACR 22 of 2010
Counsel:
Appellant: Mr J F O'Sullivan
Respondent: Mr A G Elliott
Non-party: Mr J V Agius QC & Mr D W Renton
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Timpano Legal
Non-party: Director of Public Prosecutions (NSW)
CACR 23 of 2010
Counsel:
Appellant: Mr A G Elliott
Respondent: Mr J F O'Sullivan
Non-party: Mr J V Agius QC & Mr D W Renton
Solicitors:
Appellant: Timpano Legal
Respondent: State Solicitor for Western Australia
Non-party: Director of Public Prosecutions (NSW)
Case(s) referred to in judgment(s):
AW v Rayney [2010] WASCA 161
AW v Rayney [No 4] [2012] WASCA 117
BUSS JA: On 14 September 2012, the solicitors for the non‑party, the State of Western Australia, applied under O 67 r 11(1)(d) of the Rules of the Supreme Court 1971 (WA) (RSC), read with r 5 of Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules), for leave to inspect and take copies of certain documents filed at the Court of Appeal Office in CACR 22 of 2010 and CACR 23 of 2010.
By O 67 r 11(1)(d) of the RSC, read with r 5 of the Court of Appeal Rules, relevantly, '[a]ny person shall … be entitled during office hours [with the leave of the Court or a Registrar] to … inspect and take a copy of [any document filed at the Court of Appeal Office]'.
On 17 September 2012, after hearing from counsel for the State, counsel for AW (the appellant in CACR 22 of 2010 and the respondent in CACR 23 of 2010) and counsel for Mr Rayney (the respondent in CACR 22 of 2010 and the appellant in CACR 23 of 2010), I made the following orders:
1.Copies of:
(a)this court's copy of the unredacted affidavit of Lloyd Patrick Rayney sworn 2 February 2009 in connection with two applications under s 151 of the Criminal Investigation Act 2006 (WA), and this court's copy of any redacted version of that affidavit; and
(b)this court's copy of the affidavit of Mr Rayney sworn 12 November 2009 in connection with those applications,
are to be made available by a Registrar of the court to the lawyers representing the State in the Supreme Court wilful murder trial against Mr Rayney.
2.The Registrar is to certify the copies of this court's copies in accordance with s 80 of the Evidence Act 1906 (WA).
3.Subject to any ruling by the trial judge as to admissibility or otherwise, the State may use the certified copies made available by the Registrar in connection with the Supreme Court wilful murder trial.
When I made those orders I said I would publish reasons for decision later. These are my reasons.
The background facts and circumstances to the State's application are set out in the reasons of the court in AW v Rayney [2010] WASCA 161 and AW v Rayney [No 4] [2012] WASCA 117.
The State sought copies of the affidavits in question for use or possible use in the criminal trial of Mr Rayney on a charge of wilful murder which was then in progress in the Supreme Court.
Counsel for Mr Rayney neither consented to nor opposed the making of orders in accordance with the State's application.
The State's application was made for a proper purpose. It had a legitimate interest in taking copies of the relevant affidavits and using them in or in connection with the Supreme Court trial. I was satisfied that there was no reason why the court's leave should not be granted and that it was in the interests of justice for the orders to be made.
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