Legal Profession Complaints Committee and Rayney [No 2]
[2018] WASAT 5
•14 MAY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [No 2] [2018] WASAT 5
MEMBER: JUSTICE P MARTINO (SUPPLEMENTARY PRESIDENT)
MS S GILLETT (MEMBER)
MR H DEMBO (SENIOR SESSIONAL MEMBER)
HEARD: 5, 6, 7 AND 13 DECEMBER 2017
DELIVERED : 25 JANUARY 2018
PUBLISHED : 14 MAY 2018
FILE NO/S: VR 173 of 2015
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
LLOYD PATRICK RAYNEY
Respondent
Catchwords:
Legal practitioner - Allegations of professional misconduct - Whether practitioner knowingly contravened Surveillance Devices Act 1998 (WA) in recording conversations with his wife - Whether practitioner knowingly gave false evidence - Whether conduct constituted professional misconduct
Legislation:
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 403(1), s 403(1)(b), s 428, s 438(1), s 622, Pt 13
State Administrative Tribunal Act 2004 (WA), s 32
Surveillance Devices Act 1998 (WA), s 5
Telecommunications (Interception and Access) Act 1979 (Cth)
Result:
Practitioner found to have engaged in professional misconduct
Summary of Tribunal's decision:
In 2007, the respondent recorded conversations with his wife. In 2009, in proceedings in the Magistrates Court, the respondent gave evidence in an affidavit and orally that he had recorded the conversations to obtain a record that an insinuation made by his wife was untrue and that the recordings were made with his wife's knowledge and consent. He also gave evidence orally that he had copied all of the conversations that he had recorded on a dictaphone onto a compact disc.
The applicant contended that the recordings were not made for the purpose of obtaining a record that an insinuation made by the respondent's wife was untrue, that the recordings were not made with the respondent's wife's knowledge or consent and that in making them the respondent had contravened the Surveillance Devices Act 1998 (WA). The applicant contended the respondent's evidence in the Magistrates Court, that he had recorded the conversations to obtain a record that an insinuation made by his wife was untrue, that the recordings were made with his wife's knowledge and consent and that he had copied all of the conversations that he had recorded on a dictaphone onto a compact disc was false and was given by the respondent knowing the evidence was false with the intention of misleading the court.
The Tribunal found that the recordings were not made for the purpose of obtaining a record that an insinuation made by the respondent's wife was untrue. The Tribunal found that in making the recordings the respondent contravened the Surveillance Devices Act. The Tribunal found that the applicant had not established that the respondent's oral evidence that he had copied all of the conversations that he had recorded on a dictaphone onto a compact disc was untrue. The Tribunal found that the respondent's evidence as to the purpose for which he had recorded conversations with his wife and his evidence that the recordings were made with his wife's knowledge and consent was false, that it was given by the respondent knowing that it was false and with the intention of misleading the court. The Tribunal found that in making those recordings and giving that false evidence the respondent had engaged in professional misconduct.
Category: B
Representation:
Counsel:
| Applicant | : | Mr JC Vaughan SC and Mr TJ Porter |
| Respondent | : | Mr ML Bennett |
Solicitors:
| Applicant | : | Legal Profession Complaints Committee |
| Respondent | : | Bennett + Co |
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
AW v Rayney [2010] WASCA 161
AW v Rayney [No 4] [2012] WASCA 117
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chao v Chao [2008] NSWSC 584
Fidock v Legal Profession Complaints Committee [2013] WASCA 10
Gandini v Legal Profession Complaints Committee [2013] WASCA 168
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72
Howes v The Law Society of Tasmania [1998] TASSC 112
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37
Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20
R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Seeley International Pty Ltd v Jeffrey [2013] VSCA 288
Sepulveda v The Queen [2006] NSWCCA 379
Sudath v Health Care Complaints Commission [2012] NSWCA 171; (2012) 84 NSWLR 474
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Thomas v Nash [2010] SASC 153; (2010) 107 SASR 309
Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
REASONS FOR DECISION OF THE TRIBUNAL
Introduction
The applicant (LPCC) applies for an order that the Tribunal, pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (2008 Act), make a finding that the respondent, Mr Lloyd Patrick Rayney (Mr Rayney) has engaged in professional misconduct, consequential orders and costs. The application is a referral of a matter to the Tribunal under s 428 of the 2008 Act. Section 438 of the 2008 Act confers jurisdiction on the Tribunal to make a finding that a legal practitioner has engaged in professional misconduct.
The grounds of the application
The LPCC relies upon three grounds for its application. Those grounds, which are contained in its Amended Substituted Grounds and Statement of Facts and Contentions (GSFC), are:
Ground 1
Between about April 2007 and 7 August 2007 [Mr Rayney] engaged in professional misconduct within the meaning of the [2008 Act] by recording conversations between himself and his then wife, Corryn Rayney (Mrs Rayney), on a hand held recording device, namely, a dictaphone, without the knowledge or consent of Mrs Rayney, in contravention of s 5(1) of the Surveillance Devices Act [1998] (WA), where:
(1)there had been an acrimonious breakdown, and there were substantial and ongoing difficulties, in the matrimonial relationship between [Mr Rayney] and Mrs Rayney; further or alternatively
(2)[Mr Rayney] knew, or alternatively was recklessly indifferent as to whether, he was acting unlawfully.
Ground 2
On 2 February 2009, in the circumstances specified in Ground 1 above, [Mr Rayney] engaged in professional misconduct within the meaning of the [2008 Act] by swearing an affidavit (February Affidavit) to be read in application 3 & 6 of 2007 in the Magistrates Court of Western Australia at Perth in which [Mr Rayney] gave evidence on oath as particularised below when [Mr Rayney] knew, or alternatively [Mr Rayney] was recklessly indifferent to whether, the evidence was false, doing so with the intention of misleading the Magistrates Court of Western Australia as to the matters the subject of the evidence.
Particulars of Evidence
(1)Mrs Rayney having, by an email dated 13 July 2007, made an insinuation against [Mr Rayney] which was entirely untrue, recordings of conversations between [Mr Rayney] and Mrs Rayney were made by [Mr Rayney] on a dictaphone in an attempt to create a record that the insinuation was false, for the purpose of seeking legal advice and for use of the record in litigation.
(2)When [Mr Rayney] recorded on the dictaphone conversations between himself and Mrs Rayney that were in person:
(a)[Mr Rayney] placed the dictaphone in a clearly visible position which was unobstructed by any objects, so that it could record what Mrs Rayney and [Mr Rayney] said;
(b)the dictaphone was visible to both [Mr Rayney] and Mrs Rayney; and
(c)Mrs Rayney was aware that the dictaphone was recording the conversation between [Mr Rayney] and Mrs Rayney.
(3)When [Mr Rayney] recorded on the dictaphone conversations between him and Mrs Rayney that were telephone conversations, during the telephone conversations, and prior to the recordings, Mrs Rayney was made aware that the telephone call would be recorded.
(4)The recordings on the dictaphone of the conversations between [Mr Rayney] and Mrs Rayney, as were later copied to a compact disc, were made by [Mr Rayney] with the full knowledge and consent of Mrs Rayney.
Ground 3
On 19 November 2009, in the circumstances specified in Ground 1 above, [Mr Rayney] engaged in professional misconduct within the meaning of the [2008 Act] by giving evidence on oath before Magistrate Flynn in the Magistrates Court of Western Australia as particularised below when [Mr Rayney] knew, or alternatively [Mr Rayney] was recklessly indifferent to whether, the evidence was false, doing so with the intention of misleading the Magistrates Court of Western Australia as to the matters the subject of the evidence.
Particulars of Evidence
(1)The contents of the February Affidavit were true and correct.
(2)Mrs Rayney had agreed and consented to [Mr Rayney] recording conversations between [Mr Rayney] and Mrs Rayney on a dictaphone.
(3)[Mr Rayney] copied all of the conversations between [Mr Rayney] and Mrs Rayney that had been recorded on the dictaphone to a compact disc; and that disc was in the custody of the court.
(4)[Mr Rayney] told Mrs Rayney he was going to record certain telephone conversations between [Mr Rayney] and Mrs Rayney before doing so.
(5)When [Mr Rayney] recorded conversations between [Mr Rayney] and Mrs Rayney that were in person the dictaphone on which the conversations were recorded was in view of where Mrs Rayney was and was not concealed.
Ground 1 - the particulars of the conversations recorded
In par 22 of its GSFC the LPCC contends that Mr Rayney recorded at least seven conversations between himself and Mrs Rayney that occurred prior to 17 April 2007 on a dictaphone. It provides particulars of and transcripts of those conversations, which it calls Audio Recording No 1 to Audio Recording No 7. The seven conversations were copied onto a compact disc, along with two other recordings for which no particulars or transcripts are provided. The two conversations for which no particulars or transcripts were provided were not relied upon by the LPCC in the application.
Section 5(1) of the Surveillance Devices Act 1998 (WA) prohibits the recording of private conversations, subject to subsections (2) and (3). The LPCC contends that the seven conversations for which it provided particulars, as well as other conversations with Mrs Rayney recorded by Mr Rayney, were private conversations within the meaning of that term in the Surveillance Devices Act, that they were made without Mrs Rayney's consent and that the recording was not reasonably necessary for the protection of Mr Rayney's lawful interests.
Mr Rayney's response to the LPCC's particulars of the conversations in Ground 1
Mr Rayney agrees that he recorded nine conversations between himself and Mrs Rayney, seven of which are particularised in par 22 of the LPCC's GSFC and the other two of which are the other two recordings contained on the compact disc referred to in par 22 of the LPCC's GSFC. He does not recall whether there were nine separate conversations and says that it may be that one or more of the recordings is part of the same conversation.
Mr Rayney accepts that the dictaphone on which he recorded the conversations was a listening device within the meaning of that term in the Surveillance Devices Act.
Mr Rayney accepts that the substance of the seven conversations for which there are transcripts in the LPCC's GSFC are as contained in those transcripts, save for minor corrections.
Mr Rayney accepts that five of the seven conversations particularised in par 22 of the LPCC's GSFC were private conversations but denies that two conversations were private conversations. Mr Rayney contends that each of those two conversations was not a private conversation because it was conducted in the presence of children and was carried on in circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
He does not admit that the recordings were made in the period between April 2007 and 7 August 2007, but says that they were made in or about April 2007 and before 17 April 2007. Mr Rayney denies that the recordings were made without Mrs Rayney's consent. He also contends that the recordings were made to protect his lawful interests.
Ground 2 - the allegations of the LPCC concerning the affidavit of 2 February 2009
The LPCC contends that each one of the statements particularised in Ground 2 was false in that:
(1)The recordings of conversations between Mr Rayney and Mrs Rayney contained on the compact disc occurred prior to 17 April 2007 and were not made by Mr Rayney in an attempt to create a record that the insinuation contained in Mrs Rayney's email dated 13 July 2007 was false.
(2)When recording the conversations made in person:
(a)Mr Rayney did not place the dictaphone in a clearly visible position which was unobstructed by any objects so that it could record what Mrs Rayney and Mr Rayney said;
(b)the dictaphone was not visible to both Mr Rayney and Mrs Rayney; and
(c)Mrs Rayney was not aware that the dictaphone was recording. The LPCC contends that when the conversations in person were recorded the dictaphone was concealed on Mr Rayney.
(3)For the recording of the conversations which were telephone conversations, Mrs Rayney was not made aware that the telephone call would be recorded by Mr Rayney during the telephone conversation and prior to the recording.
(4)The recordings of the conversations between Mr Rayney and Mrs Rayney on the dictaphone were made by Mr Rayney without the knowledge or consent of Mrs Rayney.
The LPCC also contends that at the time Mr Rayney swore the affidavit on 2 February 2009 Mr Rayney knew that the statements were false or he was recklessly indifferent to whether the statements were true or false.
The response of Mr Rayney to the LPCC allegations concerning the 2 February 2009 affidavit
Mr Rayney accepts that his statement in the affidavit of 2 February 2009 that the recordings on the compact disc were made in an attempt to create a record that the insinuation made in Mrs Rayney's email of 13 July 2007 was false is incorrect. He contends that he was mistaken as to the timing of when the conversations were recorded. He contends that the insinuation made in Mrs Rayney's email of 13 July 2007 had previously been made orally by her and that the recordings were made to attempt to create a record that the oral insinuation was not sincerely made or was otherwise withdrawn. In all other respects Mr Rayney denies that the statements made in the affidavit of 2 February 2009 were false.
The position of the LPCC concerning Mr Rayney's response that Mrs Rayney made the insinuation orally and that Mr Rayney made a mistake as to the timing of the recordings.
The LPCC does not accept that Mrs Rayney made the insinuation orally. If, however, the Tribunal were to find that Mrs Rayney had made the insinuation orally and that the only false statements in Mr Rayney's affidavit of 2 February 2009 were as to the timing of the recordings and that the recordings were made in response to the insinuation being made orally rather than in the email of 13 July 2007, the LPCC does not contend that the statements made in the affidavit would have been made by Mr Rayney knowing that they were false or reckless as to whether they were true or false.
Ground 3 - the allegations of the LPCC concerning the oral evidence given by Mr Rayney at the hearing before Magistrate Flynn on 19 November 2009
The LPCC contends that each one of the statements particularised in Ground 3 was false in that:
1.The contents of the affidavit made on 2 February 2009 were not true and correct.
2.Mrs Rayney neither agreed nor consented to Mr Rayney recording conversations between Mr Rayney and Mrs Rayney and the conversations contained on the compact disc were recorded on a dictaphone by Mr Rayney without Mrs Rayney's knowledge or consent.
3.Mr Rayney did not copy all of the conversations between himself and Mrs Rayney that had been recorded on the dictaphone to the compact disc. In particular, the LPCC contends, the compact disc did not contain audio recording files of:
(a)recordings made by Mr Rayney after 17 April 2007 of conversations between Mr Rayney and Mrs Rayney; or
(b)a conversation between Mr Rayney and Mrs Rayney recorded by Mr Rayney which Mr Rayney played to his solicitor Mr William Carr at a meeting between Mr Rayney and Mr Carr on 6 August 2007.
4.Mr Rayney did not tell Mrs Rayney that he was going to record the relevant telephone conversations between himself and Mrs Rayney either before doing so or at all. The LPCC contends that those telephone conversations were recorded on a dictaphone by Mr Rayney without Mrs Rayney's knowledge or consent.
5.As to the recorded conversations that were in person, the dictaphone was not in view of Mrs Rayney. Rather, the LPCC contends, at the time the conversations were recorded the dictaphone was concealed on Mr Rayney's person.
The LPCC also contends that at the time he gave his oral evidence Mr Rayney knew that the statements were false or he was recklessly indifferent as to whether the statements were true or false.
The response of Mr Rayney to the LPCC allegations concerning the oral evidence given by Mr Rayney at the hearing before Magistrate Flynn on 19 November 2009
Other than to admit the errors contained in his affidavit of 2 February 2009 which he admitted in response to the LPCC's contentions concerning that affidavit Mr Rayney denies the LPCC's contentions that the oral evidence was false. Mr Rayney contends that the recording that he played to Mr Carr on 6 August 2007 was a recording that is contained on the compact disc, but he cannot say which one it was.
Conduct prior to the commencement of the 2008 Act
The first two grounds upon which the LPCC relies in making its application relate to conduct that occurred prior to the commencement of the 2008 Act, when the Legal Practice Act 2003 (WA) (2003 Act) was in force. Section 622 of the 2008 Act provides that Pt 13 of the 2008 Act (which deals with complaints and discipline) applies in relation to conduct of legal practitioners whether the conduct occurred before or after the 2008 Act came into force and that Pt 13 applies to conduct consisting of a contravention of the 2003 Act or the rules in force under the 2003 Act before the commencement of s 622 of the 2008 Act as if the conduct consisted of a contravention of the 2008 Act. The effect of s 622 of the 2008 Act is that conduct which constituted a contravention of the 2003 Act is to be treated as contravention of the 2008 Act: Fidock v Legal Profession Complaints Committee [2013] WASCA 10 (Fidock) at [31].
This Tribunal has said, in relation to the conduct when the 2003 Act was in force, that before the Tribunal can find that a practitioner has engaged in professional misconduct the Tribunal must be satisfied that the conduct of the practitioner constituted 'unsatisfactory conduct' under the 2003 Act: Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20 (Fitzpatrick) at [7]; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (A Legal Practitioner) at [26]. The 2003 Act defined unsatisfactory conduct as including unprofessional conduct.
Conduct which constitutes professional misconduct under the 2008 Act will also be conduct which constitutes unsatisfactory conduct under the 2003 Act: Fitzpatrick at [11]; A Legal Practitioner at [26].
Professional misconduct
Section 403(1) of the 2008 Act provides:
For the purposes of this Act -
professional misconduct includes -
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
It is to be noted that the definition is an inclusive definition: Fidock at [34]. It is not an exhaustive definition.
The common law concept of unprofessional conduct includes behaviour by a practitioner which would reasonably be regarded as disgraceful or dishonourable by the practitioner's professional colleagues of good repute and competency: Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61], as does the test of professional misconduct: Fidock at [35].
In this application the LPCC relies upon professional misconduct within the second limb of s 403(1)(b) of the 2008 Act, that is, conduct occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. The LPCC also relies upon the common law concept of behaviour by a practitioner which would reasonably be regarded as disgraceful or dishonourable by the practitioner's professional colleagues of good repute.
The allegations of professional misconduct are allegations of misconduct otherwise than in connection with the practice of law. Personal misconduct may show that a person is not a fit and proper person to practice. But the whole approach in a case of personal misconduct must be different from a case of professional misconduct. Generally speaking professional misconduct will have a much more direct bearing on a practitioner's fitness to practice than personal misconduct: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 (Ziems) at 287 288 and 290.
The burden of proof and the standard of proof
All of the grounds of the application allege serious misconduct. The burden of proof is on the LPCC.
The standard which it must meet to prove a charge is the civil standard of the balance of probabilities. For the LPCC to prove a relevant fact the Tribunal is required to feel an actual persuasion of the occurrence or existence of that fact.
Proof on the balance of probabilities is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegations made, the inherent unlikelihood that a legal practitioner would engage in that conduct and the gravity of the consequences flowing from a finding that Mr Rayney did engage in that conduct require that the Tribunal should not reach a conclusion to its reasonable satisfaction that a ground has been made out by inexact proofs, indefinite testimony, or indirect inferences. The nature of the issue necessarily affects the process by which reasonable satisfaction is attained: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 363.
Grounds 2 and 3 are allegations of giving knowingly false evidence or giving evidence reckless as to whether the evidence was true. The authorities on deceit provide a guide to the Tribunal as to what the LPCC must establish to prove that Mr Rayney gave evidence reckless as to whether the evidence was true: Fidock at [93] [98]; Gandini v Legal Profession Complaints Committee [2013] WASCA 168 at [75] [80]. To prove that Mr Rayney gave evidence reckless as to whether the evidence was true it is not sufficient for the LPCC to prove that he failed to take care to ensure that the evidence was true. The LPCC must prove that Mr Rayney gave false evidence indifferent to the truth, with a moral obliquity which consists in a wilful disregard of the importance of truth.
The drawing of inferences
There is no direct evidence that Mrs Rayney did not know of or consent to the recording of her conversations with Mr Rayney. There is also no direct evidence that the affidavit made by Mr Rayney on 2 February 2009 and Mr Rayney's oral evidence given on 19 November 2009 were false in the respects alleged by the LPCC. The LPCC submits that the Tribunal should draw inferences as to those matters. In considering whether or not to draw inferences on each of those matters the Tribunal needs to consider the whole of the evidence relevant to that matter and is not to consider each piece of relevant evidence in isolation: Seeley International Pty Ltd v Jeffrey [2013] VSCA 288 at [45] [47].
Section 5 of the Surveillance Devices Act
Section 5 of the Surveillance Devices Act provides:
5.Regulation of use, installation and maintenance of listening devices
(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device -
…
(b)to record a private conversation to which that person is a party.
…
...
(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if -
…
(c)each principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance; or
(d)a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.
A person contravenes s 5(1)(b) of the Surveillance Devices Act if that person uses a listening device to record a private conversation to which that person is a party. It is a defence to a charge of contravening s 5(1)(b) to prove that each principal party to the conversation consented, either expressly or impliedly, to the use of the listening device to record the conversation. It is also a defence to prove that the use of the listening device to record the conversation was reasonably necessary for the protection of the lawful interests of a party who consented to the use of the listening device.
The terms 'listening device', 'party', 'principal party' and 'private conversation' are defined in s 3 of the Act. A 'listening device' is defined to mean any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device. It is clear that a dictaphone which can record spoken words is a listening device within that definition.
The definition of 'party' in relation to a private conversation is:
party means -
(a)in relation to a private conversation -
(i)a person by or to whom words are spoken in the course of the conversation; or
(ii)a person who, with the express or implied consent of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words.
The definition of 'private conversation' is:
private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
So the parties to a private conversation are a person by whom words are spoken, a person to whom words are spoken and a person who, with the express or implied consent of any of the persons by whom or to whom words are spoken in the course of the conversation, listens to the conversation.
The exception in the definition of private conversation, that the term does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard, must mean heard by persons other than the parties to the conversation. That is because the word 'overheard' is used in that exception, instead of the words 'listened to' which is used earlier in the definition. To overhear means to hear speech or a speaker without the speaker's intention or knowledge - Macquarie Dictionary.
The defence provided for in s 5(3)(c) is express or implied consent of each principal party to the installation, use or maintenance of a listening device. The definition of 'principal party' in relation to a private conversation is:
principal party means -
(a)in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation[.]
The consent can be express or implied, so for example when a listening device is visible to the principal parties to the conversation it may be that consent can be implied. The consent need only be to the installation, use or maintenance of a listening device. The Act does not require the consent to extend to consent to the use of a recording made by the listening device after the recording has been made.
The word necessary connotes in s 5(3)(d) 'appropriate or adapted' rather than 'essential or indispensable'. The word 'reasonably' imports an objective test. The use of the listening device must, objectively, be reasonably appropriate or adapted. The determination of whether something is 'reasonably necessary' involves the exercise of judgmental evaluation. The determination of whether the use of a listening device is 'reasonably necessary' is to be undertaken by reference to the facts and circumstances, and upon the bases or grounds, existing at the time of the recording. The word 'protection', in the context of s 5, connotes defending, preserving or safeguarding the lawful interests of the principal party in question. What constitutes a person's 'lawful' interests must be ascertained from the facts and circumstances of the particular case. Generally the word 'lawful' connotes, in the context of s 5, a right or interest which is not contrary to statute or general law: AW v Rayney [2010] WASCA 161 (AW v Rayney) at [257].
Lawful interests may be distinguished from legal interests. They are interests which are not unlawful. The expressions 'legitimate interests' or 'interests conforming to law' convey similar meanings to the meaning of 'lawful interests': Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 at [28]. Section 5(3)(d) does not require a legal interest in the sense of a legal right, duty or liability. A recording made where a serious dispute has erupted and there will be dispute as to different version of events may give rise to a lawful interest: Chao v Chao [2008] NSWSC 584. Each case depends upon its circumstances: Sepulveda v The Queen [2006] NSWCCA 379 at [125]; Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012]WASC72 at [16]. The phrase 'lawful interests' would not be satisfied merely by a desire to have a reliable record of a conversation, but in several of the cases where the conversation related to a serious crime or an allegation of a serious crime, or resisting such an allegation, the court has been more likely to find that the recording of a conversation relating to the crime could be made in the protection of the person's lawful interests: Thomas v Nash [2010] SASC 153; (2010) 107 SASR 309 at [48].
Findings against Mr Rayney in decisions of courts and the relevance of those findings in this application
The LPCC has referred the Tribunal to findings in three proceedings to which Mr Rayney was a party:
(a)the decision of Magistrate Flynn delivered on 17 December 2009 in Ex Parte AW, unreported;
(b)the decision of the Court of Appeal on appeal from the decision of Magistrate Flynn delivered on 6 August 2010: AW v Rayney and its supplementary decision delivered on 18 April 2012 in AW v Rayney[No 4] [2012] WASCA 117 (AW v Rayney [No 4]); and
(c)the decision of Brian Martin AJ delivered on 1 November 2012 on Mr Rayney's trial on the charge of wilful murder: The State of Western Australia v Rayney [No 3] [2012] WASC 404 (Rayney [No 3]).
Magistrate Flynn, at [35] of his reasons, did not accept Mr Rayney's evidence that Mrs Rayney consented to the recording on a dictaphone of the conversations between Mr Rayney and Mrs Rayney which are recorded on the compact disc. He found, at [35], [40] and [40(e) and (f)], that Mr Rayney made those recordings without Mrs Rayney's consent. He also found, at [40(e) and (f)], that Mr Rayney's recording of those conversations was not reasonably necessary for the protection of Mr Rayney's lawful interests within the meaning of s 5(3)(d) of the Surveillance Devices Act and, at [6(b)] and [41], that the recordings were made in circumstances that involved a contravention of the Surveillance Devices Act.
There were three reasons why Magistrate Flynn did not accept the evidence of Mr Rayney that Mrs Rayney consented to the recording of their conversations. The first reason related to inexplicable inconsistencies in Mr Rayney's evidence. His Honour said that Mr Rayney's evidence in crossexamination that he did not ensure that Mrs Rayney's consent to the recordings was itself recorded because he did not anticipate that, two years after the event, he would need to substantiate Mrs Rayney's consent was inconsistent with Mr Rayney's evidence that one of the purposes for which he recorded the conversations was for use in family law litigation. His Honour found that as an experienced lawyer Mr Rayney must have known at the time of making the audio recordings that without evidence of Mrs Rayney's consent to them not only was his ability to use the recordings compromised but he was also vulnerable to an allegation by Mrs Rayney of unlawful conduct in making those recordings.
The second reason was that it was inherently unlikely that Mrs Rayney would fail to mention the recordings to her family law solicitor Ms Anderson if she was aware of them.
The third reason was that it was inherently unlikely that Mr Rayney would seek Mrs Rayney's consent to the making of the recordings and also make arrangements in July 2007 for the installation of a telephone recording device in their home.
The reasons of the Court of Appeal in AW v Rayney to which the LPCC refers are the reasons of Buss JA at [324] [334], [350(a)] and [366] and the reasons of McLure P at [83] and Newnes JA at [372] where their Honours agreed with Buss JA's reasons on those aspects of the decision. Buss JA ruled, at [314], that as Mr Rayney had not relied upon s 5(3)(d) of the Surveillance Devices Act in relation to the recordings made on the dictaphone at the hearing before Magistrate Flynn he was unable to rely upon it before the Court of Appeal. Buss JA decided that even if he had been able to rely upon s 5(3)(d) the recording of the conversations on the dictaphone was not reasonably necessary for the protection of Mr Rayney's lawful interests. Buss JA concluded that Mr Rayney's recordings of the conversations were made in circumstances that involved a contravention of s 5(1)(b) of the Surveillance Devices Act. Buss JA also found that Mr Rayney copied some of the recordings on the dictaphone on to the compact disc, but that he did not copy all of them, for example he did not copy the recording that was played to Mr Carr on 6 August 2007.
Buss JA concluded that the use of the dictaphone to record conversations with Mrs Rayney was not reasonably necessary for the protection of any lawful interest Mr Rayney may have had. The first reason for that conclusion was that the recorded conversations between Mr Rayney and Mrs Rayney were mundane in character and content, and occurred in the context of day to day living in a domestic relationship. The second reason was that Mr Rayney did not identify in evidence any lawful interest that he wanted to protect. The third reason was that, as a general proposition, the recording of a conversation, by a party to the conversation, merely to ensure there is an irrefutable record of it, does not, of itself, bring the recording within s 5(3)(d): R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108 at [79]. The fourth reason was that there was no evidence that Mr Rayney had a reasonable belief that any lawful interest he may have had would be endangered if he did not record the conversations. The fifth reason was that Mr Rayney was at the material time a very experienced criminal lawyer and there was no reason or justification (beyond mere convenience) as to why he could not have made adequate notes of the material substance of the conversations. The sixth reason was that as Mr Rayney was directing the topics of the conversations and the fact that only mundane matters were discussed, it was not reasonably open to conclude that Mr Rayney had a reasonable belief that it was necessary to record the conversations to protect any lawful interest he may have had. Finally, Buss JA said that the content of the conversations in question will, at least sometimes, be relevant to the application of s 5(3)(d). For example, the content of the recorded conversations between Mr Rayney and Mrs Rayney (in particular, the subject matter and any issues raised by Mr Rayney or his responses to Mrs Rayney) was relevant in determining whether Mr Rayney's conduct in recording them was reasonably necessary for the protection of any lawful interest he may have had.
The Court of Appeal also said, in its supplementary decision in AW v Rayney [No 4] at [48(a)], that between about April 2007 and 7 August 2007 Mr Rayney used a digital dictaphone to record the conversations with Mrs Rayney that are on the compact disc without her knowledge or consent.
Brian Martin AJ found in Rayney [No 3] at [32] that Mr Rayney engaged in discreditable conduct which included giving false evidence to a court, at [63] that prior to travelling to Bali in April 2007 Mr Rayney secretly recorded at least one conversation with Mrs Rayney and, at [269] and [652], that Mr Rayney met with Mr Carr on 6 August 2007 and played a recording of a conversation between Mr Rayney and Mrs Rayney which recording did not correspond to any of the recordings on the compact disc. Brian Martin AJ also found, at [636] [641], that when making those recordings the dictaphone was not sitting between Mr Rayney and Mrs Rayney in a position it might be expected to sit if both were aware that the conversation was being recorded. His Honour said that the topics and tenor of the recorded conversations did not sit well with Mr Rayney's version of the circumstances of the recording and that in one of the conversations Mrs Rayney's voice was raised significantly in a manner she would have been highly unlikely to have allowed if she knew she was being recorded. Brian Martin AJ was satisfied, at [643], that Mr Rayney secretly recorded the conversations without Mrs Rayney's knowledge and that Mr Rayney's affidavit of 2 February 2009 was false in respect of the circumstances in which the recordings were made and his purpose in making them. His Honour said, at [644] [651], that Mr Rayney's explanations for not recording the fact of consent and not telling Mrs Rayney why he wanted the recording were utterly unconvincing and that if Mrs Rayney was aware of the recording and consenting to it, there is no doubt that Mr Rayney would have recorded that fact on the recording and that Mr Rayney's failure to do so and his false explanation were highly damning to his credibility. His Honour found that Mr Rayney lied to Magistrate Flynn with respect to the matters significant to his claim for privilege. Brian Martin AJ was satisfied, at [654], that Mr Rayney secretly recorded conversations with Mrs Rayney without her knowledge and that Mr Rayney subsequently made false statements in his affidavit and evidence and that Mr Rayney knew that the recorded conversations would be used by the State as further material to prove the breakdown of the relationship between Mr and Mrs Rayney. Brian Martin AJ found, at [1583] and [1594], that Mr Rayney made a false declaration and deliberately gave false evidence to a court while on oath.
The conclusions of Brian Martin AJ were based upon his analysis of the affidavit of Mr Rayney and the transcript of Mr Rayney's evidence before Magistrate Flynn. Mr Rayney did not give evidence at the murder trial.
In exercising its jurisdiction the Tribunal is bound by the rules of natural justice, except to the extent that the State Administrative Tribunal Act 2004 (WA) (SAT Act) or the 2008 Act authorise a departure from those rules, the Tribunal is not bound by the rules of evidence and is to act according to equity, good conscience and the substantial merits of the case and the Tribunal is to ensure that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue in the proceeding: s 32 of the SAT Act.
In determining the issues before it this Tribunal is entitled to have regard to findings of courts on issues that it must determine. It is entitled to give those findings significant weight. However it is also required to give Mr Rayney the opportunity to present evidence on those issues. The Tribunal is required to consider that material and make its own determination of the issues before it: Sudath v Health Care Complaints Commission [2012] NSWCA 171; (2012) 84 NSWLR 474 at [101] [102].
The impact of events upon Mr Rayney
Mr Rayney has suffered many traumatic and distressing events which need to be borne in mind when considering his conduct and his evidence in this application and his evidence on other occasions.
Mr Rayney was very close to his father. In 2006 Mr Rayney's father was diagnosed with cancer. He had a fall while in hospital from which he suffered brain damage. For the last four months of his life Mr Rayney's father was bedridden, could not speak and was unable to eat any food or drink any liquids. He had no real ability to communicate with anyone. Mr Rayney visited his father often. Mr Rayney's father died in January 2007.
Mr Rayney's mother was very dependent upon Mr Rayney's father both emotionally and practically. Mr Rayney's mother has never held a driver's licence. After the death of Mr Rayney's father Mr Rayney's mother became very dependent on Mr Rayney in many ways, including needing him to drive her and to spend time with her.
The illness and death of Mr Rayney's father and the impact of these events on his mother were very distressing for Mr Rayney.
Mrs Rayney was murdered in 2007. Mr Rayney was charged with her murder and acquitted. An appeal by the State was not successful. Mr Rayney was charged with offences under the Telecommunications (Interception and Access) Act 1979 (Cth) and acquitted. Mr Rayney has been a party to many other court actions associated with Mrs Rayney and his relationship with her.
Mr Rayney has received medical treatment following the death of Mrs Rayney. He has been treated by his general medical practitioner Dr Brett Bowden who has been the family general practitioner for approximately 20 years. Prior to commencing general practice Dr Bowden completed six months full time training in the practice of psychiatry.
Mr Rayney presented to Dr Bowden as enjoying excellent health prior to the death of Mrs Rayney, apart from an issue with his back.
Dr Bowden saw Mr Rayney on a number of occasions in the period following the death of Mrs Rayney. At these consultations the focus was on Mr Rayney's children's health or Mr Rayney's physical symptoms such as his obvious weight loss.
On 13 August 2007 Mr Rayney presented to Dr Bowden with symptoms of a virus and informed him that he was not sleeping. Dr Bowden prescribed Temazepam.
Mr Rayney took prescription medication for only a short period because he did not like the effect it had on him.
The first occasion on which Dr Bowden discussed with Mr Rayney the emotional impact of Mrs Rayney's death and the police investigation was on 26 October 2007. Dr Bowden was not surprised that Mr Rayney had not discussed the issue earlier because he knew from his treatment of Mr Rayney that he was an intensely private man.
On 26 October 2007 Mr Rayney informed Dr Bowden that he had been troubled by severe insomnia, managing only a few hours' sleep a night, he had difficulty concentrating and performing simple tasks, poor appetite and weight loss. Mr Rayney informed Dr Bowden that he continued to work as a barrister, but that he was not particularly productive.
Dr Bowden diagnosed Mr Rayney as suffering severe adjustment disorder and posttraumatic stress disorder. Mr Rayney declined counselling or anti-depressant medication. Dr Bowden provided Mr Rayney with some hypnotics to help him sleep.
On 28 January 2008 Dr Bowden wrote a report to Mr Rayney's insurer stating that he had diagnosed Mr Rayney as suffering grief, severe adjustment disorder and posttraumatic stress disorder.
Mr Rayney's evidence was that his memory of the events which occurred approximately 10 years ago, is far from perfect. During the past 10 years his recollection has been affected by events which caused considerable trauma to him and his children. His own trauma has been exacerbated by dealing with the trauma suffered by his children. Recalling specifics, such as dates and times, precise narratives of what was said, has been made exceedingly difficult through the combination of the passage of time and the problems associated with information overload and the possibility that his memory has been displaced by having read so many statements and documents and hearing others talk about events.
The practice of law by Mr Rayney
Mr Rayney studied law at the University of Tasmania. He graduated in 1983 and did articles with a law firm in that State. He was admitted to practice in the Supreme Court of Tasmania in 1985 and in the Supreme Court of Western Australia in 1986.
In 1985 Mr Rayney returned to Western Australia, where he had gone to school and where his family continued to live. He was employed in the Perth office of the Australian Government Solicitor from 1985 to 1988 and in the Perth office of the Commonwealth Director of Public Prosecutions from 1988 to 1989.
In 1989 Mr Rayney commenced employment with the Crown Solicitor's Office. He worked mainly in the area of criminal law. He appeared as counsel at trials, before Boards and Tribunals and at Royal Commissions and as junior counsel in appeals. He became a senior lawyer in that office.
In 1992 the Office of the DPP was established. Mr Rayney was one of the select few of the lawyers from the Crown Solicitor's Office who were invited to join the DPP's office. He accepted the invitation and commenced working at the office when it opened.
While at the office of the DPP Mr Rayney prosecuted very serious offences, in some of the most complex and high profile trials and appeals in the State. In 1997 he was appointed as one of the four inaugural Consultants at the DPP with responsibility for signing indictments. From 1998 to 2002 he was second in charge of the office.
Mr Rayney took leave from the office of the DPP to work as Senior Crown Counsel at the office of the Director of Public Prosecutions in Bermuda, where he commenced working in 2003. His contract was for three years but he left after about 16 months because Mrs Rayney was unable to obtain leave from her position as a Registrar at the Supreme Court of Western Australia.
Mr Rayney returned to work at the office of the DPP in about August 2004, where he remained until he became a barrister in June 2005.
At the time of the death of Mrs Rayney Mr Rayney practised from Francis Burt Chambers. He practiced mainly in criminal law but also practiced in other areas including commercial law, mining law and taxation law. His practice was a busy and successful one. He was highly regarded in the profession.
In December 2012 Mr Rayney gave an undertaking to the Legal Practice Board of Western Australia (LPB or Board) that he had ceased engaging in legal practice and that he would not recommence practice without giving the Board 42 days' notice. In May 2015 Mr Rayney gave the Board notice that he intended to reengage in legal practice from the end of June.
On 21 July 2015 the LPB cancelled Mr Rayney's practice certificate. On 10 February 2016 this Tribunal, differently constituted, set aside the LPB's decision to cancel Mr Rayney's practice certificate: Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 (Rayney and LPB). The LPB then issued a practice certificate to Mr Rayney.
No complaint of professional misconduct or unprofessional conduct has ever been made against Mr Rayney prior to the events with which Rayney and LPB was concerned or the events with which this application is concerned.
References have been included in the material before the Tribunal attesting to Mr Rayney's character and his high standing in the legal profession.
Mr and Mrs Rayney's marriage
Mr Rayney met Mrs Rayney in 1986 at the office of the Australian Government Solicitor, where they both worked. They became engaged to be married in 1989 and were married in 1990. They had two children, Caitlyn who was born in 1994 and Sarah who was born in 1997.
In approximately 1991 or 1992 Mr and Mrs Rayney purchased a house in Como, where both of them lived when they were resident in this State. They were both living in that house when Mrs Rayney died.
Mrs Rayney died on or about 7 or 8 August 2007. Her body was discovered at Kings Park on 15 or 16 August 2007.
By April 2007 there were significant difficulties in Mr and Mrs Rayney's marriage.
The LPCC contends that by no later than the start of April 2007 there had been an acrimonious breakdown, and there were substantial and ongoing difficulties, in the matrimonial relationship between Mr Rayney and Mrs Rayney.
Mr Rayney does not accept that the marriage had acrimoniously broken down by April 2007. He says that he hoped that their relationship could be reconciled.
He does, however, accept that by April 2007 significant matrimonial issues had arisen between himself and Mrs Rayney and that at times dealings between them were acrimonious (principally confined to the tone and content of the email communications between the two). He also accepts that by early April 2007 he anticipated the possibility of proceedings being commenced in the Family Court.
Dispute about a male friend of Mrs Rayney
One of the areas of dispute between Mr Rayney and Mrs Rayney was a male friend of Mrs Rayney whose daughter was in the same year at school as Sarah Rayney. Sarah was friendly with the man's daughter. The man was separated from his daughter's mother and was single. Mr Rayney attributes Mrs Rayney's relationship with this man as one of the reasons why the marriage deteriorated in 2007.
Mr Rayney did not approve of this man. He describes him as having long hair, not having a job, drinking a lot of alcohol, being a heavy smoker of roll your own cigarettes, taking drugs, being drunk at social events and frequently making inappropriate comments of a sexual nature.
In 2006 Mr Rayney heard this man say that he would not mind sleeping in the bed of a girl who was the daughter of one of Mrs Rayney's friends. This daughter was 16 years old at the time.
Mr Rayney's parents had told Mr Rayney that Sarah had said that when she was at this man's house with his daughter the man had entered a room when the two girls were changing clothes.
Mr Rayney and Mrs Rayney had an argument about Sarah staying overnight with her friend at this man's house. Mr Rayney told Mrs Rayney that he was strongly opposed to Sarah doing so and he told her his reasons, which included the man's comments about females, the incident Mr Rayney's parents had told him that Sarah had told them of and the man's comment of wanting to sleep in the same bed as a 16yearold girl.
Mrs Rayney told the man the reasons why Mr Rayney would not allow Sarah to spend the night at their home, but she did not tell Mr Rayney that she had done so. At the start of the 2007 school year Mr and Mrs Rayney were at the school with their children. The man swore at Mr Rayney in front of Mrs Rayney and their children.
Mrs Rayney was not open with Mr Rayney, her sister Mrs Coutinho or her friends about this relationship. In Rayney [No 3], Brian Martin AJ said of Mrs Rayney's relationship with the man:
[340]A number of friends of [Mrs Rayney] were aware of a close friendship, but they were not aware that during the friendship contact of a sexual nature occurred. The man and [Mrs Rayney] met on numerous occasions and kissing and cuddling occurred. On three occasions there was sexual interaction involving intimate touching of each other, but there was no act of penile sexual intercourse.
[341]It is apparent that while [Mr Rayney] was in Bermuda there were numerous occasions when [Mrs Rayney] met with the man and that after [Mr Rayney] returned from Bermuda there were occasions when they met for coffee. However, by 2007, although they remained friends, contact between them was limited and there was no sexual interaction.
Mr Rayney's evidence was that when he returned to Perth from Bermuda he considered that Mrs Rayney had developed an infatuation with the man. He doubted Mrs Rayney's innocent explanations of her relationship with the man. When Mr Rayney raised Mrs Rayney's relationship with the man with Mrs Rayney she angrily denied having any relationship with the man: Mr Rayney's witness statement [234] and [238].
The insinuation
On 13 July 2007 Mrs Rayney sent an email to Mr Rayney which, the email said, confirmed their discussion that morning. In that email, amongst other things, Mrs Rayney made a very serious insinuation against Mr Rayney. The insinuation was entirely untrue. There were two aspects to the insinuation contained in the email of 13 July 2007, both of them were untrue. The email contained a reference to a development which made the insinuation very clear. The next day Mr Rayney replied by email to Mrs Rayney's email. He said of the insinuation: 'Your thinly veiled insinuation disgusts me. How dare you'.
Mrs Rayney had previously, on 25 June 2007, sent an email to Mr Rayney which could be regarded as containing one of the aspects of the insinuation later made in Mrs Rayney's email of 13 July 2007. The email of 25 June 2007 did not contain the reference to a development which was contained in the email of 13 July 2007. Mr Rayney replied by email on 26 June 2007. His reply did not acknowledge that the insinuation was made in Mrs Rayney's email of 25 June 2007.
Mr Rayney's evidence to the Tribunal was that prior to the making of the insinuation in writing Mrs Rayney had made the insinuation orally.
Mr Rayney's instruction to Mr Carr
Mr Carr is an experienced practitioner who practices in family law. He acted for Mr Rayney from 13 April 2007.
Mr Carr identified his instruction sheet on which hand written notes were made by him and by his secretary at the time. The notes made by his secretary included a note of an appointment on Friday 13 April 2007 and 'no conflict', her initials and the date of 11 April 2007. The notes made by Mr Carr were made by him on 13 April 2007. Mr Carr took instructions on that day from Mr Rayney as to the matters required for a family law case. Mr Carr cannot recall anything untoward about the instructions that he received. He made a note: 'She is very nasty towards me'.
Mr Carr's evidence, based on the note, was that it was a record of the instructions that he received from Mr Rayney as to the nature of the communications between Mrs Rayney and Mr Rayney.
On 14 July 2007 Mr Rayney sent to Mr Carr an email with attachments. In his email to Mr Carr, Mr Rayney said that he was deeply concerned by what Mrs Rayney was alluding to in the second email at point 2. Mr Carr cannot recall the attachments, but it is likely that the attachments were emails from Mr Rayney to Mrs Rayney sent on the same day at 11.06 pm and 11.47 pm. The second of those emails responded to Mrs Rayney's email of 13 July 2007 in which she made the oral insinuation in the second numbered paragraph.
Mr Carr's evidence was that he thinks that he would have discussed the insinuation at the next appointment after 14 July 2007. Apart from the issue being raised in that email Mr Carr cannot recall the issue being raised in their communications.
Mrs Rayney's engagement of Ms Anderson
On 26 June 2007 Mrs Rayney instructed Ms Gillian Anderson, an experienced legal practitioner who practices predominantly in the area of family law, who was then practising at the firm of Dwyer Durack.
Ms Anderson continued to act for Mrs Rayney until Mrs Rayney's death.
Mrs Rayney did not tell Ms Anderson that Mr Rayney had recorded their conversations.
The Magistrates Court proceedings
On 20 September 2007 Western Australian police officers executed a search warrant at Mr Rayney's chambers. During the execution of the search warrant police officers seized items, including a compact disc on which Mr Rayney had made copies of conversations with Mrs Rayney which he had recorded on a dictaphone.
The compact disc contained nine digital audio files. It was labelled 'May 2007'. The nine audio files were TSH audio files. TSH audio files are typically generated by portable digital voice recorders. These TSH audio files could not be listened to by placing the compact disc in any computer or other device in Mr Rayney's chambers or at his home.
The nine TSH audio files were copied to the compact disc on 17 April 2007.
Mr Rayney claimed legal professional privilege over items seized from his chambers, including the compact disc.
On 24 September 2007 a police officer made an application to the Magistrates Court at Perth to determine Mr Rayney's claim of legal professional privilege.
The application, along with another application made by the police officer in relation to Mr Rayney's claim for privilege for other items seized by police officers, was determined by His Honour Magistrate Flynn.
Magistrate Flynn made orders for the filing of affidavits and submissions. On 2 February 2009 Mr Rayney swore an affidavit in support of his claim for legal professional privilege over the audio recordings on the compact disc.
In the affidavit of 2 February 2009 Mr Rayney deposed that:
•Mrs Rayney sent him many emails which contained statements with which he did not agree;
•on 13 July 2007 she sent him an email that contained an insinuation against him which was untrue;
•he replied that it was untrue and discussed the insinuation with Mrs Rayney; Mrs Rayney told him that she did not believe that he had done anything wrong or improper, but that her solicitor had advised her to write to him because there may be some benefit to Mrs Rayney in doing so;
•Mr Rayney asked Mrs Rayney not to send him the emails, but she continued to do so;
•Mr Rayney told Mrs Rayney that he wanted his own record of what they discussed and that he would record discussions between them on a handheld dictaphone; and
•for the discussions in person a handheld dictaphone was placed in a clearly visible position which was unobstructed by any objects so that it could record what Mr Rayney and Mrs Rayney said; the dictaphone was visible to both of them and Mrs Rayney was aware that it was recording.
The applications were heard by Magistrate Flynn on 18 and 19 November 2009. Mr Rayney gave oral evidence on 19 November 2009 and his affidavit of 2 February 2009 was read into evidence as his evidenceinchief. In the course of his oral evidence Mr Rayney gave evidence that the contents of his affidavit were true and correct to the best of his knowledge and belief, that Mrs Rayney had agreed at the commencement of his recording of their discussions to him doing so, that she consented to his recording of all of the discussions that he recorded, including the telephone conversations that he had recorded, that he had copied to the compact disc that was in the custody of the court, all of the conversations that he had recorded on the dictaphone and that when he had recorded the conversations between himself and Mrs Rayney in person the dictaphone on which he made the recordings was in Mrs Rayney's view.
(d)When Mr Lloyd Patrick Rayney recorded conversations between Mr Lloyd Patrick Rayney and Mrs Rayney that were in person the dictaphone on which the conversations were recorded was in view of where Mrs Rayney was and was not concealed.
4.The application is listed for a directions hearing before Justice Martino on Friday 2 February 2018 at 9.15 am for the making of directions as to the dates for the filing of submissions as to penalty and costs, whether the issues of penalty and costs are to be determined on the papers and for the listing of the hearing if the issues are not to be determined on the papers.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE14 MAY 2018
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