Legal Profession Complaints Committee v Rayney - [2020] WASC 131

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   FULL BENCH
CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE -v- RAYNEY [2020] WASC 131
CORAM:   KENNETH MARTIN J
CORBOY J
SMITH J

HEARD:   21 APRIL 2020
DELIVERED          :   21 APRIL 2020
FILE NO/S:   LPD 3 of 2019
BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
LLOYD PATRICK RAYNEY
Respondent

Catchwords:

Legal practitioners - Disciplinary proceedings - Removal from Roll of Practitioners - Professional misconduct - Contravention of Surveillance Devices Act 1998 (WA) and by knowingly giving false evidence on affidavit and in oral evidence before a court and the Tribunal

Legislation:

Legal Profession Act 2008 (WA), s 56(2), s 403, s 438, s 439(d), s 444(1), s 444(2)
Surveillance Devices Act 1998 (WA), s 5(1)

Result:

Order that the practitioner's name be removed from Roll of Practitioners

Category: B

Representation:

Counsel:

Applicant	:	Mr M N Solomon SC & Mr S R Merrick
Respondent	:	Mr M L Bennett

Solicitors:

Applicant	:	Legal Profession Complaints Committee
Respondent	:	Bennett + Co

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

Ex Parte AW (Unreported, Magistrates Court, 17 December 2009)
In re Davis [1947] HCA 53; (1947) 75 CLR 409
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S)
Legal Profession Complaints Committee v Bower [2019] WASC 281
Legal Profession Complaints Committee v Brennan [2010] WASC 198
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Oud [2019] WASC 287
Legal Profession Complaints Committee v Thorpe [2008] WASC 9
Rayney v Legal Profession Complaints Committee [2019] WASCA 104
Rayney v State of Western Australia [No 9] [2017] WASC 367

JUDGMENT OF THE COURT:

Introduction

On 21 April 2020, the court ordered that the respondent's name, Mr Lloyd Patrick Rayney, be removed from the Roll of Practitioners. These are our reasons for making this order.
Mr Rayney was admitted to practice in Tasmania in 1985, and in Western Australia on 3 April 1986.
Mr Rayney had a long career as a senior practitioner principally in the practice of criminal law and was for many years a highly respected lawyer.
Between 1985 and 1988, Mr Rayney worked for the Perth office of the Australian Government Solicitor. Between 1988 to 1989, Mr Rayney worked for the Perth office of the Commonwealth Director of Public Prosecutions. Between 1989 to 1992, Mr Rayney worked for the Crown Solicitor's Office and became a senior lawyer in that office. In 1992, Mr Rayney was invited to join and commenced working at the Office of the Director of Public Prosecutions (DPP), where he prosecuted very serious offences, in some of the most complex and high profile trials and appeals in the State. In 1997, Mr Rayney was appointed as one of the four inaugural Consultants at the DPP with responsibility for signing indictments. From 1998 to 2002, Mr Rayney was second in charge of the DPP.
Between 2003 to mid-2004, Mr Rayney took leave from the DPP to work as Senior Crown Counsel at the DPP in Bermuda. In about August 2004, Mr Rayney returned to work at the DPP in Perth.
In June 2005, Mr Rayney went to the bar. His practice was a busy and successful one, and he was highly regarded in the profession.
On 25 January 2018, the State Administrative Tribunal made three findings that Mr Rayney had engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (LP Act) (Misconduct Decision).[1] On 18 April 2018, the Tribunal ordered that, inter alia, a report be transmitted to the Full Bench of the Supreme Court pursuant to s 438 of the LP Act with the recommendation that the name of Mr Rayney be removed from the local roll pursuant to s 444(2) of the LP Act (Penalty Decision).[2]
[1] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
[2] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
Under cover of letter dated 24 October 2019, the Tribunal transmitted its report to the Full Bench of the court, in the form of its reasons for decisions of the Misconduct Decision and the Penalty Decision, the orders made on 25 January 2018, transcripts of the hearings before the Tribunal, and the exhibits as specified in order 2(c) of the Order of the Tribunal made on 18 April 2018.
A notice of intention not to oppose the Committee's application was signed on behalf of Mr Rayney and was filed in the court on 28 October 2019.

A summary of the factual background, the history of related proceedings and the Tribunal's facts and findings of professional misconduct

The facts and findings of the Tribunal are set out in the Tribunal's reasons for decision in Legal Profession Complaints Committee and Rayney.[3] The report, which was formally transmitted to this court on the day of the hearing of the Committee's motion, included the Misconduct Decision and the Penalty Decision. Pursuant to s 444(1) of the LP Act, the report of the Tribunal is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.
[3] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 and Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
The Tribunal's facts and findings may be summarised as follows.
The misconduct proceedings in the Tribunal which led to the orders being made by the Tribunal on 18 April 2018 related to the conduct of Mr Rayney in respect of two related courses of action, the first of which occurred while Mrs Rayney was still alive.
Mr Rayney's first acts of professional misconduct arose not long before his wife Mrs Rayney died and at a time when he was experiencing difficulties in their relationship.
By April 2007, Mr Rayney's marriage to his wife had deteriorated. Dealings between Mr and Mrs Rayney by that time had become acrimonious, but the marriage had not broken down and they were still living together. However, by 13 April 2007, Mr Rayney had made contact with an experienced family law practitioner and had engaged him to act on his behalf. On 25 June 2007, Mrs Rayney also engaged a family law practitioner to act on her behalf.[4]
[4] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [154].
The first finding the Tribunal made was that Mr Rayney had engaged in professional misconduct by:
(a)recording private conversations with Mrs Rayney in knowing contravention of the Surveillance Devices Act 1998 (WA), between about April 2007 and a date unknown in 2007; and
(b)on or after 6 June 2007 he recorded conversations between himself and Mrs Rayney on a dictaphone, without the knowledge or consent of Mrs Rayney, in contravention of s 5(1) of the Surveillance Devices Act;
in circumstances where there were significant disputes between Mr Rayney and Mrs Rayney, and Mr Rayney knew that he was acting unlawfully.
The Tribunal found that in making the recordings of the conversations Mr Rayney contravened the Surveillance Devices Act.[5]
[5] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [335] ‑ [336].
The second course of action by Mr Rayney occurred in 2009 and gave rise to two findings of professional misconduct by the Tribunal. This conduct occurred at a time when Mr Rayney was being investigated as a suspect in the murder of Mrs Rayney, and after Mr Rayney had been charged with an offence of contravening s 5(1)(b) of the Surveillance Devices Act. The findings of professional misconduct arose out of the swearing of an affidavit to be read in Magistrates Court proceedings and giving false (oral) evidence in the Magistrates Court.
The findings of professional misconduct made by the Tribunal arising out of the course of conduct in 2009 were as follows:
(a)on 2 February 2009, Mr Rayney swore an affidavit to be read in application 3 and 6 of 2007 in the Magistrates Court of Western Australia in which he gave evidence on oath which he knew to be false, with the intention of misleading the court as to the matters the subject of that evidence; and
(b)on 19 November 2009, Mr Rayney gave evidence on oath before Magistrate Flynn which he knew to be false, with the intention of misleading the court as to the matters the subject of that evidence.

In Magistrates Court 3 and 6 of 2007 proceedings, Mr Rayney gave evidence in the affidavit and orally that he had recorded the conversations (made in contravention of s 5(1)(b) the Surveillance Devices Act) 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.[6] He also gave evidence orally that he had copied all of the conversations that he had recorded on a dictaphone onto a compact disc.
[6] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [113] ‑ [114].
In the Misconduct Decision, the Tribunal found:
(a)Mr Rayney recorded conversations (with Mrs Rayney) that were not on the compact disc. This was demonstrated firstly by the fact that he played a recording to his solicitor Mr Carr on 6 August 2007 that was not one of the recordings on the compact disc, and secondly by the fact that he purchased a dictaphone on 6 June 2007 for the purpose of recording his conversations with Mrs Rayney when he had previously copied recorded conversations onto a compact disc on 17 April 2007;[7]
(b)the recordings were not made to protect the lawful interests of Mr Rayney as he made recordings on a dictaphone before an insinuation was made by Mrs Rayney in emails to Mr Rayney on 25 June 2007 and 13 July 2007;[8]
(c)Mr Rayney continued to make recordings on a dictaphone after he received the emails of 25 June 2007 and 13 July 2007 but gave no evidence that he continued to make the recordings because of an insinuation;[9] and
(d)when Mr Rayney gave his oral evidence in the Magistrates Court, as an experienced criminal lawyer he could not have been under any misapprehension as to the purpose of giving evidence. His only possible intention of giving evidence which he knew to be false was to mislead the Magistrates Court.[10]
[7] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [181], [141].
[8] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [331].
[9] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [331].
[10] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [358].
When the Tribunal made its factual findings in its Misconduct Decision, the Tribunal had regard to the findings made by Magistrate Flynn about whether Mr Rayney's affidavit and oral evidence that when he made the recordings the dictaphone was visible and Mrs Rayney was aware the dictaphone was recording the conversation when he delivered his reasons for decision on 17 December 2009 in Ex Parte AW.[11] The Tribunal referred to the findings made by Magistrate Flynn as follows:[12]
[That he] 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 cross examination 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.
[11] Ex Parte AW (Unreported, Magistrates Court, 17 December 2009).
[12] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [42] ‑ [45].
In its Penalty Decision, the Tribunal had regard to evidence which established that Mr Rayney had repeated the false evidence about the recording of his conversations with Mrs Rayney on three further occasions. The first of those occasions arose out of a decision made by the Legal Practice Board (Board) to cancel Mr Rayney's practising certificate in 2015 (Practising Certificate proceedings). The second occasion was when Mr Rayney gave evidence in the Supreme Court defamation proceedings in March 2017. The third occasion was when Mr Rayney gave evidence in the misconduct proceedings in 2017.
In its Penalty Decision, the Tribunal also had regard to the fact that Mr Rayney had been unable to practice law from early 2011 until February 2016. The facts relevant to the Practising Certificate proceedings were that on 8 December 2010, Mr Rayney was charged with the wilful murder, or alternatively the manslaughter, of Mrs Rayney.
On 1 March 2011, Mr Rayney agreed, at the request of the Board, to the imposition of a condition on his practising certificate, which meant he was unable to appear as counsel in any jury trial in the District Court or the Supreme Court until the wilful murder charge had been determined.
After Mr Rayney was acquitted for murder and manslaughter, in 2013 he proceeded with a defamation action against the State of Western Australia arising out of the murder investigation in respect of matters stated by a police officer at a media conference on 20 September 2007 (Defamation action).
On 18 May 2015, Mr Rayney wrote to the Board. He gave notice that he intended to resume legal practice in 42 days' time, that is, from the end of June 2015. On 2 June 2015, Mr Rayney received notice from the Board of its intention to cancel his practising certificate pursuant to s 56(2) of the Legal Profession Act. He was invited to make written representations in relation to matters contained in the notice by 24 June 2015. On 24 June 2015, 29 June 2015 and 6 July 2015, Mr Rayney provided written representations to the Board.
On 17 July 2015, Mr Rayney received notice from the Board that his practising certificate was cancelled from 21 July 2015. The reasons for cancellation of his practising certificate concerned different allegations to the allegations which formed the findings of professional misconduct made by the Tribunal on 25 January 2018.
On 22 July 2015, Mr Rayney applied, in VR 132 of 2015, to the Tribunal to review the Board's decision to cancel his practising certificate (Practising Certificate proceedings). On 10 February 2016, the Tribunal (differently constituted) set aside the Board's decision to cancel Mr Rayney's practising certificate. The Tribunal found that Mr Rayney was a fit and proper person to hold a practising certificate.
Consequently, on 12 February 2016, the Board issued Mr Rayney with a practising certificate. However, prior to the issue of the certificate, on 12 October 2015, the Legal Profession Complaints Committee had commenced disciplinary proceedings against Mr Rayney in respect of the matters that are the subject of these proceedings.
After the acquittal decision, and a subsequent dismissal of an appeal against the acquittal decision by the State of Western Australia, the Defamation action was ultimately heard before Chaney J, in the period between March and July 2017, and Mr Rayney gave evidence in those proceedings.
On 20 December 2017, Chaney J gave judgment for Mr Rayney in his Defamation action.[13]
[13] Rayney v State of Western Australia [No 9] [2017] WASC 367.
In the Misconduct Decision, the Tribunal found that the recordings made by Mr Rayney in 2007 were not made for the purpose of obtaining a record that an insinuation made by Mr Rayney's wife was untrue. The Tribunal found that Mr Rayney'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 him knowing that it was false and with the intention of misleading the court. The Tribunal also found that Mr Rayney had not established by his oral evidence that he had copied all of the conversations that he had recorded on a dictaphone onto a compact disc was true.
In their Penalty Decision, delivered on 6 April 2018, the Tribunal found:
(a)that an appropriate penalty for the first finding of professional misconduct (recording the conversations between himself and Mrs Rayney on a dictaphone) was a reprimand, pursuant to s 439(d) of the LP Act, and (but for the periods of time he was restricted in his ability to practice or unable to practice) an appropriate penalty for this misconduct would have been a period of suspension from practice of one year;[14] and
(b)that Mr Rayney's conduct in knowingly giving false evidence intending to mislead the Magistrates Court constituted professional misconduct which conduct would justify a finding that Mr Rayney is not a fit and proper person to engage in legal practice and would reasonably be regarded as disgraceful or dishonourable by Mr Rayney's professional colleagues of good repute.
[14] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [120] ‑ [122].
In respect of the second and third findings of professional misconduct, the Tribunal found that Mr Rayney lacks honesty and candour, and that when regard was had to the need to protect the public by marking the seriousness of knowingly giving false evidence, the only appropriate penalty was to recommend to the Full Bench of the Supreme Court that Mr Rayney's name be removed from the Roll of Practitioners; and that Mr Rayney's local practising certificate should be suspended pending the determination of the Supreme Court.[15] In making these findings, the Tribunal had regard to the following matters:[16]
By his conduct in giving evidence that he knew to be false with the intention of misleading the court in his affidavit of 2 February 2009 and in the Magistrates Court on 19 November 2009 Mr Rayney demonstrated that he lacked the honesty and integrity that are essential prerequisites to the right to practice law. Mr Rayney has demonstrated no remorse or insight into his professional misconduct in giving that false evidence. It cannot be said that the professional misconduct was isolated. Mr Rayney has knowingly given false evidence about the recording of his conversations with Mrs Rayney in 2015 in the proceedings in the Tribunal to review the LPB's decision to cancel his practising certificate, in 2017 in his Supreme Court defamation action and in 2017 in the hearing before us.
Mr Rayney has suffered the many distressing, traumatic and stressful events that we have referred to in the Reasons and in these reasons. He was restricted in his ability to practice or unable to practice for almost five years. His poor financial position will be made worse if he is unable to practice and he will be deprived of the great personal satisfaction he derives from practice. The matters personal to Mr Rayney cannot override our fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and the maintenance of proper standards of legal practice. It is our view that Mr Rayney lacks the honesty and candour that are essential attributes for a legal practitioner.
[15] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [128] ‑ [129].
[16] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [126] ‑ [127].

Mr Rayney appealed both the findings of professional misconduct and the order for the transmission of a report to the Full Bench. The Court of Appeal dismissed the consolidated appeal on 2 August 2019.[17]
[17] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.

Relevant principles ‑ removal of a practitioners name from the Roll of Practitioners

The general principles relevant to determining whether the removal of a practitioners name from the Roll of Practitioners is an appropriate disciplinary sanction are well‑settled. The principles relevant to findings of intentionally misleading a court were recently summarised by the Full Court in Legal Profession Complaints Committee v Oud as follows:[18]
[18] Legal Profession Complaints Committee v Oud [2019] WASC 287 [17] ‑ [18]. (footnotes omitted)
Those principles include:
(a)The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession;
(b)Where the motion is to remove a practitioner from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner;
(c)Fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges;
(d)Removal from the roll is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice;
(e)Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner.
In relation to findings of dishonesty, the courts have repeatedly recognised the particular significance of a finding that a practitioner has intentionally misled a court. As this Court said in Legal Profession Complaints Committee v Waters:
'[A] finding that a practitioner has intentionally misled a court "is a matter of the utmost seriousness" and "raises serious questions as to the practitioner's fitness to practise". As was said by the Court of Appeal in Vogt v Legal Practitioners Complaints Committee:
"For a practitioner, in the course of his or her practice, intentionally to mislead anyone is a serious breach of the practitioner's professional duty. But the finding in the present case that the appellant intentionally misled the court is of particular significance. It goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice. We would respectfully adopt what was said in that respect by the Queensland Court of Appeal in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, a case involving a solicitor who (among other things) intentionally misled a court in relation to an affidavit relied upon to resist a summary judgment application and as to the availability of a witness. The court said:
'A practitioner's duty to the court arises out of the practitioner's special relationship with the court; it overrides the duties owed by a practitioner to clients or others ... The lawyer's duty to the court includes candour, honesty and fairness. ... The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated. (footnotes omitted)'"

Consideration of whether Mr Rayney is shown not to be a fit and proper person to be a legal practitioner

The first finding of professional misconduct was a finding in effect that Mr Rayney had committed a criminal offence by contravening the Surveillance Devices Act, which conduct warranted suspension from practice in itself, and concerned deceptive conduct, as the recording of the conversations were carried out without the knowledge or consent of Mrs Rayney, by concealing a dictaphone (upon which the conversations were recorded) from Mrs Rayney.
Importantly, the latter two findings by the Tribunal of professional misconduct, namely, intentionally misleading the Magistrates Court in 2009 involved dishonest conduct. As the Tribunal found, this dishonest conduct was not isolated to 2009.[19] Mr Rayney knowingly repeated the false evidence about the recording of his conversations with Mrs Rayney on three further occasions, namely in his witness statement and oral evidence in the Tribunal proceedings to review the Board's decision to cancel his practising certificate in October 2015, in his witness statement and oral evidence in the Supreme Court Defamation action in March 2017, and, most recently, in the misconduct proceedings before the Tribunal in December 2017.
[19] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [101] ‑ [102].
In the penalty proceedings before the Tribunal, evidence was given that Mr Rayney suffers from post-traumatic stress disorder (PTSD). The Tribunal, however, found that this medical condition did not explain nor excuse Mr Rayney's conduct. The Tribunal found:[20]
We accept that Mr Rayney suffers from PTSD, that he has suffered from PTSD since the death of Mrs Rayney in 2007 and that his previously excellent memory has been impaired so that he has had and continues to have difficulty remembering things. While Mr Rayney suffered the grief of the illness and death of his father and the stress in his marriage in 2007 there is no evidence or suggestion that Mr Rayney suffered PTSD before Mrs Rayney died. That is when he recorded their conversations without her consent.
The incidents which precipitated Mr Rayney's PTSD commenced with the disappearance and death of Mrs Rayney in 2007, before Mr Rayney gave his evidence in 2009. While PTSD may affect memory, there is no suggestion that it causes a person to have fictitious memories. PTSD could not have caused Mr Rayney to believe that he made the recordings to create a record of the falsity of the insinuation, when the insinuation had not then been made, nor could it have caused Mr Rayney to falsely recall that he had a conversation with Mrs Rayney in which Mrs Rayney consented to the recordings, nor could it have caused Mr Rayney to falsely recall that he placed the dictaphone he was using to record the conversations in a clearly visible position.
[20] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [51] ‑ [52].
In our view those observations are plainly apposite.
Fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges.[21]
[21] In re Davis [1947] HCA 53; (1947) 75 CLR 409, 420 (Dixon J); Legal Profession Complaints Committee v Thorpe [2008] WASC 9 [43]; Legal Profession Complaints Committee v Brennan [2010] WASC 198 [11].
Honesty, fairness and integrity are essential prerequisites to the right to practice law. The behaviour most likely to result in removal of a practitioner's name from the roll is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system in which he or she practices.[22]
[22] Legal Profession Complaints Committee v Brickhill [2013] WASC 369 [21].
The public is entitled to demand that practitioners maintain the highest standards of honesty and integrity in their dealings with the court and their clients.[23]
[23] Legal Profession Complaints Committee v Bower [2019] WASC 281 [40].
By his professional misconduct Mr Rayney has demonstrated a persistent propensity to engage in dishonest behaviour which is an anathema to a practitioner's fitness to practice. He has engaged in the utmost of serious professional misconduct by intentionally misleading the Magistrates Court and repeating his false evidence in further proceedings before this Court and in the Tribunal. By that sustained professional misconduct Mr Rayney has demonstrably failed to conduct himself with the honesty and candour required of every legal practitioner on the Roll of Practitioners. The effective functioning of the administration of justice in this State depends upon the honesty and candour of all legal practitioners who practice within its jurisdiction.
As officers of the court, legal practitioners owe duties to the court and the wider community which has a vital public interest in the proper administration of justice. The duty that practitioners owe, as officers of the court, to act honestly in their professional and personal lives is fundamental to the administration of justice. Public confidence in our justice system is undermined, and the system subverted, whenever that duty is breached.
There is nothing before this court which can be considered to be circumstances that might sufficiently mitigate, explain or excuse Mr Rayney's professional misconduct. Nor is there anything before the court which demonstrates that Mr Rayney accepts that he acted unprofessionally or that he is remorseful for his professional misconduct. To the contrary, despite the fact that Mr Rayney does not oppose the Committee's application to remove his name from the Roll of Practitioners, we note that in his affidavit sworn on 19 March 2018 (filed in the Tribunal for the purposes of the penalty proceedings) Mr Rayney maintained the position that he took before the Tribunal in December 2017, and did not acknowledge his wrongdoing.[24] Nor did his affidavit contain any statements upon which it could be found that he had any insight into, or was remorseful for, his professional misconduct.[25]
[24] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [102].
[25] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [101] ‑ [102].

Conclusion

For these reasons, we have determined that Mr Rayney is not a fit and proper person to remain a legal practitioner essentially because of his fundamental failure to adhere to his duties to the court to act honestly. His demonstrated willingness to engage in dishonest behaviour, and his persistent failure to appreciate the import and consequences of that behaviour, and the consequent negative impact that has rendered against the level of trust that should otherwise be reposed in him, by the court, his colleagues and clients, is so serious that the only appropriate order for the court to make was an order to remove Mr Rayney's name from the Roll of Practitioners.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith
21 APRIL 2020