Legal Profession Complaints Committee v Rayney [No 2]
[2018] WASAT 5 (S)
•14 MAY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [No 2] [2018] WASAT 5 (S)
MEMBER: JUSTICE P MARTINO (SUPPLEMENTARY PRESIDENT)
MR H DEMBO (SENIOR SESSIONAL MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)
HEARD: 6 APRIL 2018
DELIVERED : 18 APRIL 2018
PUBLISHED : 14 MAY 2018
FILE NO/S: VR 173 of 2015
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
LLOYD PATRICK RAYNEY
Respondent
Catchwords:
Nil
Legislation:
Legal Profession Act 2008 (WA), s 56(2), s 438, s 439, s 440, s 441
Surveillance Devices Act 1998 (WA), s 5(1)
Telecommunications (Interception and Access) Act 1979 (Cth)
Result:
Legal practitioner reprimanded for professional misconduct in unlawfully recording conversations
Report on findings of professional misconduct in knowingly giving false evidence made to the Supreme Court of Western Australia (full bench) with recommendation that practitioner's name be removed from the roll of persons admitted to legal profession under the Legal Profession Act 2008 (WA)
Legal practitioner's local practising certificate suspended until the determination of the Supreme Court (full bench)
Legal practitioner ordered to pay applicant's costs of proceedings in the sum of $90,994.74
Category: B
Representation:
Counsel:
| Applicant | : | Mr JC Vaughan SC and Mr ND Pope |
| 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
Attorney‑General v Bax [1999] 2 Qd R 9
Burgess v McGarvie [2013] VSCA 142
Council of the Queensland Law Society v Cummings [2004] QCA 138
In Re Drew (1920) 20 SR (NSW) 463
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society of New South Wales v Bannister [1993] NSWCA 157; (1993) 4 LPDR 24
Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
Legal Practitioners Complaints Committee v Masten [2011] WASC 71
Legal Practitioners Conduct Board v Le Poidevin [2001] SASC 242; (2001) 83 SASR 443
Legal Profession Complaints Committee and Bower [2017] WASAT 47 (S)
Legal Profession Complaints Committee and Park [2017] WASAT 89
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Profession Complaints Committee v Palumbo [2005] WASCA 129
Legal Professional Complaints Committee and Rayney [2018] WASAT 5
Mellifont v The Queensland Law Society Inc [1981] Qd R 17
Mijatovic v Legal Profession Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553
Queensland Law Society Inc v Carberry [2000] QCA 450
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Re Maraj (a legal practitioner) (1995) 15 WAR 12
Stirling v Legal Services Commissioner [2013] VSCA 374
REASONS FOR DECISION OF THE TRIBUNAL:
On 25 January 2018, we published reasons for our decision on the application by the applicant (LPCC) for a finding that the respondent (Mr Rayney) had engaged in professional misconduct[1]. We found that Mr Rayney had engaged in professional misconduct by:
1.recording conversations between himself and his wife on a dictaphone without his wife's knowledge or consent, in contravention of s 5(1) of the Surveillance Devices Act 1998 (WA);
2.swearing an affidavit to be read in the Magistrates Court in which Mr Rayney gave evidence on oath which he knew to be false, with the intention of misleading the court; and
3.giving evidence on oath before a Magistrate which he knew to be false, with the intention of misleading the court.
[1] Legal Professional Complaints Committee and Rayney [2018] WASAT 5 (Reasons)
Following the publication of the Reasons we received materials from the LPCC and Mr Rayney on the questions of what penalty should be imposed as a consequence of Mr Rayney's professional misconduct and whether to grant the LPCC's application for costs.
The parties conferred on the LPCC's application for costs and agreed to an order that Mr Rayney pay to the LPCC its costs of the proceedings in the amount of $90,994.74.
A hearing on the question of penalty took place on 6 April 2018.
These reasons for decision on penalty are supplementary to the Reasons and should be read with them.
The submissions of the LPCC as to the appropriate orders
The LPCC submits that the appropriate orders are:
1.an order under s 438(2)(a) and s 438(4)(b) of the Legal Profession Act 2008 (WA) (2008 Act) that the Tribunal make and transmit a report to the Full Bench of the Supreme Court with a recommendation that Mr Rayney's name be removed from the roll of practitioners; and
2.an order under s 438(3)(a) of the 2008 Act that Mr Rayney's local practising certificate be suspended until the determination of the Supreme Court.
The submissions of counsel for Mr Rayney as to the appropriate orders
Counsel for Mr Rayney submits that the appropriate penalties are the imposition of a suspension, a reprimand and a fine.
The principles to be applied when considering the penalty to be imposed for professional misconduct
Section 438(2) of the 2008 Act provides that if, after a hearing in relation to a referral under Part 13 in respect of a legal practitioner, the Tribunal is satisfied that the practitioner is guilty of professional misconduct the Tribunal may make and transmit a report on the finding to the Supreme Court (full bench) or make any of the orders specified in ss 439, 440 and 441. If the Tribunal transmits a report to the Supreme Court (full bench) the Tribunal may make a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the 2008 Act[2] and, pending the determination of the Supreme Court, make an order that the practitioner's local practising certificate be suspended for a specified period and an order that conditions be imposed on the practitioner's local practising certificate[3].
[2] s 438(4)(b) 2008 Act
[3] s 438(3) 2008 Act
The orders that may be made under s 439 include an order that the practitioner's local practising certificate be suspended for a specified period or cancelled, an order that a local practising certificate not be granted to the practitioner before the end of a specified period, an order that specified conditions be imposed on the practitioner's practising certificate and an order that the practitioner be reprimanded. Section 440 provides for orders that may be made when the practitioner has an interstate practising certificate. Section 441 provides that the Tribunal may make orders including a fine not exceeding $25,000, an order requiring the practitioner to undertake further legal education, a compensation order, an order that the practitioner undertake a period of practice under supervision, an order that the practitioner's practice be subject to periodic inspection and an order that the practitioner undergo counselling or medical treatment or act in accordance with the medical advice given to the practitioner.
In Khosa v Legal Profession Complaints Committee [2017] WASCA 192 Murphy JA and Beech JA made the following observations at [188] [195]:
188The court's, and the Tribunal's, jurisdiction with respect to the regulation of the 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.[4]
[4] See, for example, Re Maraj (a legal practitioner) (1995) 15 WAR 12, 24 25; Detata [37]
189The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in such conduct,[5] as well as personal deterrence. [6]
[5] Attorney‑General v Bax [1999] 2 Qd R 9, 22; Queensland Law Society Inc v Carberry [2000] QCA 450 [38]; In Re Drew (1920) 20 SR (NSW) 463, 466; Law Society of New South Wales v Bannister [1993] NSWCA 157; (1993) 4 LPDR 24, 27 ‑ 28; New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553 [77].
[6] Bannister (27 ‑ 28); Hamman [77]; Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; (2007) 27 VAR 1 [30], [46]; Legal Practitioners Conduct Board v Le Poidevin [2001] SASC 242; (2001) 83 SASR 443 [19].
190In New South Wales Bar Association v Hamman,[7] Mason P said, with reference to the decision of Giles AJA in Law Society of New South Wales v Foreman (No 2): [8]
[7] Hamman [79].
[8] Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408, 471.
Giles AJA described the basis of the court's jurisdiction: at 470 1. Citing Bannister and other cases, he referred to the protective function of general deterrence in the following terms (at 471):
'But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.'
These references to the public's perception of the court's reaction to the professional misconduct do not make the court hostage to the public's assumed sense of anger at the misconduct uncovered. The court must be satisfied that its enunciated views give proper weight to widely and reasonably held public attitudes to practitioners in the context of the administration of justice generally and in the particular case.
191In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. [9]Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. [10]In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'. [11]
192Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, [12]or that the practitioner is permanently or indefinitely unfit to practise, [13]striking off rather than suspension will (at least ordinarily) be the appropriate response.
193A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. [14]A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct. [15]
194A suspension order may also be a valuable measure [16]by way of general or personal deterrence, [17]for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person[18]. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.
195Fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct[19]. The same is true of the question of the appropriate penalty generally.
Whether separate penalties should be imposed for each instance of professional misconduct
[9] Law Society of New South Wales v McNamara (1980) 47 NSWLR 72, 76; Mellifont v The Queensland Law Society Inc [1981] Qd R 17, 31; Bax (21 - 22); Carberry [40]; In re a Practitioner (1984) 36 SASR 590, 593 (Jacobs J).
[10] Le Poidevin [37].
[11] Camp [80].
[12] Re A Practitioner (593); Hamman [100]; Camp [80].
[13] New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 [26] ‑ [28].
[14]The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 184.
[15] Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 [35].
[16] McNamara (76).
[17] In Re Drew (466).
[18] Council of the Queensland Law Society v Cummings [2004] QCA 138 [22] ‑ [23]; Burgess v McGarvie [2013] VSCA 142 [69], [73].
[19] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [21].
We have found that Mr Rayney has engaged in three instances of professional misconduct. In general it is preferable to impose a separate penalty for each instance of professional misconduct, if necessary adjusting each penalty to ensure that the total penalty is appropriate. However where the facts of the case are inextricably interwoven a global penalty may be applied for multiple instances of professional misconduct[20].
[20]Stirling v Legal Services Commissioner [2013] VSCA 374 [73]-[75]
The evidence given by Mr Rayney in both his affidavit and in his oral evidence before a Magistrate concerned Mr Rayney's conduct in recording his conversations with Mrs Rayney. The evidence was given for the purposes of the same matter in the Magistrates Court. In our view the two instances of professional misconduct in knowingly giving false evidence are inextricably linked and it is appropriate to impose one penalty for them.
While the instance of professional misconduct in unlawfully recording conversations without consent does have a factual relationship with the giving of false evidence about the recording of the conversations, the unlawful recording of conversations is of a different nature to knowingly giving false evidence in that it does not involve any element of deceiving a court. We do not consider the unlawfully recording of conversations to be inextricably linked with the giving of false evidence. We have decided to impose a separate penalty for the first instance of professional misconduct.
Materials filed by Mr Rayney
For the purposes of the hearing as to penalty, the solicitors for Mr Rayney filed an affidavit made by Mr Rayney on 19 March 2018, a report dated 18 March 2018 from Professor Jonathon Foster, consultant neuropsychologist, a report dated 21 March 2018 from Dr Murray Chapman, consultant psychiatrist, a report from Ms Jennifer Moody, provisional psychologist and family therapist dated 23 March 2018, a book of 30 character references and an outline of submissions dated 19 March 2018. The submissions also referred to the evidence of Dr Brett Bowden, which we summarised at [55] [63] of the Reasons.
Ms Moody's report
Ms Moody has consulted informally with the Rayney family since 2013. Ms Moody was introduced to Mr Rayney by a mutual friend. Over 2013 and 2014 Ms Moody met with Mr Rayney for approximately one to two hours approximately two or three times a month. Mr Rayney did not seek formal psychological assistance from Ms Moody. Ms Moody formed the impression that Mr Rayney was suffering from undiagnosed and untreated trauma-related symptoms.
Several times over the years, for educational and conversational purposes, Ms Moody asked Mr Rayney to complete well known psychological trauma tests. These tests revealed that the experiences that Mr Rayney had become used to fitted the diagnostic criteria for PostTraumatic Stress Disorder (PTSD). Ms Moody reported that Mr Rayney showed high scores for dissociative symptoms of PTSD and described lapses of memory and concentration consistent with this condition.
The reports of Professor Foster and Dr Chapman
Dr Chapman interviewed Mr Rayney on three occasions between 7 February 2018 and 7 March 2018. To help validate his cognitive testing of Mr Rayney Dr Chapman referred Mr Rayney to Professor Foster for neuropsychological testing.
In his report, Professor Foster said that Mr Rayney presented for neuropsychological assessment in which 'measures of ability were administered to evaluate inter alia overall intellectual capacity, attention/concentration, memory, visuospatial abilities, language and executive functioning'. In addition to those tests 'Mr Rayney was administered several measures that were designed to evaluate whether he was presenting in a truthful and valid manner'. Professor Foster said that Mr Rayney 'performed above threshold on several measures of validity that were administered in an interspersed manner during the assessment … indicating that he was presenting in a truthful and valid manner throughout the assessment'.
Dr Chapman said in his report that one of his sources of information was a report from Professor Foster dated 19 March 2018 and that 'Professor Foster's report indicates that Mr Rayney performed at or above anticipated levels with respect to all cognitive tests administered and that he presented in a truthful and valid manner throughout the assessment'. The report from Professor Foster that we have been provided with is dated 18 March 2018 and does not appear to us to indicate that Mr Rayney performed at or above anticipated levels with respect to the cognitive tests administered. At the hearing on 6 April 2018 we enquired of counsel for Mr Rayney whether Dr Chapman had a different report from Professor Foster to the report that we had. Counsel informed us that he understood that we have the same report from Professor Foster as Dr Chapman. Nothing appears to turn on the fact that Dr Chapman's report says that Professor Foster's report indicates that Mr Rayney performed at or above anticipated levels on cognitive tests when Professor Foster's report does not, on our reading of it, do so.
Dr Chapman diagnosed Mr Rayney as suffering from PTSD. That diagnosis is on the basis of Mr Rayney 'having experienced multiple stressors, including the death of his wife, his treatment by the police, being accused and tried for her murder, and him experiencing the ongoing symptoms elicited on contemporary mental state examination, in the symptom clusters of intrusive, avoidant, negative cognition and mood, arousal and reactivity'.
Dr Chapman said: 'It is common for those who suffer from PTSD to have both persistent vivid 'unedited' recollections of the traumatic experience which may also be fragmented or incomplete memories of the trauma … There is evidence to suggest that memory dysfunction may be both a pre-existing risk factor for PTSD and a consequence of the disorder. Specifically, it is memory of facts and events (consciously recalled declarative memory), most often related to the trauma or traumas, that is affected in PTSD.' Dr Chapman also said that 'it is possible for PostTraumatic Stress Disorder (PTSD) to affect a person's declarative memory, as well as their concentration and cognitive performance more generally'.
Mr Rayney's affidavit
In his affidavit of 19 March 2018 Mr Rayney gives evidence of his response to the findings in the Reasons, the trauma and stress he has suffered in the last eleven years, the restrictions on his practice and his undertakings not to practice, the difficulties he has encountered in rebuilding his practice, his current financial position and his approach to the practice of law.
Mr Rayney's response to the Reasons and the trauma and stress he has suffered in the last 11 years
Mr Rayney gives evidence that he is acutely aware of and distressed by the findings in the Reasons. He also gives evidence that he appreciates and accepts the fundamental importance of a legal practitioner displaying honesty and integrity at all times and of a legal practitioner commanding the trust and confidence of the profession, their clients and the judiciary. Mr Rayney maintains that he genuinely believes that his recollection of events is as he has given in evidence to us.
At the request of his legal advisor Mr Martin Bennett, Mr Rayney has attended on Dr Chapman on three occasions since delivery of the Reasons.
After Mrs Rayney was murdered, Mr Rayney has suffered difficulties sleeping, concentrating and functioning. He has put considerable effort into taking care of and protecting his daughters.
In September 2007 Mr Rayney attended upon Dr Bowden who diagnosed Mr Rayney as suffering PTSD and severe adjustment disorder. For a short period of time Mr Rayney took the anti-depressant medication prescribed by Dr Bowden.
Mr Rayney has deposed that prior to 2007 he had an excellent memory, in which he took pride. He has noticed that since 2007 his memory has diminished and he has had difficulty in recalling many of the events which took place in 2007 that relate to Mrs Rayney, her disappearance and her death.
Mr Rayney has deposed that he is aware of the importance the Tribunal will place on the factors of contrition and recognition of wrongdoing. He has also deposed that he is unable honestly to express either contrition or recognition of his wrongdoing.
Mr Rayney's restrictions on and suspension from practice
Mr Rayney was charged with the wilful murder of Mrs Rayney on 8 December 2010. On 1 March 2011 Mr Rayney agreed, at the request of the Legal Practice Board (LPB), 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.
Mr Rayney was acquitted of the charge of wilful murder on 1 November 2012. On 16 November 2012 the LPB issued a notice to Mr Rayney of its intention to cancel Mr Rayney's practising certificate, pursuant to s 56(2) of the 2008 Act. On 27 November 2012, at the request of the LPB, Mr Rayney provided to the LPB an undertaking not to practice law until a detailed submission could be provided to the LPB in response to its notice dated 16 November 2012. Mr Rayney's response was provided on 10 December 2012.
On 17 December 2012, at the request of the LPB, Mr Rayney provided to the LPB an undertaking that he had ceased engaging in legal practice and that he would not recommence engaging in legal practice without first giving the LPB 42 days' notice of his intention to do so.
In May 2015 Mr Rayney was acquitted of two charges of breaching the Telecommunications (Interception and Access) Act 1979 (Cth).
On 18 May 2015 Mr Rayney gave notice to the LPB of his intention to resume practice in 42 days' time. On 2 June 2015 Mr Rayney received notice from the LPB of the LPB's intention to cancel his practising certificate which invited him to make written representations in relation to the matters contained in the notice by 24 June 2015. On 24 June 2015 Mr Rayney provided written representations to the LPB. On 26 June 2015 the LPB invited Mr Rayney to provide further written representations. At the request of the LPB Mr Rayney provided to the LPB an extension of his undertaking not to engage in legal practice until 20 July 2015. On 6 July 2015 Mr Rayney provided further written representations to the LPB.
On 17 July 2015 Mr Rayney received notice from the LPB that his practising certificate was cancelled from 21 July 2015. Mr Rayney's practising certificate remained cancelled until it was renewed by the LPB following the decision of the Tribunal in Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 on 10 February 2016.
Mr Rayney therefore had a condition imposed on his practising certificate which meant that he was unable to appear in jury trials from 1 March 2011 until 20 July 2015, gave undertakings not to practice from 27 November 2012 until 20 July 2015 and was unable to practice law because he did not have a practising certificate in the period from 21 July 2015 until 10 February 2016. The total of the period for which he has either been restricted in his ability to practice or unable to practice was almost five years.
Mr Rayney's difficulties in rebuilding his legal practice and his financial position
In July 2015, when Mr Rayney's practising certificate was cancelled, Mr Rayney's financial position was very poor as a result of the costs incurred to fund his legal defences. After he obtained his practising certificate in February 2016 Mr Rayney returned to legal practice. He has received a limited number of briefs. He has found it difficult to obtain instructions from solicitors. Two solicitors currently brief Mr Rayney. All of the instructions he has received have been in criminal law matters. He has been unsuccessful in obtaining work in other areas in which he practised before August 2007.
If Mr Rayney is unable to earn income as a legal practitioner he will have no ability to make mortgage repayments to the bank which holds a mortgage over his home. He anticipates that the bank will enforce its right to take possession of and sell the home to satisfy the mortgage. Mr Rayney does not have any equity in his home.
As a result of the significant adverse publicity that Mr Rayney has received he considers it unlikely that he will be able to secure consistent employment of any kind.
On 20 December 2017 Mr Rayney was successful in his defamation action in the Supreme Court. He was awarded general damages of $846,180.82 inclusive of interest and damages for economic loss of $1,777,235 inclusive of interest. He has commenced an appeal against the assessment of damages. Mr Rayney's liabilities exceed the judgment sum by in excess of $500,000.
Mr Rayney's evidence as to his future conduct
Mr Rayney has deposed that he has always loved practising law. It has been his ambition to be a lawyer all of his life. He has deposed that if he lost the ability to practice law he would find that both financially and emotionally crushing.
Mr Rayney has deposed as to the difficulties and isolation that he has suffered since the death of Mrs Rayney. He has deposed that the practice of law has helped to endure those difficulties and, he anticipates, will do so in the future.
Mr Rayney has deposed that for these reasons he does not consider that there would be any risk of reoccurrence of his professional misconduct.
Mr Rayney's character references
Mr Rayney has provided the Tribunal with 30 character references. With one exception all of the authors of the character references were provided with the Reasons. There was a good reason for the Reasons not having been provided to one person. That person does know the conclusions that we reached in the Reasons.
The referees are from close members of Mr Rayney's family, friends and professional colleagues. The professional colleagues include senior members of the legal profession.
All of the authors of the character references have known Mr Rayney for many years. The references attest to the high regard in which Mr Rayney is held by members of the community and members of the legal profession. Many of the authors express the view that the findings reached in the Reasons as to Mr Rayney's conduct do not accord with the behaviour of Mr Rayney that they have observed. They regard Mr Rayney as a person of integrity and honesty.
Many of the referees speak to the importance to Mr Rayney of his ability to practice law.
A senior member of the legal profession has said that the findings in the Reasons would not seem to fit with his knowledge of Mr Rayney over a long period of time, that in his opinion Mr Rayney is in all respects a fit and proper person to continue legal practice and that Mr Rayney has his unreserved trust at a professional level. The reference from this senior member of the legal profession does not explain how it is that he holds the view that a person who has wilfully given false evidence to mislead the court is a fit and proper person to continue legal practice.
Mr Rayney's memory
In his outline of written submissions on penalty and costs, counsel for Mr Rayney submitted that it was clear that Mr Rayney's memory of his conduct and the events which occurred at the time may be unreliable or impaired, that Mr Rayney had a genuine belief that the evidence he gave which was the subject of our findings in the Reasons was true and correct, that Mr Rayney accepted that he may have been mistaken as to his evidence and that his memory of his dealings with Mrs Rayney in relation to the recordings is incorrect, that Dr Chapman's evidence demonstrated that potential dissociative effects of post-traumatic and traumatic stress disorders on a sufferer's memory such that, in Mr Rayney's case, his memory of events the subject of our findings in the Reasons could be unreliable and erroneous and that Mr Rayney's memory has been severely affected by the traumatic events which took place in and from 2007 such that his genuine belief as to what transpired may be mistaken.
We have summarised earlier in these reasons Mr Rayney's evidence as to his memory in his affidavit of 19 March 2018 and the reports of Dr Chapman and Ms Moody. We did not find in Mr Rayney's affidavit an acknowledgement that he may have been mistaken in his evidence of the matters on which we made findings in the Reasons. We do not read Dr Chapman's report as saying that Mr Rayney's memory of events the subject of our findings in the Reasons could be unreliable and erroneous nor that Mr Rayney's memory has been severely affected by the traumatic events that Mr Rayney has experienced.
In the Reasons we have found that Mr Rayney gave evidence which he knew to be false. The hearing on 6 April 2018 was as to the question of penalty and costs following from the Reasons. It was not an opportunity to relitigate the issues we had determined.
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.
Conduct by Mr Rayney after the conduct constituting professional misconduct
Our findings that Mr Rayney swore an affidavit in which he gave evidence on oath which he knew to be false with the intention of misleading the court and that Mr Rayney gave evidence which he knew to be false on oath before a Magistrate with the intention of misleading the court were findings of dishonestly giving evidence. Both of those instances of professional misconduct occurred in 2009. As the Court of Appeal noted in Khosa v Legal Profession Complaints Committee at [195] fitness to practice and the appropriate penalty to be imposed are to be determined at the time of the relevant hearing, not at the time of the misconduct.
In its written submissions as to penalty and costs dated 9 February 2018 the LPCC submitted at [6] and [7] that in determining the appropriate penalty it was appropriate to have regard to Mr Rayney repeating the knowingly false evidence that the dictaphone recordings were made with Mrs Rayney's knowledge and consent:
1.in October 2015 in his evidence in the Tribunal on the hearing of his application to review the decision of the LPB to cancel his practising certificate;
2.in March 2017 in his evidence in the trial in the Supreme Court of Mr Rayney's defamation action; and
3.at the hearing of this application.
In Mijatovic v Legal Profession Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 Beech AJA said at [284], after reviewing authorities on the limits, arising from the requirements of procedural fairness, upon the use of adverse findings against a practitioner in determining the question of a practitioner's continuing fitness to practice:
In my opinion, the position may be summarised as follows. In the course of making findings as to contested matters of fact, the Tribunal can consider the evidence of the various witnesses, including the practitioner, in the ordinary way. In the course of so doing, it may find that a particular witness, including a practitioner, was a dishonest witness and reject the witnesses' evidence on that basis. However, such a finding of dishonesty may not be used to determine the appropriate orders to be made in respect of the practitioner unless one of two conditions exists:
(a)the complaint has been amended to complain of the practitioner's dishonesty in relation to the evidence; or
(b)the way in which the proceedings were run means that the practitioner was on notice that there was a risk of a finding of dishonest evidence being made and used by the disciplinary body in determining what final order should be made, and the practitioner has an adequate opportunity to deal with the prospect of such a finding.
At the commencement of the hearing of its application the LPCC gave notice to Mr Rayney that it intended to rely upon the evidence given by Mr Rayney in October 2015 and March 2017 as relevant to the penalty to be imposed[21] .
[21] ts 6-8, 48, 50-54, 5 December 2017
By the oral submissions made on 5 December 2017 and the written submissions made on 9 February 2018 the LPCC gave notice to Mr Rayney that there was a risk of a finding that the evidence given by him in October 2015 and March 2017 was dishonest and that such a finding might be used by the Tribunal in determining what final order should be made. By the written submissions made on 9 February 2018 the LPCC gave notice to Mr Rayney that there was a risk of a finding that the evidence given by him in this application was dishonest and that such a finding might be used by the Tribunal in determining what final order should be made.
On the hearing in the Tribunal of his application to review the decision of the LPB to cancel his practising certificate Mr Rayney gave evidence in his witness statement dated 18 October 2015:
•at [732] that a small number of recordings were made by him using a hand held dictaphone, visible to Mrs Rayney, of some discussions between Mrs Rayney and him;
•at [737] that Mrs Rayney was aware that the conversations were being recorded and that the dictaphone was visible to both of them each time that they spoke in person;
•at [744] that Mr Rayney told Mrs Rayney the first time that he tried to record their conversation that he was going to do so;
•at [748] that Mrs Rayney could not care less that Mr Rayney tried to record their conversations, it was almost like her saying 'go ahead, give it your best shot';
•at [752] - [755] that the reason that he did not announce at the beginning of each recording the date and time of the recording or that Mrs Rayney had consented to the recording was that he wanted any discussion to be free flowing, that to announce those matters would make what followed would be a formal event in which Mrs Rayney would be guarded in what she said or would not want to take part and would hint that the purpose of the recording was for it to be used at a later time in some legal way against Mrs Rayney, that Mr Rayney did not tell Mrs Rayney the purpose of the recording, it was sufficient for her to know that the conversations were to be recorded and for her to agree to converse and that the matters discussed in the recordings did not refer to the insinuation, it was hardly a topic that Mr Rayney could have approached immediately the dictaphone was turned on, Mr Rayney thought Mrs Rayney was more likely to say something about the issue if their conversation led on to that topic, rather than it being the sole topic; and
•at [759] that the dictaphone was visible to Mrs Rayney for each of the recordings.
In his oral evidence in the Tribunal on his application to review the decision of the LPB to cancel his practising certificate Mr Rayney gave evidence that the conversations with Mrs Rayney which he recorded were recorded with her consent[22], that he told Mrs Rayney that he was going to make a record of what they said[23], that the first time he used a dictaphone to record their conversation he produced it, showed it to Mrs Rayney and recorded their face to face conversation[24], that he made known to Mrs Rayney that he was recording the two telephone conversations[25], that he had asked Mrs Rayney to consent to him recording their conversations and he understood that Mrs Rayney agreed to all of the conversations being recorded[26], that he asked for Mrs Rayney's agreement to the recording of their conversations but he did not tell her that the purpose of the recording[27], for the telephone calls that were recorded he told Mrs Rayney that they were being recorded[28] and that the first time he asked her for her agreement to the recording of their conversations Mrs Rayney conveyed to him 'go ahead, give it your best shot'[29].
[22] ts 209, 22 October 2015
[23] ts 209, 22 October 2015
[24] ts 210, 22 October 2015
[25] ts 210-211, 22 October 2015
[26] ts 229, 22 October 2015
[27] ts 238, 22 October 2015
[28] ts 239 and 240, 22 October 2015
[29] ts 239, 22 October 2015
In the trial of his defamation action Mr Rayney gave evidence in his witness statement dated 7 March 2017 that had been filed at the Supreme Court:
•at [244] that Mrs Rayney was aware that the conversations between Mr Rayney and Mrs Rayney were being recorded, the dictaphone was visible to both of them each time that they spoke in person;
•at [251] that he told Mrs Rayney the first time that he tried to record their conversation that he was going to do so;
•at [255] that when he told Mrs Rayney that he was going to record their conversations that Mrs Rayney's response was that she could not care less, it was almost like her saying 'go ahead, give it your best shot';
•at [259] - [261] that the reason that he did not announce at the beginning of each recording the date and time of the recording or that Mrs Rayney had consented to the recording was that he wanted any discussion to be free flowing, that to announce those matters would make what followed would be a formal event in which Mrs Rayney would be guarded in what she said or would not want to take part and it would hint that the purpose of the recording was for it to be used at a later time in some legal way against Mrs Rayney, that Mr Rayney did not tell Mrs Rayney the purpose of the recording, it was sufficient for her to know that the conversations were to be recorded and for her to agree to converse; and
•at [267] that the dictaphone was visible to Mrs Rayney for each of the recordings.
In his oral evidence at the trial of his defamation action Mr Rayney gave evidence that the evidence that he gave in the Tribunal on his application to review the decision of the LPB that the first time he told Mrs Rayney that he intended to record their conversations she had agreed to him doing so and that every time thereafter she had agreed by participating and that he told Mrs Rayney that he was going to make a record of what they said was true[30], that the first time he recorded their conversations Mr Rayney showed Mrs Rayney the recorder and told her that he was making a record of what they said[31] and that prior to that first conversation he recorded Mr Rayney told Mrs Rayney that he was going to make a record of what they said[32].
[30] ts 614-615, 7 March 2017
[31] ts 765, 9 March 2017
[32] ts 765, 9 March 2017
We have found that Mr Rayney's evidence in his affidavit of 2 February 2009 that he recorded his conversations with Mrs Rayney in an attempt to create a record that the insinuation was false, his evidence that when recording the in person conversations a handheld dictaphone was visible to both Mr Rayney and Mrs Rayney and his evidence that Mr Rayney made Mrs Rayney aware that their telephone conversations would be recorded was false to Mr Rayney's knowledge[33]. We have found that Mr Rayney's oral evidence in the Magistrates Court on 19 November 2009 that the contents of his affidavit of 2 February 2009 was true and correct to the best of his belief, his evidence that Mrs Rayney had consented to Mr Rayney recording their conversations, his evidence that the recording of the conversations was done with Mrs Rayney's consent, his evidence that when he recorded the telephone conversations that are on the compact disc he told Mrs Rayney at the commencement of the conversation that he was going to record it, his evidence that when he recorded their conversations that were in person the dictaphone was in view of Mrs Rayney and his evidence he did not at any time conceal the dictaphone was false to Mr Rayney's knowledge[34]. In making those findings we rejected Mr Rayney's evidence to us on those matters[35].
[33] Reasons [338]-[351]
[34] Reasons [352]-[353]
[35] Reasons [279], [294], [334]
As we have said earlier in these reasons at [48] [52] we accept that Mr Rayney suffers and has suffered from PTSD and that he has difficulty remembering things. However we do not accept that it could cause him to have fictitious memories. Nor do we consider that Mr Rayney could be mistaken about the important matters on which he gave evidence to which we have referred at [58] [62] of these reasons. We are satisfied that when Mr Rayney gave the evidence on these matters in the Tribunal and the Supreme Court he did so knowing that the evidence was untrue.
The fact that Mr Rayney knowingly gave false evidence on those three occasions does not add to the penalty that is appropriate for the three instances of professional misconduct. However it does mean that we cannot decide the penalty that is appropriate on the basis that the professional misconduct in giving false evidence in the affidavit of 2 February 2009 and the oral evidence of 19 November 2009 were isolated instances.
Twelve relevant matters
In Legal Profession Complaints Committee and Bower [2017] WASAT 47 (S) [16] and Legal Profession Complaints Committee and Park [2017] WASAT 89 [26] the Tribunal listed twelve matters that may require consideration in determining an appropriate sanction for professional misconduct. The matters are not mutually exclusive and the list is not exhaustive. Both the LPCC and counsel for Mr Rayney addressed submissions to those twelve matters.
Matter 1 Any need to protect the public against further misconduct by the practitioner
The LPCC submits that there is a need to protect the community against further misconduct by Mr Rayney. It submits that the conduct was extremely serious, shows a lack of honesty and integrity and was not isolated.
Counsel for Mr Rayney submits that Mr Rayney's conduct the subject of the findings of professional misconduct occurred in the context of his personal life in 2007 (11 years ago) and 2009 (9 years ago) in the most extraordinary of circumstances which are unlikely to ever be repeated. He submits that it is clear that Mr Rayney's memory of his conduct and the events which occurred at the time may be unreliable or impaired and that this should not lead the Tribunal to conclude that Mr Rayney cannot be trusted to give evidence honestly and candidly in the future. He submits that the Tribunal can have confidence that, as the conduct occurred under extreme stress when Mr Rayney was attempting to cope with the most traumatic of circumstances, there is no need to protect the public from any repetition of the conduct in the future and that apart from the repetition of his prior evidence Mr Rayney has an impeccable professional record and reputation.
It is our view that in considering the stress that Mr Rayney was under at the time that the professional misconduct occurred it is necessary to distinguish between the misconduct in 2007 and the misconduct in 2009. In 2007 Mr Rayney was suffering the grief of the illness and death of his father and there were significant disputes between Mr Rayney and Mrs Rayney. Eventually their marriage broke down in July 2007. While these matters were no doubt distressing for Mr Rayney it is our view that they do not in any way justify or excuse Mr Rayney's conduct in unlawfully recording his conversations with Mrs Rayney without her consent.
We accept that in 2009 Mr Rayney was under considerable stress and that he was affected by the trauma he had suffered. Personal circumstances are relevant where they can satisfactorily explain the practitioner's conduct[36]. The stress and trauma that Mr Rayney had suffered would be of considerable significance if his professional misconduct had consisted of conduct which did not constitute dishonesty.
[36] Legal Practitioners Complaints Committee v Masten [2011] WASC 71 [27]
However it is our view that the obligation of a legal practitioner to be honest when giving evidence is so fundamental that the stress and trauma that Mr Rayney was suffering are of little significance. Practitioners are required to be honest when giving evidence, whatever their personal difficulties. Mr Rayney's conduct demonstrates that there is a risk that there are circumstances in which Mr Rayney's honesty and integrity cannot be relied upon.
We bear in mind that Mr Rayney has no instances of misconduct apart from the matters about which this application is concerned. We also bear in mind that by reason of the importance of legal practice to him, Mr Rayney is motivated not to engage in professional misconduct in the future. However it is also relevant to note that Mr Rayney's misconduct was sustained. He did not record one conversation, but several. He gave false evidence in his affidavit of 2 February 2009 and then again in his oral evidence on 19 November 2009. He has repeated his false evidence on three occasions since then, most recently in December 2017 in this application.
It is our view that there is a need to protect the public against further misconduct by Mr Rayney.
Matter 2 The need to protect the public through general deterrence of other practitioners from similar conduct
The LPCC submits that there is a need to impose a penalty that provides general deterrence. In its written submissions it quotes the Tribunal in Legal Profession Complaints Committee and Bower at [38]:
The integrity of practitioners is an essential part of our legal system. A penalty for [the practitioner's] conduct must emphasise to other practitioners the need to be scrupulously honest with courts and tribunals …
Counsel for Mr Rayney accepts that, when viewed in isolation from the particular circumstances of the case, dishonest conduct by legal practitioners necessitates the protection of the public and warrants the imposition of penalties that provide general deterrence directed to other practitioners. However, he submits, there are significant mitigating factors which justify the Tribunal imposing a period of suspension, a reprimand and a fine.
It is our view that general deterrence is a matter of relevance in this case. The protection of the public requires that practitioners who might be tempted to break the law or to give dishonest evidence know that if they do engage in such conduct appropriate penalties will be imposed. Matters personal to Mr Rayney, including mitigating matters, remain relevant and we need to bear them in mind in deciding upon the appropriate penalty.
Matter 3 The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions
The LPCC submits that an appropriate penalty is required, not only to provide general deterrence to legal practitioners but also to reassure the public that such conduct on the part of lawyers will not be tolerated.
Counsel for Mr Rayney submits that the issues he submitted were relevant to matter 2 are also relevant to this matter.
It is our view that in arriving at the appropriate penalty we need to have regard to the seriousness of the professional misconduct so that the penalty that is imposed is appropriate for Mr Rayney's misconduct. Matters personal to Mr Rayney, including mitigating matters, remain relevant.
Matter 4 In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner
The LPCC submits that Mr Rayney's conduct in knowingly giving false evidence with intent to mislead the Magistrates Court involved serious dishonesty. It submits that the dictaphone recordings were made by Mr Rayney knowing that he was acting unlawfully and demonstrated his disregard for the law. The LPCC refers to the findings of the Tribunal in which we have rejected Mr Rayney's evidence and submits that the public and other practitioners are unable to rely on Mr Rayney's honesty and integrity. The LPCC submits that it is relevant that even on Mr Rayney's evidence he engaged in subterfuge and refers to our reference in the Reasons at [289] to the fact that Mr Rayney did not tell Mrs Rayney that his real purpose in making the recordings was to try to obtain an acknowledgement that the insinuation was unfounded and that she knew it was false.
Counsel for Mr Rayney submits that it is clear from the references provided on behalf of Mr Rayney that members of the public and the profession to whom Mr Rayney is known continue to trust him implicitly and continue to maintain this view in light of the Tribunals reasons and finding.
In our view the fact that, on Mr Rayney's evidence, he did not tell Mrs Rayney his real purpose in making the recordings is irrelevant. If Mr Rayney had obtained Mrs Rayney's consent to the making of the recordings but had not told her his real purpose in making them he would not have contravened the Surveillance Devices Act. However Mr Rayney did not obtain Mrs Rayney's consent to the making of the recordings and it is on that basis that we have found that Mr Rayney engaged in professional misconduct.
The need for the public and practitioners to be able to place reliance on Mr Rayney's word is, in our view, a relevant matter.
Mr Rayney has provided references from many members of the public and legal practitioners, including very senior legal practitioners, who attest to his good character and continue to have confidence in him and their ability to rely upon his word. The referees have been provided with or informed of our reasons, but maintain their views.
We have found that Mr Rayney has knowingly given false evidence on oath with the intention of misleading the Magistrates Court. Notwithstanding the references that have been provided it is our view that by that conduct Mr Rayney has placed in doubt the ability of the public and fellow practitioners to place reliance upon his word.
Matter 5 Whether the practitioner breached an Act, regulations, guidelines or code of conduct used by the relevant professional body and whether he did so knowingly
The LPCC has referred to our findings that the conduct associated with the dictaphone recordings was in contravention of s 5(1) of the Surveillance Devices Act and that Mr Rayney knew that he was acting unlawfully. The LPCC also submits that the conduct in giving false evidence on oath was analogous to the crime of perjury s 124 Criminal Code (WA).
Counsel for Mr Rayney has also noted that we have found that Mr Rayney's conduct breached s 5(1) of the Surveillance Devices Act.
We have already referred to our views of the serious nature of Mr Rayney's professional misconduct. It is our view that on the facts of this case matter 5 does not require separate consideration from the matters that we have referred to earlier.
Matter 6 Whether the practitioner's conduct demonstrated incompetence
The LPCC submits that nothing in Mr Rayney's conduct demonstrates incompetence but that in this case the absence of incompetence aggravates the conduct. The LPCC submits that it is inexplicable that a competent and experienced practitioner would have considered it ethical and in keeping with the reputation and standards of the profession to do what Mr Rayney did.
Counsel for Mr Rayney submits that our findings are as to personal matters without any element of incompetence in the performance of Mr Rayney's professional obligations as a legal practitioner.
It is our view that this matter does not require consideration. There was nothing in Mr Rayney's conduct that demonstrated incompetence. We have referred to the serious nature of the misconduct. It is our view that the fact that it did not involve any element of incompetence does not aggravate the seriousness of the misconduct.
Matter 7 Whether the incident was isolated such that the Tribunal can be satisfied of the practitioner's worthiness or reliability for the future
The LPCC submits that Mr Rayney's conduct was not isolated. It points to our finding in the Reasons at [358] that Mr Rayney's conduct in making the recordings was premeditated and constituted a sustained breaking of the law over a period of months. It submits that Mr Rayney knowingly gave false evidence on two occasions in 2009 and repeated it before the Tribunal in 2015, in the Supreme Court in 2017 and in the hearing of this application in 2017.
Counsel for Mr Rayney submits that the three instances of professional misconduct arise from the same circumstances. He submits that there has been no suggestion of repetition of the contravention of the Surveillance Devices Act in the 11 years since it occurred and that the knowingly giving false evidence should be seen in context as an extension or repetition of one single act.
It is our view that Mr Rayney's conduct was not isolated and that we cannot be satisfied as to Mr Rayney's worthiness or reliability for the future. The premeditated, sustained conduct in making the recordings was not isolated. The giving of false evidence was not an extension of that professional misconduct, but separate misconduct which consisted of knowingly giving false evidence with an intention to mislead the Magistrates Court. Mr Rayney's conduct in knowingly repeating the false evidence on three occasions since 2009 demonstrates that Mr Rayney's conduct was not isolated.
Matter 8 The practitioner's disciplinary history
The LPCC acknowledges that Mr Rayney does not have any relevant disciplinary history, but submits that is of limited significance. It submits that the fundamental consideration is that the practitioner has been found to have knowingly engaged in unlawful conduct in making the recordings and to have knowingly given false evidence. It submits that Mr Rayney acted deliberately and dishonestly.
Counsel for Mr Rayney submits that a practitioner's disciplinary history is clearly relevant to a penalty consideration as it informs the Tribunal's assessment of whether the practitioner is currently a fit and proper person to practice law as a practitioner's disciplinary history is illustrative of whether the conduct the subject of the findings was an isolated occurrence.
It is our view that the fact that Mr Rayney does not have any disciplinary history other than the matters with which this application is concerned is of limited relevance in this case. That is due to the facts that the contravention of s 5(1) of the Surveillance Devices Act occurred over a period, the giving of false evidence in the affidavit of 2 February 2009 was followed by the giving of false oral evidence on 19 November 2009 and that Mr Rayney has repeated his false evidence on three occasions since then, most recently in December 2017 in this application. Those factors indicate to us that despite the absence of any disciplinary history it cannot be said that Mr Rayney's conduct was an isolated occurrence.
Matter 9 Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight
The LPCC submits that Mr Rayney has not demonstrated any remorse or insight. It submits that the denial of the charges and the need for the LPCC to prosecute to a conclusion deny Mr Rayney the mitigating benefit of immediate remorse and contrition. It also submits that Mr Rayney's conduct of the defence of the application demonstrated a lack of candour and veracity and shows that there is no insight, remorse or contrition. It also submits that the contents of Mr Rayney's affidavit of 19 March 2018, which we have summarised earlier, and the fact that Mr Rayney has appealed against the findings we have made demonstrate a continued denial of wrongdoing and rejection of our findings.
Counsel for Mr Rayney submits that Mr Rayney has dealt with the issues candidly and honestly in his affidavit of 19 March 2018 in relation to the issues of penalty and costs. He submits that despite the fact that Mr Rayney's evidence on the key issues was disbelieved in previous proceedings by Acting Justice Brian Martin in the murder trial and by Justice Chaney in the defamation action Mr Rayney has not sought to alter or tailor his evidence and he has maintained his position throughout. Counsel submits that Mr Rayney genuinely believes that his evidence was true and correct but that he accepts that he may have been mistaken as to his recollection of his dealings with Mrs Rayney.
In our view, the fact that Mr Rayney has exercised his right of appeal is irrelevant in determining the appropriate penalty. It demonstrates nothing other than that Mr Rayney is exercising a right he has. We do not regard the exercise of that right as demonstrating an unwillingness to accept our findings.
Nor does the fact that Mr Rayney required a hearing of the referral, on its own, indicate an absence of insight or remorse. It is possible for a practitioner not to accept that their conduct constitutes professional misconduct and so require a hearing of an application by the LPCC but nevertheless to have some insight into the fact that their conduct was inappropriate and to be remorseful for it.
However it is our view that in this case Mr Rayney has no insight into his wrongdoing or remorse for it.
We have found that Mr Rayney deliberately and unlawfully recorded his conversations with Mrs Rayney without her consent and that he has knowingly given false evidence in an affidavit and orally. We have summarised Mr Rayney's affidavit of 19 March 2018 earlier in these reasons. Mr Rayney maintains the position that he maintained at the hearing before us in December 2017. The affidavit contains no acknowledgement of wrongdoing nor any insight or remorse.
Matter 10 The desirability of making available to the public any special skills possessed by the practitioner
Mr Rayney accepts that he does not possess any special skills that are relevant to penalty. The LPCC and Mr Rayney agree that this matter has no relevance.
Matter 11 The practitioner's personal circumstances at the time of the conduct and at the time of the sanction
The LPCC submits that Mr Rayney's personal circumstances are of limited weight. It also submits that the satisfaction that Mr Rayney derives from the practice of law, the importance of practising law and Mr Rayney's financial situation are irrelevant.
Counsel for Mr Rayney submits that Mr Rayney's conduct needs to be examined in the context of the position in which Mr Rayney found himself in 2009 and thereafter and that his conduct does not define him.
It is our view that Mr Rayney's personal circumstances, both at the time of the professional misconduct and at the time of the imposition of the penalty, are relevant factors to be taken into account in deciding on the penalty. These include the satisfaction that Mr Rayney derives from the practice of law, the importance to him of practising law and Mr Rayney's current financial situation. However, 'the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice' [37].
[37] Legal Profession Complaints Committee and Bower [16(11)] and Legal Profession Complaints Committee and Park [26(11)]
As we have said it is necessary to distinguish between the misconduct in 2007 and the misconduct in 2009. In 2007 there were significant disputes between Mr Rayney and Mrs Rayney. Their marriage broke down in July 2007. While these matters were no doubt distressing for Mr Rayney it is our view that they do not in any way justify or excuse Mr Rayney's conduct in unlawfully recording his conversations with Mrs Rayney without her consent.
We accept that in 2009 Mr Rayney was under great stress and had suffered great trauma. We also accept that Mr Rayney's financial position is poor and has been so for many years. We accept that it will be very difficult for Mr Rayney to earn income if he is not permitted to practice law. However, despite all of these matters, it is essential that the penalty we impose adequately meets the needs for denunciation of Mr Rayney's professional misconduct, personal deterrence and general deterrence.
Matter 12 Any other matters relevant to the practitioner's fitness to practice and other matters which may be regarded as aggravating the conduct or mitigating its seriousness
Counsel for Mr Rayney points to Mr Rayney's practice of law at a high level for many years, which we summarised at [65] [76] of the Reasons. He also points to Mr Rayney's contributions to the legal profession by teaching advocacy.
Counsel for Mr Rayney has submitted that Mr Rayney has conducted himself with composure and dignity over the past 11 years and that he has always been respectful of the legal system and complied with all bail conditions imposed upon him.
Counsel for Mr Rayney also refers to the restrictions on Mr Rayney's ability to practice law from March 2011 until February 2016.
Counsel for Mr Rayney has also referred to the many character references for Mr Rayney that have been provided to us, particularly the references from the members of his family who have known him closely for many years, as well as the references from the legal practitioners.
The LPCC submits that the only period that Mr Rayney was suspended from practice was the period of approximately 6 ½ months from 21 July 2015 until 10 February 2016 and that the other periods were periods in which Mr Rayney gave undertakings not to practice in jury trials or not to practice at all. The LPCC also submits that the period of suspension was unrelated to the conduct which we have found to be professional misconduct and that the periods for which Mr Rayney gave undertakings were periods of an appropriate regulatory arrangement which were voluntarily assumed by Mr Rayney.
It is our view that the period of almost five years in which Mr Rayney either was restricted in his ability to practice or unable to practice is relevant when we consider the appropriate penalties to impose. The fact that Mr Rayney voluntarily agreed to restrict his practice or agreed not to practice does not detract from the fact that Mr Rayney has been unable to practice fully. In our view that is something that we should bear in mind.
However, as we have said in relation to matter 11, we cannot allow personal matters to 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.
In Legal Profession Complaints Committee and Bower at [72] [73] the Tribunal quoted from and adopted a passage in Lawyers' Professional Responsibility (6th ed, 2017) by Professor G E Dal Pont. We also adopt that passage and we consider that it has relevance to this case. We have taken the references that have been provided into account. However Mr Rayney's professional misconduct has been sustained and includes dishonestly giving evidence. We must make our own findings as to his integrity and his honesty.
Penalty for the professional misconduct by contravention of the Surveillance Devices Act 1998 (WA)
We have found that between about April 2007 and a date unknown in 2007 on or after 6 June 2007 Mr Rayney unlawfully recorded on a dictaphone seven private conversations that he had with Mrs Rayney without Mrs Rayney's consent, in contravention of s 5(1) of the Surveillance Devices Act 1998[38], that Mr Rayney knew that he was acting unlawfully in making those recordings[39], that Mr Rayney's conduct in making those recordings knowing that he was acting unlawfully consisted of premeditated and sustained breaking of the law demonstrating Mr Rayney's disregard for the law and was professional misconduct[40].
[38] Reasons [329]-[332]
[39] Reasons [333]-[337]
[40] Reasons [355]-[359]
The professional misconduct occurred at a time that the relationship between Mr and Mrs Rayney was strained and when Mr Rayney was suffering the grief of the illness and death of his father. The strain in the relationship no doubt placed Mr Rayney under stress. While the stress and grief does not justify Mr Rayney's conduct, it does provide a basis for understanding the circumstances in which the misconduct occurred. The conduct did not occur in connection with the practice of law.
Since engaging in that professional misconduct Mr Rayney has suffered many traumatic and distressing events which we have referred to in the Reasons. From December 2012 until the end of June 2015 Mr Rayney did not practice law, pursuant to an undertaking that he gave to the LPB. On 21 July 2015 the LPB cancelled Mr Rayney's practising certificate and he was unable to practice until that decision was set aside by this Tribunal on 10 February 2016.
We have referred earlier in these reasons to the periods of time Mr Rayney was restricted in his ability to practice or unable to practice. It is our view that these periods ought to be taken into account when considering the appropriate penalty to impose for Mr Rayney's professional misconduct.
Having regard to the professional misconduct that constituted the professional misconduct in recording the conversations between Mr Rayney and Mrs Rayney and the circumstances in which the conduct occurred it is our view that the appropriate penalty for that professional misconduct would have been suspension from practice for one year.
By reason of the periods for which Mr Rayney was restricted in his ability to practice or unable to practice it is our view that the appropriate penalty for that professional misconduct is a reprimand.
Penalty for Mr Rayney's professional misconduct in knowingly giving false evidence
We have found that Mr Rayney knowingly gave false evidence in his affidavit of 2 February 2009[41], that he knowingly gave false evidence in the Magistrates Court[42] and that he gave that affidavit and oral evidence with the intention of misleading the Magistrates Court[43].
[41] Reasons [338]-[351]
[42] Reasons [352]-[353]
[43] Reasons [354]
The false evidence given by Mr Rayney was given in a matter that was personal, not one in which Mr Rayney was involved in his capacity of a legal practitioner. Knowingly giving false evidence constitutes serious professional misconduct, including when that evidence is given in a personal matter.
In Legal Profession Complaints Committee v Palumbo [2005] WASCA 129 Steytler P, with whom Wheeler and McLure JJA agreed, said at [22] [24]:
22Conduct involving dishonesty has generally been regarded very seriously by the courts, even where it occurs outside professional practice. In Coe v New South Wales Bar Association [2000] NSWCA 13 a barrister was struck off the Roll for falsely swearing an affidavit with intent to mislead the Family Court in a matter in which he was a party. The affidavit was knowingly false as regards his financial circumstances. In Barristers' Board v Young [2001] QCA 556, a barrister was struck off the Roll for intentionally giving false evidence to the Criminal Justice Commission's inquiry into electoral fraud. In Re a Practitioner; Ex parte Legal Practitioners Disciplinary Tribunal (2004) 145 A Crim R 557, a solicitor was struck off the Roll after committing four counts of perjury. He had made false statements in affidavits in court proceedings in order to conceal his dereliction of duty in allowing a judgment to be entered against his client in default of defence. He had also committed a minor offence of shoplifting, and had offered no adequate explanation in respect of it.
23Honesty and integrity are essential prerequisites to a right to practise law. In Barristers' Board v Darveniza (2000) 112 A Crim R 438 (a case involving the supply of drugs by the practitioner and his subsequent filing of dishonest affidavits denying his use of illegal drugs), Thomas JA (with whom McMurdo P and White JA were in agreement) said, at 445 [33]:
"Generally speaking the quality most likely to result in striking off 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 practises."
24To similar effect is the observation of Wright J in Howes v Law Society of Tasmania [1998] TASSC 112. His Honour there referred with approval to what had been said by Crawford J, at first instance, as follows:
"… Honesty and candour are essential attributes for a legal practitioner, and certainly so when dealing with the Court and his or her professional body. The deliberate making of untrue statements on oath in particular reveals a person lacking in qualities essential for a practitioner. …"
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.
Having regard to the need to protect the public by marking the seriousness of knowingly giving false evidence, imposing a penalty that provides personal deterrence and general deterrence we have concluded that the only appropriate penalty is to recommend to the Supreme Court (full bench) that Mr Rayney's name be removed from the roll of practitioners.
As we have decided that Mr Rayney lacks the honesty and candour that are essential attributes for a legal practitioner it is our view that we should suspend Mr Rayney's local practising certificate pending the determination of the Supreme Court.
At the time of the hearings before us in December 2017 and April 2018 Mr Rayney was counsel for one of the accused persons in a District Court trial that has been running for many months. So that publication of the hearing of this application did not distract or prejudice the jury in that trial the Tribunal has made non-publication orders until the trial is completed. The Tribunal will make non-publication orders in respect of these reasons and the orders we make in consequence of them. The orders that we make in consequence of these reasons will allow Mr Rayney to continue as counsel until that trial is completed. The parties made detailed submissions as to the terms of the orders at the hearing on 6 April 2018.
Orders
1.Pursuant to s 439(d) of the Legal Profession Act 2008 (WA) the Tribunal publicly reprimands Lloyd Patrick Rayney for his professional misconduct in recording conversations between himself and his wife on a dictaphone without his wife's knowledge or consent, in contravention of s 5(1) of the Surveillance Devices Act 1998 (WA);
2.Pursuant to s 438(2) and s 438(4) of the Legal Profession Act 2008 (WA) the Tribunal:
(a)makes and transmits a report to the Supreme Court (full bench) on its findings that Lloyd Patrick Rayney has engaged in professional misconduct in:
(i)swearing an affidavit to be read in the Magistrates Court in which Mr Rayney gave evidence on oath which he knew to be false, with the intention of misleading the court; and
(ii)giving evidence on oath before a Magistrate which he knew to be false, with the intention of misleading the court.
(b)makes a recommendation that Lloyd Patrick Rayney's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA) for that professional misconduct; and
(c)orders that the Tribunal's report to the Supreme Court (full bench) is to comprise the Tribunal's reasons in Legal Profession Complaints Committee and Rayney [2018] WASAT 5, the Tribunal's orders made on 25 January 2018 in this application, the Tribunal's reasons in Legal Profession Complaints Committee and Rayney [2018] [No 2] WASAT 5 (S), the transcript of the hearing before the Tribunal on 5, 6, 7 and 13 December 2017 and copies of the exhibits tendered at that hearing, the transcript of the hearing on 6 April 2018 and copies of the affidavit of the exhibits tendered at that hearing and these orders.
3.Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA) the Tribunal orders that Lloyd Patrick Rayney's local practising certificate is suspended with effect from 21 days after the latter of the date of this order or the completion of the criminal trial in State of Western Australia v Michael Le & Ors (District Court of Western Australia IND 293 of 2016) (Criminal Trial), whether by verdict or otherwise, until the determination of the Supreme Court (full bench).
4.Pursuant to s 438(3)(b) of the Legal Profession Act 2008 (WA) the Tribunal orders that a condition is placed on Lloyd Patrick Rayney's local practising certificate, with effect from 14 days after the date of this order, that the entitlement of Lloyd Patrick Rayney to practise is restricted to appearing in or advising on the Criminal Trial (such condition to remain until Lloyd Patrick Rayney's local practising certificate is suspended).
5.There be liberty to apply to extend the time periods provided for in Orders 3 and 4.
6.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) Lloyd Patrick Rayney must pay to the Legal Profession Complaints Committee its costs of the proceeding in the amount of $90,994.74 within 28 days after the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE P MARTINO, SUPPLEMENTARY PRESIDENT
18 APRIL 2018
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