RAYNEY and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA - [2016] WASAT 7

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: RAYNEY and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2016] WASAT 7

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MR M SPILLANE (SENIOR MEMBER)
MR P DE VILLIERS (MEMBER)

HEARD: 20, 21 AND 22 OCTOBER 2015

DELIVERED : 10 FEBRUARY 2016

FILE NO/S: VR 132 of 2015

BETWEEN: LLOYD PATRICK RAYNEY
Applicant
AND
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Fit and proper person - Cancellation of local practising certificate

Legislation:

Commonwealth of Australia Constitution Act (Cth), s 109
Criminal Code Act Compilation Act 1913 (WA), s 132, s 143
Criminal Investigation Act 2006 (WA), s 42
Legal Profession Act 2008 (WA), s 38, s 45(4)(b), s 56(2), s 56(4), s 78(a)(ii), s 403(1)(b), s 465
Surveillance Devices Act 1998 (WA), s 5(1), s 34
Telecommunications (Interception and Access) Act 1979 (Cth), s 5, s 7(1), s 7(1)(a)

Result:

Applicant found to be a fit and proper person to hold a local practising certificate
Legal Practice Board's decision to cancel the applicant's local practising certificate set aside
Legal Practice Board ordered to issue a local practising certificate to the applicant

Summary of Tribunal's decision:

The applicant was charged with and acquitted of the murder of his wife. He was also charged and acquitted of an offence under the Telecommunications (Interception and Access) Act 1979 (Cth). While the resolution of the charges was pending, the applicant was issued a local practising certificate on his undertaking not to practise. When the applicant applied to resume practice, the Board cancelled his local practising certificate. The applicant applied to the Tribunal for a review of the Board's decision to cancel his local practising certificate.
The Tribunal found that the applicant was a fit and proper person to hold a local practising certificate.

Category: B

Representation:

Counsel:

Applicant: Mr ML Bennett
Respondent: Mr M Crueden SC

Solicitors:

Applicant: Bennett + Co
Respondent: Legal Practice Board

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

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253
AW v Rayney [2010] WASCA 161
Braysich v R (2011) 243 CLR 434
Briginshaw v Briginshaw (1938) 60 CLR 336
Dixon v Legal Practice Board of Western Australia [2012] WASC 79
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
In re Davis (1947) 75 CLR 409
Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee v Bachmann [2011] WASC 309
NOM v Director of Public Prosecutions (2012) 38 VR 618
Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151
Re Mulligan; Ex parte Isidoro [1979] WAR 198
Rejfek v McElroy (1965) 112 CLR 517
Smolarek v Roper [2009] WASCA 124
Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474
That's Entertainment (WA) Pty Ltd v Commissioner of Police [2013] WASC 75
The State of Western Australia v Rayney (No 3) [2012] WASC 404
The State of Western Australia v Rayney [2013] WASCA 219
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

Table of Contents

Introduction
Mr Rayney's application to the Tribunal
The legislation:
A fit and proper person
The procedure for cancelling a practising certificate
The Tribunal's review jurisdiction
Time for determination
Who is a fit and proper person?
Character
Meticulous care
Onus and standard
A brief chronology
Mr Rayney's Court hearings
The relevant undertaking
Mr Rayney seeks to resume practice
The relevance of findings of other Courts to the Tribunal hearings
The Board's case
A number of general points
The passage of time
The trauma in Mr Rayney's life
The Police investigation
The death of Mr Rayney's father
Mr Rayney engages Mr Carr
The insinuation
The rationale for Mr Rayney's conduct
Mr Rayney's recordings of conversations between him and Mrs Rayney (The Rayneys' conversations)
A brief summary of the respective cases relating to the Device
Objective sources relating to the Device
Mr Pearson's evidence relating to the Device
The alarm system at the Rayney home
Why a detailed chronology?
The trip to Melbourne
Mrs Rayney repeats the insinuation in writing on 13 July 2007
The meeting with Ms O'Brien on Friday 13 July 2007
Mr Krasenstein contacts Mr Pearson
15 July 2007 Sunday
16 July 2007 Monday
17 July 2007 Tuesday
18 July 2007 Wednesday
19 22 July 2007 Thursday to Sunday
23 July 2007 Monday
24 July 2007 Tuesday
25 July 2007 Wednesday
Mr Pearson's installation of the Device in the roof space
The alarm log
26 July 2007 Thursday
27 July 2007 Friday
28 July 2007 Saturday
29 July 2007 Sunday
30 July 2007 Monday
2 August 2007 Thursday
3 August 2007 Friday
4 August 2007 Saturday
5 August 2007 Sunday
6 August 2007 Monday
The Tribunal's approach to the evidence
The absence of any comparable data relating to the recordings from the Device after 26 July 2007
The absence of phone calls between 23 July 2007 and 25 July 2007
The multiple sources of Mr Pearson's evidence
Mr Pearson's reliability as to dates
Tribunal's conclusion as to Mr Pearson's evidence
Mr Rayney's evidence
The content of the recordings by the Device
Was Mr Rayney trying to conceal his involvement?
Were children present when the Device was installed?
Accessing the recordings on 26 July 2007
Why wasn't the Sony Notetaker reinstalled after 26 July 2007?
Can anything be made of the number of telephone calls on the Rayney home landline?
Records of telephone contact between Mr Rayney and Mr Pearson
Would Mr Rayney have used his dictaphone if he only wanted to record his telephone conversation/s with Mrs Rayney?
Did Mr Pearson install the Device on 23 or 25 July 2007?
Selfserving?
Not passing over telecommunications system - section 7(1) of the Telecommunications (Interception and Access) Act 1979
Surveillance Devices Act 1998 (WA) s 5(1) and s 34
Concealment and destruction of dictaphones
The first dictaphone and Mr Rayney's meeting with Mr Carr
Were all of the recordings from the first dictaphone transferred to the CD?
When did Mr Rayney dispose of the first dictaphone?
Did Mr Rayney dispose of the first dictaphone deliberately
The second dictaphone
Candour
Is Mr Rayney a fit and proper person to hold a local practising certificate?
Orders

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The year 2007 must have been a nightmare for Lloyd Rayney. His father died. His marriage was in difficulties. His wife was murdered and he was named as the only suspect in her murder.
Over subsequent years, Mr Rayney faced a number of criminal trials and multiple court appearances.
On 14 July 2012, Mr Rayney's trial for wilful murder commenced. He was acquitted on 1 November 2012. The State appealed the acquittal. The appeal was dismissed. In April 2015 he was tried for telephone interception. He was acquitted.
When Mr Rayney sought to resume legal practice after these acquittals and the dismissal of the appeal, the Legal Practice Board of Western Australia (the Board) cancelled his local practising certificate (practising certificate) from 21 July 2015.
Mr Rayney now seeks a practising certificate by order of this Tribunal.

Mr Rayney's application to the Tribunal

Mr Rayney made an application to the Tribunal dated 20 July 2015, pursuant to s 78(a)(ii) of the Legal Profession Act 2008 (WA) (LP Act), to review the decision of the Board dated 17 July 2015 to cancel his practising certificate.
The issue for determination by the Tribunal is whether the available information is sufficient to satisfy the Tribunal that Mr Rayney is a fit and proper person to hold a practising certificate under the provisions of the LP Act.

The legislation a fit and proper person

Section 403(1)(b) of the LP Act provides that 'professional misconduct' includes:
conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (Tribunal emphasis)
Section 45(4)(b) of the LP Act provides:
The Board must not grant a local practising certificate unless it is satisfied that the applicant
…
is a fit and proper person to hold the certificate.
Section 38 of the LP Act provides:
(1)This section has effect for the purposes of section 45 or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.
(2)The Board may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section[.]
…
(3)A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Board consider that the circumstances warrant the determination.
…
Section 465 of the LP Act further provides:
The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in this Part …
The effect of s 465 of the LP Act is that the matters relevant to whether a person is 'fit and proper' are not circumscribed by specific matters set out in the LP Act.

The legislation the procedure for cancelling a practising certificate

Section 56(2) of the LP Act provides:
If the Board believes a ground exists to amend, suspend or cancel a local practising certificate (the proposed action), the Board must give the holder a notice that
(a)states the proposed action …
(b)states the grounds for proposing to take the proposed action; and
(c)outlines the facts and circumstances that form the basis for the Board's belief; and
(d)invites the holder to make written representations to the Board within a specified time of not less than 7 days and not more than 28 days, as to why the proposed action should not be taken.
Section 56(4) of the LP Act provides:
If the Board decides to amend, suspend or cancel the practising certificate, the Board must give the holder an information notice about the decision.

The legislation the Tribunal's review jurisdiction

Section 78(a)(ii) of the LP Act provides:
A person may apply to the State Administrative Tribunal for a review of
(a)a decision of the Board
…
(ii)to amend, suspend or cancel a local practising certificate[.]

Time for determination

Whether Mr Rayney is fit and proper is to be decided as at the time of the hearing, not as at the time of the conduct (A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 (A Solicitor) at [21]).

Who is a fit and proper person?

Fitness to practise law requires that the practitioner must command the personal confidence of clients, fellow practitioners and judges see: In re Davis (1947) 75 CLR 409 (In re Davis) at 420; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 at [46]; Dixon v Legal Practice Board of Western Australia [2012]WASC79 (Dixon) at [19].
Unprofessional conduct includes conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, which includes, but is not confined to, conduct which occurs in the course of legal practice (Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [61]).
The assessment of fitness and propriety in legal practitioners involves a range of broad public interest considerations. The relevant interests are the interests of the public, the interests of the Court and the maintenance of the high reputation and standards in the legal profession (Dixon at [27]).
In Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013]NSWCA151 (Prothonotary) the Court stated at [29]:
In Foreman, the Court of Appeal indicated that in determining whether someone is a fit and proper person to be a solicitor the relevant considerations may include: the protection of the public against similar conduct, the character of the solicitor, and the effect which an order will have on the understanding (within the profession and amongst the public), of the standard of behaviour required of solicitors, the effect upon relationships which must exist between solicitors and the circumstances surrounding the impugned conduct.
The allegations against Mr Rayney relate to alleged conduct occurring otherwise than in connection with the practice of law.
In Ziems v Prothonotary of the Supreme Courtof New South Wales (1957) 97 CLR 279 (Ziems) at 250, Fullagar J said:
Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister … But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former.
(See also A Solicitor at [19])
The High Court said at [20][21] in A Solicitor:
The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise. And there may be an additional dimension to be considered. It was explained by Kitto J in Ziems:
'It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.'
Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether or not it amounts to professional misconduct, may have occurred years earlier. At the same time, personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness, and require an order of removal. …
In Prothonotary at [19] the Court stated:
In McBride v Walton [1994] NSWCA 199 (at [61]-[62]) the Court noted the matters to be considered when determining whether a finding of proven misconduct should be followed by a consequential finding that the practitioner was not of good character (in the context of fitness to practise medicine) as being:
(a)whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
(b)the intrinsic seriousness of the misconduct qua fitness to practise medicine;
(c)whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;
(d)the motivation which may have given rise to the proven episode of misconduct;
(e)the underlying qualities of character shown by previous and other misconduct; and
(f)whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
…
At [30] in Prothonotary the Court also stated:
The Prothonotary accepts that a criminal conviction, even for a serious offence, does not automatically render a person unfit to be on the Roll and that it is necessary to assess the nature and quality of the criminal conduct and its relevance to the practice of law (Ziems v Prothonotary of the Supreme Court of NSW [1957] 46; 97 CLR 279).

Character

In deciding whether a person is a fit and proper person, the court may, in accordance with the circumstances, consider those aspects of the character of the practitioner relevant to the office of a legal practitioner.
Mr Rayney tendered a large number of character references (Exhibit S). There can be no doubt that prior to 2007, Mr Rayney was regarded as, and was, of impeccable character and entirely fit and proper to hold a practising certificate.
The Board submits that character involves, among other things, the acceptance of high standards of conduct, acting in accordance with those standards under pressure, and that '[c]haracter is tested not by what one does in good times but in bad' (Law Society of NSW v Foreman (1994) 34 NSWLR 408 (Foreman) at 449 per Mahony JA).
It is important to note that the stresses to which the practitioner was subject in Foreman were essentially to meet the firm's costs targets. The practitioner's position in Foreman is in no way comparable to the position in which Mr Rayney found himself at the relevant times.
The Board also submitted that 'pressure and external stressors are likely to be more relevant where the conduct in question involves neglect or oversight, rather than deliberate criminal conduct - see eg Dal Pont, Lawyers' Professional Responsibility (5^th ed, 2013) at [23.150]' and the cases cited at note 176.
The Tribunal accepts the correctness of Dal Pont's text, however, that is not to say that external pressure is irrelevant even if the practitioner's conduct is deliberate or unlawful.

Meticulous care

In cases where there is an order that a practitioner be struck off, the position is as stated by Fullagar J in Ziems at 297298:
… the possibly disastrous consequences of disbarment to the individual concerned [are such that] a court to which an appeal comes as of right is bound to examine the whole position with meticulous care.
(See also A Solicitor at [16])
This is not a case in which an order is sought that Mr Rayney be struck off. However, the effect of Mr Rayney's practising certificate being cancelled is clearly analogous and has possibly disastrous consequences for Mr Rayney and is equivalent to that of being struck off. Accordingly, the Tribunal is required to examine the whole position with meticulous care.

Onus and standard

In the hearing before this Tribunal, the Board accepted that it bore the onus of proof (Board Opening Submissions (BOS) at [13]).
In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Reifek))

In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
The standard of proof required in a civil case where serious allegations are made was stated in Rejfek where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
The allegations made against Mr Rayney are analogous to those of dishonesty in that they involve a degree of concealment.
In Braysich v The Queen(2011) 243 CLR 434 (Braysich) at 455, the majority cited the observation of Cockburn CJ in R v Rowton (1865) Le & Ca 520 at 530 [169 ER 1497 at 1502], where he stated:
The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried.
Accordingly, an accused may lead evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged: Braysich at [40].
Mr Rayney led extensive character evidence (Exhibit S). That evidence establishes that he has a favourable character.
Such evidence is relevant to Mr Rayney's objective purpose. It is relevant to the question of whether Mr Rayney was unlikely to have the prescribed dishonest purpose.
The Tribunal starts with the presumption that Mr Rayney was unlikely to have a dishonest purpose.

A brief chronology

Before turning to an analysis of the facts in this application, it is useful to give a brief chronology of the more significant events from 2007 to 2015 concerning Mr Rayney to put the factual analysis that follows in overall context.
Prior to Mrs Rayney's death, probably commencing in April 2007, Mr Rayney used a handheld dictaphone to record conversations between them. In July 2007 Mr Rayney caused a recording device (the Device) comprising a Sony Notebook recorder (Sony Notebook) and a CRU2 to be installed at the Rayney home.
Mrs Rayney was last seen alive on 7 August 2007. She died during the late evening of 7 August or the early morning of 8 August. Mrs Rayney's grave was discovered in Kings Park on 15 August 2007.
On 21 August 2007, a search warrant was issued under s 42 of the Criminal Investigation Act 2006 (WA) to search the Rayney home (Exhibit I page 1). The warrant was executed on 22 August 2007.
Mr Rayney used a second handheld dictaphone to record telephone conversations between him and the Police in late August/September 2007.
The recordings from the handheld dictaphones were transferred to the Compact Discs (CDs). The handheld dictaphones were then disposed of by Mr Rayney. On 19 September 2007, a second search warrant was issued to search the Rayney home (Exhibit I page 7) and Mr Rayney's office at Francis Burt Chambers (Exhibit I page 15). These warrants were executed on 20 September 2007.
Mr Rayney subsequently claimed legal professional privilege over all of the records seized from Francis Burt Chambers. Those records included the CDs of the recordings:
a)between Mr and Mrs Rayney using the handheld dictaphone; and
b)between Mr Rayney and members of the Western Australia Police (Police) using the second handheld dictaphone.
Mr Rayney was named by the Police as the only suspect in Mrs Rayney's murder at a media conference on 20 September 2007 (Exhibit I pages 515516) and was arrested for Mrs Rayney's murder on the same day (Exhibit I page 36 at [227])
Mr Rayney was charged with an offence under the Surveillance Devices Act1998 (WA) on 20 September 2007 (Exhibit N at [781], Exhibit [I] page 112).
On 15 September 2008, Mr Rayney was charged with two offences under s 7(1)(a) of the Telecommunications (Interception and Access) Act1979 (Cth) (the Telecommunications Charges) (Exhibit A page 1758) and the charge under the Surveillance Devices Act was withdrawn (Exhibit I page 112).
The trial of the Telecommunication Charges was originally scheduled for 3 March 2009 but was adjourned until the completion of Mr Rayney's trial for wilful murder and any appeal (Exhibit I page 112).
On 8 December 2010, Mr Rayney was again arrested for his wife's murder (Exhibit N at [663]).

Mr Rayney's Court hearings

Mr Rayney's claim for legal professional privilege was determined on 17 December 2009 in the Magistrates Court before Magistrate Flynn. An appeal from Magistrate Flynn's decision was determined by the Court of Appeal on 6 August 2010 (AW v Rayney [2010] WASCA 161 (AW)).
Mr Rayney was tried for wilful murder in the Supreme Court of Western Australia before Brian Martin AJ. The trial commenced on 14 July 2010. Brian Martin AJ delivered his reasons on 1 November 2012 (The State of Western Australia v Rayney (No 3) [2012] WASC 404). Mr Rayney was acquitted.
The State appealed against Mr Rayney's acquittal. The Court of Appeal delivered its reasons dismissing the appeal on 23 September 2013 (The State of Western Australia v Rayney [2013] WASCA 219).
Mr Rayney was tried on the Telecommunications Charges in the District Court before Stavrianou DCJ which commenced on 28 April 2015. At the end of the trial, Mr Rayney's no case submission was successful and he was acquitted.

The relevant undertaking

As a consequence of the charges laid against Mr Rayney, the Board sought a number of undertakings from him.
Relevantly, on 13 December 2012, the Board sought an undertaking from Mr Rayney that he had ceased legal practice and that he would not recommence legal practice without first giving the Board 42 days' notice in writing of his intention to do so (Exhibit A page 1783). Mr Rayney gave the undertaking on 17 December 2012 (Exhibit A page 1786).
Following Mr Rayney's undertaking, the Board issued a practising certificate to Mr Rayney (Exhibit A pages 17931794).

Mr Rayney seeks to resume practice

On 8 May 2015, Mr Rayney's solicitors wrote to the Board asking what steps Mr Rayney would need to take to resume practice (Exhibit A pages 17951796). On 18 May 2015, Mr Rayney's solicitors gave formal notice that he intended to recommence practice after 42 days (Exhibit A page 1799).
On 2 June 2015, the Board gave notice to Mr Rayney, pursuant to s 56(2) of the LP Act, of its intention to cancel his practising certificate (Notice of Intention). The Notice of Intention stated that the Board was considering cancelling Mr Rayney's practising certificate on six grounds (Exhibit A pages 18001804).
The Notice of Intention relevantly stated:
OUTLINE OF THE FACTS AND CIRCUMSTANCES THAT FORM THE BASIS FOR THE BOARD'S BELIEF
4.In considering whether a holder of a local practising certificate is no longer a fit and proper person to hold a local practising certificate, the Board may take into account any matters relating to the holder the Board considers are appropriate (see LPA s 38(2)(f)).
5.The following facts and circumstances, which are set out in the reasons for decision of the Court of Appeal in AW v Rayney [2010] WASCA 161 delivered on 6 August 2010 and of Brian Martin AJ in The State of Western Australia v Rayney (No 3) [2012] WASC 404 delivered on 1 November 2012, form the basis of the Board's belief that you are no longer a fit and proper person to hold a local practising certificate[.]
…
Disposing of Dictaphones
(i)You deliberately disposed of the Dictaphone used to [secretly] record the conversations [you had with Mrs Corryn Rayney using a hand held Dictaphone] … and a Dictaphone used to record conversations with other third parties and thereby destroyed the original recordings ([2010] WASC 161, at [217], [351]).
(j)You did so after the execution of search warrants on 22 August 2007 and 20 September 2007 ([2010] WASCA 161, at [351]).
(k)You knew that the non-electronic and electronic records sought by the police under the search warrants included Dictaphones ([2010] WASCA 161, at [217]).
(l)You made copies of the recordings and disposed of the Dictaphones to ensure that the Dictaphones and the original recordings were placed out of the reach of the authorities ([2010] WASCA 161, at [41]-[44]; [353]).
Arranging for Recordings of Telephone Conversations
(m)In or about July 2007, you arranged for a third person to intercept and record telephone conversations at your home address ([2012] WASC 404, at [180]-[185]).
(n)In doing so you wanted to record and listen to Mrs Rayney's conversations ([2012] WASC 404, at [214]).
(o)You were aware that the third party had taken steps to record both ends of telephone conversations including enabling him to enter the roof space of the house, where he installed a recorder and digital notetaker ([2012] WASC 404, at [185], [191]).
(p)You would have been well aware that the activity of intercepting and recording telephone conversations was an illegal activity ([2012] WASC 404, at [185], [214]).
(q)The third person obtained copies of recordings made from the roof space of the house and provided CD copies of the recordings to you ([2012] WASC 404, at [197]).
Obviously, the Notice of Intention relied heavily on the reasons of the Court of Appeal in AW and of Brian Martin AJ and the findings therein.
On 17 July 2015, following correspondence between Mr Rayney's solicitors and the Board, the Board issued a notice to Mr Rayney under s 56(4) of the LP Act.
Ultimately, in deciding to cancel Mr Rayney's practising certificate, the Board relied on only two of the grounds set out in the Notice of Intention and added a third ground lack of candour in responding to the Board.
The Cancellation Notice essentially relied on Mr Rayney's alleged conduct as set out under the heading 'Disposing of Dictaphones' and 'Arranging for Recordings of Telephone Conversations' as set out in the Notice of Intention.
The Cancellation Notice stated:
REASON FOR THE DECISION
2.The following facts and circumstances form the basis of the Board's belief that you are no longer a fit and proper person to holder a local practising certificate:
Disposing of Dictaphones
(a)You deliberately disposed of the Dictaphone used to record conversations you had with Mrs Corryn Rayney and a Dictaphone used to record conversations with other third parties and thereby destroyed the original recordings.
(b)You did so after the execution of search warrants on 22 August 2007 and 20 September 2007.
(c)You knew that the non-electronic and electronic records sought by the police under the search warrants included Dictaphones.
(d)You made copies of the recordings and disposed of the Dictaphones to ensure that the Dictaphones and the original recordings were placed out of the reach of the authorities.
Arranging for Recordings of Telephone Conversations
(e)In or about July 2007, you arranged for a third person to intercept and record telephone conversations at your home address.
(f)In doing so you wanted to record and listen to Mrs Rayney's conversations.
(g)You were aware that the third party had taken steps to record both ends of telephone conversations including enabling him to enter the roof space of the house, where he installed a recorder and digital notetaker.
(h)You would have been well aware that the activity of intercepting and recording telephone conversations was an illegal activity.
(i)The third person obtained copies of recordings made from the roof space of the house and provided CD copies of the recordings to you.
…
10.At a meeting held on 16 July 2015, the Committee considered the matters set out at paragraphs 1 to 9 above and resolved to cancel your local practising certificate on and from 21 July 2015.
Although the s 56(4) Cancellation Notice did not specifically identify the passages from the judgments that were identified in the s 56(2) Notice of Intention, it is clear that the Board relied on those passages.
The effect of the notice of 17 July 2015 was that the Board cancelled Mr Rayney's practising certificate with effect from 21 July 2015 (the Cancellation Notice) (Exhibit A pages 19361941).
The allegation of 'Secret Recordings and Breach of Surveillances Devices Act 1998' in paragraph (a) of the Notice of Intention was not relied upon by the Board in the Cancellation Notice.
The Board's case was not that it was the recordings of the conversation by Mr Rayney using the Device that of itself makes him not a fit and proper person. Rather that it was the alleged illegal recordings that make him not a fit and proper person.
Therefore, the Board must establish not only that the recordings were made but that they were made illegally.
However distastefully people might regard Mr Rayney's conduct in recording, or attempting to record, his conversations with his wife, the Board's case is not that that conduct is a ground for refusing to issue a practice certificate.

The relevance of findings of other Courts to the Tribunal hearings

In certain circumstances, the evidence and findings of a court in criminal proceedings may be relevant to findings made by this Tribunal.
Where a practitioner has been convicted, the position is as stated in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 (Sudath), where Meagher JA, Whealy JA agreeing, held:
[83]It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial.
…
[101]In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.
[102]The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.
Mr Rayney was acquitted of all charges he faced. As such, Sudath which applies to convictions does not apply, although the reasoning is instructive in relation to findings.
Mr Rayney relies upon observations in Re Mulligan; Ex parte Isidoro[1979] WAR 198 (Re Mulligan) for the proposition that the Board's case in this Tribunal seeks to improperly controvert his acquittal in the District Court.
An acquittal does not prevent subsequent disciplinary proceedings (see Health Care Complaints Commission v Litchfield(1997) 41 NSWLR 630 (Litchfield) at 634-636; Smolarek v Roper [2009] WASCA 124 at [94]; and That's Entertainment (WA) Pty Ltd v Commissioner of Police [2013] WASC 75 (That's Entertainment) at [45], [46], [50], [60][61]).
In relation to the findings made by Brian Martin AJ, it is important to note that Mr Rayney did not give evidence at his trial for wilful murder. Further, Mr Rayney was constrained in the presentation of the defence case in his wilful murder case by the fact that he still faced a trial of the Telecommunications Charges. The constraints he faced are set out in the evidence of Mr David Edwardson QC (Exhibit R and Exhibit I Volume 2 Tab 27 pages 513516). The Board did not seek to challenge the evidence of Mr Edwardson QC. The Tribunal accepts the evidence of Mr Edwardson QC.
The Court of Appeal's decision was from a decision of a magistrate on a claim for legal professional privilege. The Magistrates Court hearing was not a hearing of a charge.
The position is that the Tribunal must make its own findings of fact in reaching a conclusion as to whether Mr Rayney is a fit and proper person to hold a practising certificate. The Tribunal had the benefit of Mr Rayney giving evidence and being crossexamined.

The Board's case

In the Board's opening submissions, it identified three grounds, as set out below, for the cancellation of Mr Rayney's practising certificate as the basis for finding that he is not a fit and proper person to hold a practising certificate:
The first ground installation of the Listening Device
3.In the context of the practitioner experiencing an acrimonious breakdown in his marriage with the late Mrs Rayney from no later than April 2007, the practitioner instructed or requested a third party, Mr Timothy Pearson, to install a listening device in the roof space of their matrimonial home.
4.The practitioner's purpose in doing so was to record Mrs Rayney's private telephone conversations with third parties, without her knowledge or the knowledge of the other participants.
5.The Board contends that the device was installed by Mr Pearson on 23 July 2007, and aside from a period in which it was temporarily removed from 26 July until about 29 July 2007, it remained in the roof space of the matrimonial home until it was removed on or about 5 August 2007.
6.The Tribunal will be invited to infer that a number of Mrs Rayney's private telephone calls were recorded.
7.The practitioner committed offences against s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth), and counselled or procured Mr Pearson to do so.
8.Alternatively, the practitioner committed offences against ss 5(1) and 34 of the Surveillance Devices Act 1988 (WA), and counselled or procured Mr Pearson to do so.
9.The practitioner knew that he was committing an offence or offences, and that he was counselling or procuring Mr Pearson to do so.
The second ground concealment and destruction of dictaphones
10.The second ground is that after 20 September 2007, after the police had executed search warrants at the practitioner's home and chambers which the practitioner knew included two handheld digital dictaphones, and after the practitioner had been named as the prime and only suspect in his wife's murder, the practitioner deliberately disposed of the dictaphones to ensure that the dictaphones and the original recordings contained on them were placed out of the reach of authorities.
11.To deliberately dispose of the dictaphones in these circumstances was an unlawful destruction of evidence contrary to s 132 of the Criminal Code, and an attempt to pervert the course of justice contrary to s 143 thereof.
The third ground lack of candour in responding to the Board
12.Thirdly, in responding to the Board's show cause notice, the practitioner failed to give a candid explanation of matters raised in the notice with respect to the installation of the listening device in the matrimonial home.
(BOS at [3]-[12])

A number of general points

Before turning to a detailed factual analysis, it is useful to make a number of general points in relation to the Tribunal's overall finding.

The passage of time

The majority of the relevant events happened some years ago, as far back as 2007.
That circumstance makes it likely that Mr Rayney's ability to recall events could well be affected as a result of the passage of time rather than a conscious effort to rewrite history.

The trauma in Mr Rayney's life

In addition to the passage of time, Mr Rayney gave evidence before the Tribunal that the events of 2007 and subsequently have caused him significant trauma and affected his recollection (Exhibit N at [11][13]). The Tribunal accepts that Mr Rayney's recollection was significantly affected by these events and it is not surprising that his recollection has been so affected.
Decisions made by Mr Rayney that may have seemed illogical to others in the cold light of day may have seemed logical to Mr Rayney or to anyone else who found themselves in Mr Rayney's traumatic circumstances. As a result, the adverse inferences that might otherwise be drawn if Mr Rayney was not affected by those events are less likely to be drawn.

The Police investigation

Mr Rayney's submissions were very critical of the conduct of the Police in the investigation of his wife's murder. It is unnecessary and unhelpful to make any findings or any comments in relation to the conduct of the Police. Those criticisms have played no part in the Tribunal's findings on the issues before it. The serious allegations against Mr Rayney were sufficient of themselves to have caused Mr Rayney extraordinary stress.

The death of Mr Rayney's father

In late 2006, Mr Rayney's father was permanently hospitalised as a result of brain damage suffered in a fall while being treated for cancer. He remained in hospital for the last four months of his life (Exhibit N at [740]. He died in January 2007 (Exhibit N at [741]; T:236).

Mr Rayney engages Mr Carr

By early 2007, Mr Rayney's and his wife's marriage was in difficulties (Exhibit N at [66]).
Mr Rayney engaged Mr William Carr of Carr & Co, a prominent family lawyer, to advise him in relation to his marriage separation. They first met on 16 April 2007 (Exhibit I page 108 Affidavit of W Carr).

The insinuation

Mr Rayney gave evidence before this Tribunal that at some stage in early 2007, probably around April, Mrs Rayney made an extremely serious oral insinuation against him (Exhibit N at [703]-[710]).
The Board did not contest that such an insinuation was made.
The Tribunal finds that an oral insinuation as described by Mr Rayney was made by Mrs Rayney since she repeated the insinuation in writing in an email to Mr Rayney on 13 July 2007 (Exhibit N at [734]; Exhibit A page 1749; T:242, T:249, T:258 and T:268). Mr Rayney responded to that email on 14 July 2007 (Exhibit A page 1748).
It is unnecessary to provide details of the insinuation. However, Mr Rayney's conduct thereafter needs to be seen in the light of that insinuation and its effect on him. The Tribunal accepts that such an insinuation would be, and was, deeply distressing to him. In relation to the insinuation, the Tribunal notes that there is absolutely no evidence to support any allegation of impropriety on Mr Rayney's part, or in any way supports such an insinuation.

The rationale for Mr Rayney's conduct

Mr Rayney's evidence before this Tribunal was that he sought to record conversations between him and his wife firstly, by the use of a handheld dictaphone and secondly, by the Device.
Mr Rayney's evidence of his reason for the recordings, and attempted recordings, of conversations with Mrs Rayney is that he sought to obtain a recording of Mrs Rayney in which she acknowledged to him that her insinuation was not true or that it did not mean what he believed it to mean (Exhibit N at [733], [877] and [1053]). Mr Rayney's evidence was that he hoped that the discussion of other topics might lead to the insinuation being discussed and withdrawn (Exhibit N at [755]). Mr Rayney's evidence was that he could then use a successful recording to give to his lawyer for advice or use in any future litigation (Exhibit N at [749]).
The Board put to Mr Rayney that he used the Device to record conversations between his wife and third parties, without Mrs Rayney's or the third parties' knowledge. Mr Rayney denied that this was his purpose (T:254; BOS at [4]).
The Board suggested that the motive for Mr Rayney recording conversations between Mrs Rayney and third parties was 'to get inside Mrs Rayney's head … and see what she was saying to her friends and relations about [him]' (T:269). Mr Rayney denied this.
The Tribunal finds it is difficult to see what a recording of Mrs Rayney speaking to third parties could have achieved.
Mr Rayney explained that his purpose was to record a telephone conversation he proposed to have with Mrs Rayney while she was holidaying in Melbourne, in which he would try and get her to qualify in some way the 'insinuation'. The Board submitted this explanation was, with respect to Mr Rayney, 'simply absurd'.
The Board submitted that Mr Rayney acknowledged that his attempts to record a withdrawal of the insinuation with the dictaphone had been 'futile' (T:232233, T:254, T:266, T:268, T:254, T:266, T:269). The Tribunal accepts this submission and finds accordingly.
The Board submitted that Mrs Rayney was going to Melbourne with their two daughters and other family members. Mrs Rayney left for the airport at around 4:30 pm on Wednesday, 25 July 2007 (Exhibit A, Vol 5, Tab 10, page 1746). They would not arrive at their apartment in Melbourne until sometime after midnight, Melbourne time. Mrs Rayney was returning to Perth on 30 July 2007 (Exhibit P; T:261 T:262). The Tribunal accepts this submission and finds accordingly.
The Board submitted that, accordingly, Mrs Rayney would be in Melbourne for four full days from 26 to 29 July 2007 and then whatever time she had in Melbourne on the 30 July 2007 before flying back to Perth. On one of these days, she would be at a Collingwood football game (T:262, T:263). The rest of the time she would be shopping, dining, and generally holidaying in Melbourne with her daughters and family (T:262, T263264). She did not have a mobile phone (T:212) although their two daughters did. The Tribunal accepts this submission and finds accordingly.
The Board submitted that Mr Rayney's explanation comes down to this:
a)although his previous attempts to obtain a recording of the confirmation he wanted from Mrs Rayney had been futile,
b)he said that during the four or five day period that Mrs Rayney was holidaying in Melbourne, watching football, shopping and dining with her daughters and family, he intended to engage her, at the appropriate or opportune moment (T:264, T:268-269) in a telephone conversation on his home telephone (not his mobile or work phone),
c)on the serious subject of their marital problems and the 'insinuation' and attempt to obtain from her, some sort of qualification about what she had said about the 'insinuation' which would be recorded (T:254255, T:262269),
d)he said he would 'get one go and one go only' at this supposed conversation (T:267).
The Board submitted, that for this purpose, Mr Rayney went to the trouble and expense of engaging Mr Pearson to install the listening device in his home.
The Board submitted that:
a)Mr Rayney originally said that this supposed conversation would have to take place when Mrs Rayney was in her apartment in Melbourne, when she had access to the landline (T:263);
b)he would have to sit by his home phone (T:263); and
c)he then said he could speak with her while she was with one of their daughters because she would have been able to use one of their mobile phones (T:263).
The Board submitted that it was inherently improbable that Mrs Rayney would have engaged with Mr Rayney in a serious conversation about their marital issues and the 'insinuation' in these circumstances, while she was holidaying in Melbourne, either at her apartment or out and about with her daughters (and possibly also with other family members present).
Mr Rayney's evidence to the Tribunal was that he thought that Mrs Rayney would be in a more relaxed frame of mind while she was in Melbourne (T:265).
The Tribunal finds that despite the fact that other members of the family travelled to Melbourne with Mrs Rayney, there is no reason why Mrs Rayney could not have had a private conversation with Mr Rayney. As a matter of common experience, Mrs Rayney could, for example, easily have gone into a bedroom and closed the door.
The Board submitted that the whole supposed plan, as suggested by Mr Rayney, was simply ridiculous. The Board submitted that Mr Rayney's explanation was 'utter rubbish' (T:265).
The Tribunal accepts that there is a degree of wishful thinking on Mr Rayney's part in imagining that Mrs Rayney would withdraw the insinuation whilst being recorded. However, having regard to all the circumstances including the impact of his father's death, a failing marriage and the content of the insinuation, the Tribunal does not find Mr Rayney's explanation for his actions to be completely implausible.
The Board has not offered any convincing rationale other than what Mrs Rayney was saying to her friends, for Mr Rayney seeking to record Mrs Rayney's telephone conversations. The Tribunal is satisfied that a not unreasonable rationale for recording the conversations was to attempt to obtain a withdrawal of the extremely serious insinuation and finds this may well have been the case. The Tribunal rejects the Board's submission that it is 'utter rubbish'.

Mr Rayney's recordings of conversations between him and Mrs Rayney (The Rayneys' conversations)

Mr Rayney's evidence before the Tribunal was that the first attempts to record a withdrawal of the insinuation were made using an inexpensive handheld dictaphone that cost about $50 (Exhibit N at [732], [807], [209] and [210]). However, the dictaphone was not successful in recording such a conversation with Mrs Rayney (Exhibit N at [1049][1040]).
Mr Rayney's evidence before the Tribunal was that Mrs Rayney was aware that he was recording their conversations. He said he informed her of this on the first occasion that he made a recording of their conversation (T:209); Exhibit N at [748], [757] and [794]).
Mr Rayney's evidence at [748] was:
Corryn couldn't care less that I tried to record our conversations. She did not use those words but it was almost like saying 'Go ahead, give it your best shot.'
(See also T:237239)
The recordings do not commence with a statement of the date and time. Similarly, the recordings do not commence with a statement that Mrs Rayney had consented to the recordings (Exhibit N at [754]). Mr Rayney's explanation is that to do so would have made it a 'formal event' which he wished to avoid (Exhibit N at [752]).
As noted, the Board did not pursue an allegation of a breach of the Surveillance Devices Act in relation to the use of the dictaphone to record conversations with Mrs Rayney. It is therefore unnecessary to make a finding as to whether this was done with or without Mrs Rayney's consent.
The significance of the first dictaphone recordings, their transfer to CDs, and the subsequent disposal of the first dictaphone and the second dictaphone by Mr Rayney, is that it provides part of the factual basis for the Board's allegation that improper disposal of the dictaphones was illegal.

A brief summary of the respective cases relating to the Device

There is no issue that Mr Timothy Pearson attended at the Rayney home to install the Device. However, the date on which Mr Pearson attended is very much in issue.
The Board alleges that Mr Pearson installed the Device at the Rayney home on 23 July 2007. The Board alleges that except for a period from 26 July until about 29 July when the Sony Notetaker was removed, the Device remained until 5 August 2007. The Board says that recordings were made throughout this period and that these recordings were illegal.
The Board's case in relation to the Device relied heavily on the objective evidence set out below and Mr Pearson's evidence given in previous proceedings (BOS at [46] and [62]). Unfortunately, Mr Pearson did not attend before the Tribunal to give evidence and the Board were unable to subpoena him to attend.
The Board submitted that the falsity of Mr Rayney's explanation was demonstrated by the objectively established or agreed facts, contemporaneous events and documents, the evidence of Mr McKemmish (a forensic computer expert) and the apparent logic of events.
The Board submitted that the weight to be attributed to Mr Pearson's evidence alone may be affected by the fact that he was not crossexamined, but aside from some inconsequential errors about some dates and the precise sequence of events, his evidence was in all material respects consistent with the objective and contemporaneous matters which demonstrate the falsity of Mr Rayney's explanation.
Mr Rayney's case was that the Device was installed on 25 July 2007, the Sony Notetaker was removed on 26 July 2007 and the CRU2 was removed before 30 July 2007 which effectively means, on Mr Rayney's evidence, that the Device was installed and removed while Mrs Rayney was away in Melbourne.

Objective sources relating to the Device

In considering the use of the Device, there are three objective sources as to the dates and times of events:
a)the telephone records;
b)the alarm log; and
c)computer records.
A number of schedules of telephone records were in evidence. However, there is no complete record of the telephone communications to and from the various numbers during the relevant period. For example, there were no telephone records in evidence before the Tribunal of the automated calls to the alarm monitoring company ARM. No adequate explanation was offered as to why the complete records were not provided. The Tribunal would have had more confidence in drawing inferences from the date and timing of the communications if the telephone records were complete. The fact that the records are incomplete makes the drawing of inferences based on the number of calls fraught with difficulty.
In the statement of facts read to the Magistrates Court when Mr Pearson pleaded guilty to charges under the Telecommunications (Interception and Access) Act 1979 (Cth), it was said that, between 23 July 2007 and 4 August 2007, there were 126 calls (Exhibit A pages 895 and 901).
Relevant telephone communications are set out in tables in these reasons.
The Tribunal has used the expression 'telephone communications' rather than 'calls' because it does not follow that because there was a telephone communication between two numbers, there was necessarily a call in the form of a conversation between two persons.
The Rayneys had a monitored alarm system at their home. The alarm system was monitored by ARM, a security company. The alarm system was monitored by ARM via the Rayney home telephone and produced an alarm log. The alarm log was annexed to Exhibit C, a statement by Mr Vincent, a security alarm specialist. Evidence as to the meaning of the various codes in the alarm log was given by Ms Grace Glass, an employee of ARM.
An expert report on the contents of various computers seized by the Police was prepared by Mr McKemmish. These computers included computers at the Rayney home and at Mr Rayney's office (Exhibit A pages 5556). Mr McKemmish has been able to identify certain times at which, or by no later than, recordings were accessed on the Rayney home computer at Monash Avenue (the Monash Tower). Mr McKemmish was unable to determine which files had been played. It does not follow that because a file of a recording has been accessed that the recording in the file was actually played.

Mr Pearson's evidence relating to the Device

Mr Pearson gave statements to the Police on:
1)29 August 2007 (Exhibit A pages 125);
2)3 October 2007 (Exhibit A pages 2650) - this statement is substantially identical to his statement of 29 August 2007; and
3)13 February 2009 (Exhibit A pages 5153).
Mr Pearson swore an affidavit on 12 November 2009 which was filed in the Magistrates Court proceedings. This affidavit incorporated the three statements from the Police set out above (Exhibit A pages 13031318).
Mr Pearson gave evidence under oath in the Magistrates Court, the Supreme Court and the District Court. He also pleaded guilty to an offence under the Telecommunications (Interception and Access) Act (Cth) in the Magistrates Court on 14 February 2008 (Exhibit A pages 894916). Mr Pearson pleaded guilty on the basis of the facts as read out in the Magistrates Court.
Despite the Board's efforts, it was unable to serve a witness summons on Mr Pearson. As stated earlier, Mr Pearson did not attend at the Tribunal hearing to give oral evidence or to be crossexamined which was unfortunate. The weight to be given to Mr Pearson's statements and transcripts of evidence, albeit that some of them were on oath in other courts, was less than had he given evidence before this Tribunal.

The alarm system at the Rayney home

The alarm system container at the Rayney home were installed above the top shelf of a walkinrobe, immediately below a manhole in the ceiling. There were power points next to the alarm container (Exhibit N at [1005]; Exhibit J).
Photographs of the alarm system below the manhole and the wiring in the roof space above the manhole appear in Exhibit J. These photographs were taken by Mr Jonas Thompson, a forensic investigation officer.
The alarm system appears to connect to two metal containers which are either side of a three plug power board. The power board is plugged into a power point. Two of the power points in the power board have transformers plugged into them. In addition, there is an orange telephone socket.
A photograph of the wiring in the ceiling was submitted in evidence but it was not very illuminating.

Why a detailed chronology?

As part of its reasons the Tribunal has given a detailed chronology because
a)this was the manner in which both parties conducted the case,
b)it is important for the drawing of inferences submitted by both parties, and
c)it is important in assessing the reliability of the evidence of Mr Rayney and Mr Pearson.

The trip to Melbourne

Mr Rayney gave evidence before this Tribunal that he had originally planned to go to Melbourne with his family on 25 July 2007. However, Mrs Rayney asked him not to go. Mr Rayney knew from about 13 or 14 July 2007 that he would not be going to Melbourne with his family (T:323). Mr Rayney also knew that Mrs Rayney would be away in Melbourne from 25 July to about 30 July 2007 (T:257).

Mrs Rayney repeats the insinuation in writing on 13 July 2007

Mr Rayney gave evidence before this Tribunal that he had not pursued his 'amateurish' and unsuccessful attempts to use a dictaphone to record a conversation between him and Mrs Rayney about the insinuation. He had 'let it slip'.
On 13 July 2007, Mrs Rayney sent an email to Mr Rayney repeating the insinuation.
Mr Rayney's evidence before this Tribunal is that when Mrs Rayney repeated the insinuation in writing in the email of 13 July 2007, Mr Rayney again became distressed about it (T:266268).
The Tribunal finds that the fact that Mrs Rayney repeated the insinuation in writing on 13 July 2007 is critical in the sense that it again focused Mr Rayney's mind on obtaining a withdrawal of the insinuation.
The Board sought to attach weight to the fact that the insinuation was not made in a lawyer's letter. The Tribunal finds that the fact that the insinuation was not in a lawyer's letter is of no significance. Its sting is no less because it does not appear under letterhead.

The meeting with Ms O'Brien on Friday 13 July 2007

On the evening of Friday 13 July 2007, Mr Rayney met with a fellow practitioner, Ms Claire O'Brien (Exhibit N at [928]; T:215, T:217 and T:258). During a conversation between them, the topic of recording telephone conversations came up. They discussed recording conversations between Mr and Mrs Rayney. Mr Rayney's evidence was that he wanted a recording of what he and Mrs Rayney discussed that was accurate. He and Ms O'Brien discussed which conversations, including phone conversations, could be recorded lawfully (Exhibit N at [939][943]; T:251).
The Board submitted that there was an inconsistency between Mr Rayney's discussions with Ms O'Brien about recording conversations between him and Mrs Rayney generally and Mr Rayney's stated purpose of recording a withdrawal of the insinuation. The Board submitted that Mr Rayney had told Ms O'Brien and Ms Black (another practitioner) about the insinuation The Board submitted that Mr Rayney did not have a definite plan at that stage (BCS [73]).
In his evidence before the Tribunal Mr Rayney was adamant that he never told anybody the purpose of why he wanted Mr Pearson to install a call recording unit. Mr Rayney did not 'isolate the insinuation as something [he] wanted a recording [of to Ms O'Brien]' (T:250).
The Tribunal does not accept the Board's submission as to the apparent inconsistency is of any significance. The fact that Mr Rayney and Ms O'Brien may have had a general conversation about recordings does not mean that Mr Rayney did not seek to record a withdrawal of the insinuation by Mrs Rayney.

Mr Krasenstein contacts Mr Pearson

Ms O'Brien's brother, Mr Nick Krasenstein, had a friend, Mr Pearson, who ran a surveillance business (Exhibit N at [944]). Ms O'Brien offered to have her brother contact Mr Pearson.
Mr Krasenstein subsequently contacted Mr Pearson on 14 or 15 July 2007 (Exhibit A page 1734). There were a number of calls between Mr Pearson and Mr Krasenstein over 14/15 July 2007. Precisely when the relevant call was made is not significant.

15 July 2007 Sunday

The telephone records disclose that Mr Pearson first contacted Mr Rayney on Sunday 15 July 2007 at 12:35 pm and that Mr Pearson rang Mr Rayney's mobile from his home phone. The call lasted 2'28".
Mr Pearson's evidence in the District Court was that Mr Rayney told him 'maybe … he'll contact me at a later stage' (Exhibit A page 417).
Mr Rayney's evidence before this Tribunal was that he did not have a specific recollection of the content of each of the conversations between him and Mr Pearson (Exhibit N at [999].

16 July 2007 Monday

Mr Rayney's evidence to this Tribunal was that he had decided to install a device by about Monday 16 July 2007 (T:258) on the basis that:
I believed that over the course of the days when Corryn was away I thought I would have an opportunity to speak with her by telephone. As she would be in a better mood and more likely to speak more openly with me because she would be on holidays with the children, shopping and enjoying herself away from her work and me.
(Exhibit I at [1050]; T:265)
The telephone records disclose that there were two telephone communications between Mr Rayney and Mr Pearson on 16 July 2007.

Date	Time	From	To	Duration
16 July	5:11 pm	Rayney (Mb)	Pearson (Mb)	2'10"
16 July	8:32 pm	Rayney (Mb)	Pearson (Mb)	2'53"

Mr Rayney's evidence before this Tribunal was that Mr Pearson's workshop was at his home (Exhibit N at [969]). During one of the calls on 16 July 2007, Mr Pearson invited Mr Rayney to his home in Dalkeith (Exhibit N at [956]). They met there on 16 July 2007.
Mr Rayney's evidence before this Tribunal is that he became aware when he visited Mr Pearson's home on 16 July 2007, that he was being recorded by surveillance cameras (Exhibit N at [957][967]). He visited again on 17 July 2007.
Mr Rayney asked Mr Pearson if Mr Pearson could install a device to record telephone conversations on the Rayney home phone. Mr Rayney stressed to him that the recordings had to be done legally and lawfully (Exhibit N at [980][982]).
Mr Pearson's evidence in the District Court was that Mr Rayney emphasised to him that everything Mr Pearson did to install a device had to be done lawfully and legally (Exhibit A page 571).
Mr Rayney's evidence before this Tribunal is that Mr Pearson told him he had worked for the Police doing information technology work (Exhibit N at [978]). Mr Pearson was doing work for the Police during the period of his interaction with Mr Rayney. Mr Rayney's evidence is that as a result of this, he was confident Mr Pearson would act lawfully in making any recordings of telephone conversations (Exhibit N at [955]).
Mr Rayney's evidence before this Tribunal is that he left the selection of a device and its installation entirely to Mr Pearson (Exhibit N at [990][992]; T:498499). Mr Pearson's evidence in the District Court was that Mr Rayney played no part in the choosing, ordering, assembly, installing, locating or testing of the equipment (Exhibit A pages 564567).
Mr Rayney's evidence before this Tribunal is that Mr Pearson initially told Mr Rayney that he could record telephone conversations using a scanner. Mr Pearson's evidence and his police statement of 29 August 2007 confirms this (Exhibit A, page 6 at [43]). Mr Rayney's evidence before this Tribunal is that he did not understand what a scanner was in a technical sense.

17 July 2007 Tuesday

On Tuesday 17 July 2007, there were four telephone communications between Mr Pearson and Mr Rayney.

Date	Time	From	To	Duration
17 July	1:01 pm	Pearson (Hm)	Rayney (Mb)	0'53"
17 July	3:55 pm	Pearson (Hm)	Rayney (Mb)	0'52"
17 July	5:39 pm	Rayney (Mb)	Pearson (Mb)	0'19"
17 July	7:12 pm	Pearson (Hm)	Rayney (Mb)	0'48"

Mr Rayney and Mr Pearson met at Mr Pearson's home for a second time on 17 July 2007. Mr Pearson's evidence in his police statement of 29 August 2007 was that after Mr Rayney's first visit, Mr Pearson tested a scanner on his own phone but it was not very effective as it only recorded one side of the conversation (Exhibit A, page 8 at [61]).
Mr Pearson's evidence in the District Court was that he purchased a Uniden scanner and a Sony Notetaker on 17 July 2007. He identified Exhibit 3 in the District Court trial as an invoice for those purchases (Exhibit A pages 531532).
Mr Pearson's evidence in his police statement of 29 August 2007 was that he suggested an alternative device consisting of two pieces of equipment, a CRU2 and a Sony Notetaker. The Sony Notetaker was the actual recording device. Mr Rayney agreed for Mr Pearson to purchase a CRU2 (Exhibit A at [61][62]).
Mr Pearson ordered the CRU2 from National Communications on 17 July 2007.

18 July 2007 Wednesday

On Wednesday 18 July 2007 Mr Pearson paid for the CRU2 (Exhibit B).

19 22 July 2007 Thursday to Sunday

Between Thursday 19 July and Sunday 22 July 2007, there were four telephone communications between Mr Pearson and Mr Rayney.

Date	Time	From	To	Duration
19 July	10:06 am	Pearson (Hm)	Rayney (Mb)	0'45"
20 July	11:34 am	Pearson (Hm)	Rayney (Mb)	0'52"
21 July	3:41 pm	Pearson (Hm)	Rayney (Mb)	0'47"
22 July	11:33 am	Rayney (Mb)	Pearson (Mb)	1'35"

The CRU2 was delivered to Mr Pearson's house. There is some uncertainty about the precise date when the CRU2 was delivered but it was probably 19 or 20 July 2007. Although Mr Williams', the supplier's, evidence (Exhibit C) was that Mr Pearson received the device on 18 July 2007, it is more likely that it was received slightly later, on Thursday 19 July or Friday 20 July 2007, bearing in mind that it was only paid for on 18 July 2007 and sent by overnight express.
Mr Pearson's evidence in the District Court was that he then tested the CRU2 and Sony Notetaker on his own home phone for a few days (Exhibit A page 540).
Mr Pearson's evidence in his police statement of 29 August 2007 was that:
I didn't hear back from Lloyd, so on Sunday I rang him again. I spoke too [sic] Lloyd for a minute or so. I told him it worked and made arrangements for me to attend his house at 6 Monash Avenue in Como the following day at 1.00pm.
(Exhibit A page 9 [74])

23 July 2007 Monday

There were two telephone communications between Mr Rayney and Mr Pearson on 23 July 2007.

Date	Time	From	To	Duration
23 July	10:34 am	Rayney (Mb)	Pearson (Mb)	0'19"
23 July	11:42 am	Rayney (Mb)	Pearson (Mb)	1'27"

Mr Pearson's evidence in his police statement of 29 August 2007 is that:
The following day Lloyd called me at about 12.00am to confirm I was coming around. I'm pretty sure this was a Monday.
(Exhibit A pages 910 [75])

24 July 2007 Tuesday

Mr Rayney's evidence before this Tribunal was that on Tuesday 24 July 2007 Mrs Rayney sent emails to Mr Rayney confirming that she would be leaving for the airport at 4:30 pm on 25 July 2007 and returning on Monday 30 July 2007 (T:256 and T:261; Exhibit P; Exhibit A page 174).

25 July 2007 Wednesday

On Wednesday 25 July 2007 at approximately 4:30 pm, Mrs Rayney and her daughters left the Rayney home for the Perth airport to fly to Melbourne.
Mr Rayney's evidence before this Tribunal was that Mr Pearson attended at his home on Wednesday 25 July 2007 after 4:30 pm to install the Device (T:180; Exhibit N at [1003]).

Mr Pearson's installation of the Device in the roof space

Mr Pearson installed the Device in the roof space above the alarm system containers. Mr Pearson's evidence in his police statement of 29 August 2007 was:
83.Lloyd then took me inside the house and I asked to see the man hole.
84.Whilst doing this I observed the alarm system connected to the phone line in the walk in robe of the front bedroom. This is just near the man hole.
85.I decided this would be a good place to put the recording device.
86.I told Lloyd that I needed to place the recording device in the manhole. This was because there was a phone point in the walkinrobe as well and I needed access to a phone point.
87.Lloyd went and got a ladder and set it up in the walk-in-robe.
88.I climbed up the ladder and put my body halfway into the roof space. I saw a power point in the roof about a metre and a half away from the manhole.
89.I had my own tools with, me and I connected one end of a black telephone cord, which I had brought along myself, to the telephone outlet inside the walk-in-robe.
90.Then the other end of the telephone cord I connected to the telecommunications recording unit.
91.I fed the new telephone cord up through the existing hole that the original telephone cord went through into the ceiling.
92.I connected the recording device to the power point inside the ceiling.
(Exhibit A pages 1011; see also Mr Pearson's evidence in the District Court, Exhibit A pages 541548)
Mr Pearson's evidence in both trials was the he went into the roof space to determine where the network termination boundary was and that he installed the Device on the house side of the Network termination boundary rather than on the Telstra side (Exhibit A page 565). This is of significance when the Tribunal turns to consider whether the Board has established that Mr Rayney's conduct was illegal.
The Board relied heavily in its submission on that the fact that the Device was installed in the roof space as evidence of Mr Rayney's intention to conceal the Device and in effect, to have it operative for an extended period of time.
Mr Rayney's evidence before this Tribunal was that when Mr Pearson came to the house 'to set up the recording', Mr Pearson suggested it be in the walk through wardrobe next to the bedroom, below the manhole entrance to the roof space:
When Tim came to my home to set up the recording, he decided where to place it, not me. I did not see the device.
He suggested it be in a walk through wardrobe next to the main bedroom, below the manhole entrance to the roof space.
(Exhibit N at [990][991])
Mr Rayney's evidence was that he went off and did something else while the Device was being installed (see also Mr Pearson's evidence in the Magistrates Court, Exhibit A page 1176).
The Board further submitted that Mr Rayney admitted in his evidence before this Tribunal that he either got Mr Pearson a ladder, or showed him where the ladder was. The Board invited the Tribunal to infer that Mr Rayney must therefore have known that Mr Pearson had installed the Device in the roof space. Mr Rayney said that Mr Pearson would have needed a ladder to access the area where the alarm was, even without gaining access to the manhole (Exhibit N at [1004][1006]).
The Board submitted that Mr Pearson's conduct in installing the listening device in the roof space was itself direct evidence of the nature of Mr Rayney's instructions to him.
The Tribunal does not accept that such an inference can be drawn. The evidence of Mr Rayney and Mr Pearson is that the installation of the Device was left entirely to Mr Pearson.
The Board submits that the CRU2 could have been connected to any phone socket in the house (Exhibit A, Volume 5, Tab 10, pages 1714, 1716; Exhibit B (second last page)).
Mr Pearson's evidence is that he chose a position near the alarm system because of the significance of the position of a phone socket near the alarm system (Exhibit A page 1176). Connecting the Device to a telephone socket in the alarm system hardly seems calculated to conceal the Device.
The Board's submissions as to the place of the installation are premised on the proposition that the CRU2 could have been connected to any phone socket in the house. This is based on the contents of the CRU2 manual (Board Closing Submissions (BCS) at [100]; Exhibit A pages 1714 and 1716). The fact that the CRU2 could have been connected to any phone socket in the house is only significant if Mr Rayney was aware of this. However, the manual was never put to Mr Rayney. The Tribunal finds that there is no basis to draw any conclusion that Mr Rayney was aware of the mechanics of the installation or the specific requirements of the CRU2.
The Tribunal finds that there is no evidence that Mr Rayney gave any instruction to Mr Pearson on how or where to install the Device. In fact, all of the evidence shows that it was left entirely to Mr Pearson's discretion.
No inference can be drawn from the fact the Mr Rayney did not issue a negative instruction.
The Tribunal finds that:
a)the Device was installed in the roof space;
b)Mr Pearson was the expert;
c)Mr Pearson was not acting on Mr Rayney's instructions as to the location of the Device;
d)Mr Rayney did not instruct Mr Pearson that the Device did not need to be installed in the roof space;
e)Mr Pearson's conduct in installing the device in the roof space does not provide a basis for an inference that Mr Rayney instructed or requested Mr Pearson that the installation be covert or clandestine; and
f)no inference against Mr Rayney can be drawn from the fact that Mr Rayney did not tell Mr Pearson not to install the Device in the roof space.
(T:291292).

The alarm log

The alarm log showed 'LPT Low Power Trouble' on 25 July 2007 at 20:18:48 (Exhibit C). LPT indicates that the mains power had been cut to the alarm system (Exhibit K at [21]).
As a result of ARM receiving an LPT alert, Mr Kyle Maning, an employee of ARM, rang the Rayney home and spoke to Mr Rayney (Exhibit K at [22]).
The telephone records disclose that later that evening, Mr Rayney rang Mr Pearson on three occasions:

Date	Time	From	To	Duration
25 July	9:56 pm	Rayney (Mb)	Pearson (Mb)	3'06"
25 July	10:12 pm	Rayney (Mb)	Pearson (Mb)	2'22"
25 July	10:15 pm	Rayney (Mb)	Pearson (Mb)	0'40"

Mr Rayney gave evidence before the Tribunal that the alarm started sounding on the evening of 25 July 2007 and that he rang Mr Pearson (Exhibit N at [1068]). Mr Rayney's evidence is that the alarm malfunction continued until Mr Pearson attended the following morning (Exhibit N at [1072]).
The Board submitted that the fact that, when the alarm went off on the evening of 25 July 2007, Mr Rayney called Mr Pearson for assistance, rather than ARM, is evidence of concealment by Mr Rayney. Before the Tribunal, Mr Rayney explained his conduct on the basis that there was a logical connection between the alarm going off and Mr Pearson's installation of the listening device (T:287290).
The Tribunal finds that Mr Rayney was aware that Mr Pearson was working in the area of the alarm boxes. It was logical that he would contact Mr Pearson.
The Tribunal does not draw any adverse inference against Mr Rayney from the fact that he contacted Mr Pearson on the evening of 25 July 2007, rather than ARM.

26 July 2007 Thursday

On 26 July 2007 at 7.07.56, the alarm log showed 'LBP Low Battery Power' (Exhibit C).
As a result of the LBP alert, Mr Merton Glass, an employee of ARM, rang the Rayney home and spoke to Mr Rayney (T:164; T:178; T:179; T:183; Exhibit C).
The evidence of Ms Glass was that the code LBP is an indication that the backup battery to the alarm system is starting to fail (Exhibit K at [27]). A backup battery lasts for 24 hours or more when it is new. When the battery is old it will not last as long (Exhibit C at [30]). The Tribunal finds that there is no evidence as to when the alarm system or the backup battery were installed.
The Board submits that Ms Glass's opinion is expressed in terms of a minimum, not a maximum battery life of 24 hours.
The Tribunal finds that over time batteries run down, even if Ms Glass's opinion was expressed as a minimum battery life, that can only have been the case when the battery was new. Over time, the battery life may well be less than 24 hours.
The telephone records disclose that following the call from ARM, Mr Rayney used his mobile to call Mr Pearson on his mobile at 7:15 am. The call lasted 1'27".
On 26 July 2007 at 7:24 am, a 'Tamper Alarm' was logged. This usually indicates that the alarm panel has been opened (Glass Exhibit K at [33][34]).
Mr Rayney's evidence before the Tribunal is that following his call to Mr Pearson, Mr Pearson came to the Rayney home and attended to the alarm (T:100, T:107, T:293; Exhibit N at [1022] and [1024]).
Mr Pearson's evidence in his police statement of 29 August 2007 is that he attended at the Rayney home to fix the alarm a couple of days after installing the Device (Exhibit A at [100] page 12).
In the District Court, Mr Pearson gave evidence that he attended the Rayney home the day after he installed the Device because of a problem with the alarm system arising from the power adaptor becoming detached from its socket (see below, Exhibit A pages 549550).
Mr Pearson's evidence in the District Court was that when he attended the Rayney home following Mr Rayney's call about the alarm, he found that the alarm was flashing but not sounding (Exhibit A page 568).
At 8 am, a second LBT and a second alarm were logged (Glass Exhibit K at [36]).
Mr Rayney's evidence before the Tribunal was that when Mr Pearson attended on 26 July 2007, he told him that a power point had been nudged out of the power socket (T:292; Exhibit A page 549). Mr Pearson told Mr Rayney he had simply put the power plug back into the socket properly. Mr Pearson's evidence in his police statement of 29 August 2007 at [105][106] was:
I went into the walk-in-robe and checked the alarm system. I saw that the power adaptor had been nudged and was moved slightly, so even though it still looked plugged in, there was no power getting to the system, and that's why it was going off all the time.
I plugged the power adaptor back into the power point properly and this stopped the alarm going off.
(Exhibit A page 1314)
At 8:25 am, a 'Restore' on the 'Low Battery Trouble' was logged. This indicates that the problem with the backup battery had been rectified. It could have been that the battery had been replaced or recharged from the mains power (Glass Exhibit K at [38][39]). The Tribunal finds that it is probable that the battery had been recharged from the mains power following the plug being plugged in properly by Mr Pearson.

The Board alleged that to deliberately dispose of the first and second dictaphones in those circumstances was an unlawful destruction of evidence contrary to s 132 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and an attempt to pervert the course of justice contrary to s 143 thereof.
Section 132 of the Criminal Code provides:
Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a crime, and is liable to imprisonment for 7 years. (Tribunal emphasis)
Section 143 of the Criminal Code provides:
Any person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.
An allegation of a breach of s 132 and s 143 of the Criminal Code against a practitioner is an extremely serious allegation.
The Board's allegations arose from Mr Rayney using a hand held dictaphone to record conversations between himself and Mrs Rayney using the first dictaphone and between himself and the Police using the second dictaphone. The contents of each of the dictaphones were transferred to separate CDs by Mr Rayney.
The two CDs of the Rayney conversations and the Police conversations were kept at Mr Rayney's office and were seized by Police when they searched his office on 20 September 2007 (Exhibit N at [909][910]).
Thereafter, Mr Rayney made a claim of legal privilege over the CDs.
Mr Rayney's claims for legal professional privilege were heard in the Magistrates Court on 19 November 2009.
The onus of establishing legal privilege before Magistrate Flynn rested on Mr Rayney (AW at [23]). Magistrate Flynn found Mr Rayney had not discharged the onus on him to establish that legal professional privilege applied to the recordings on the CDs.
The Court of Appeal upheld Magistrate Flynn's finding that the dominant purpose of those recordings was not to obtain legal advice and therefore that the recordings were not legally privileged.
The Board submitted that its case in respect of the disposal of the dictaphones was straightforward, and ultimately turned upon Mr Rayney's own evidence at the hearing (T:311319) and the findings of the Court of Appeal (Exhibit F).

The first dictaphone and Mr Rayney's meeting with Mr Carr

Mr Rayney's evidence before this Tribunal was that, before 6 August 2007, he had decided not to record further conversations with his wife (T:207).
Mr Rayney met with Mr Carr on 6 August 2007.
Mr Rayney's evidence before this Tribunal is that, at the meeting with Mr Carr, he played either one or two recordings of his conversations with Mrs Rayney using the first dictaphone (Exhibit N at [798]; see also Exhibit A page 1077). He believed that he transferred the recordings from the first dictaphone to the CD on 6 or 7 August 2007 (Exhibit N at [804]; T:206).
Mr Carr's evidence before Magistrate Flynn was that he made a file note of the contents of the recording Mr Rayney played to him (Exhibit A page 1040).
The contents of the file note appear at Schedule 6 to the Court of Appeal's decision in AW.
The file note dated 6 August 2007 made by Mr Carr
Lloyd Rayney attended the office on 6 August 2007 in response to his request for an urgent appointment. He came armed with some tapes of recordings with his wife in which she made certain threats about doing physical harm to him. I suggested to him that she was simply venting her anger and there was nothing much in them.
He also said that he would be available to attend counselling and would let me have his available dates depending upon his commitments with the CCC.
In the trial before Brian Martin AJ, Mr Carr gave evidence of the recording that was played to him by Mr Rayney (Exhibit I page 430). In answer to questions from Brian Martin AJ, Mr Carr described Mr Rayney as having a very calm demeanour and behaving in a very appropriate manner at the meeting (Exhibit I page 441).
The Tribunal finds that it is reasonable to infer that Mr Rayney would have been aware that Mr Carr was taking notes of what Mr Rayney played to him. There is no suggestion that Mr Rayney endeavoured to conceal the CD of the first dictaphone recording and he would have been aware that there was a file note of the recording played to Mr Carr.
In those circumstances it is difficult to infer that Mr Rayney sought to dispose of the first dictaphone to conceal evidence when Mr Carr had heard at least one recording and was aware of the existence of the first dictaphone.

Were all of the recordings from the first dictaphone transferred to the CD?

There were nine recordings from the first dictaphone on the CD before Magistrate Flynn.
Mr Rayney's evidence before this Tribunal was that all recordings from the first dictaphone were transferred by him to a CD (Exhibit N at [738]). Mr Rayney's evidence before this Tribunal was that seven were recorded face to face and two were of a telephone conversation (T:209).
Mr Rayney's evidence before the Tribunal was that it was likely that to record the two telephone calls he held the dictaphone up to the phone as he was talking (T:214).
Mr Rayney's evidence before the Tribunal was that the nine recordings commenced in April 2007. Mr Rayney accepted the evidence he gave in the Magistrates Court that the recordings commenced in MayJuly 2007 was incorrect (T:207), Exhibit A page 1069).
Magistrate Flynn found that Mr Carr's file note dated 6 August 2007 described the content of a recording which did not correspond with the contents of any of the Category 1 files on the CD (i.e. the Rayney conversations) and that the CD did not contain a record of all the telephone conversations between Mr Rayney and his wife which he had recorded on the first dictaphone (AW at [76]), in particular, the recording that had been played to Mr Carr on 6 August 2007 (AW at [78]). The contents of Mr Carr's file note were not the subject of submissions before the Tribunal.
Before the Tribunal Mr Rayney denied that there were additional recordings between him and Mrs Rayney which were not transferred to the CD despite the Magistrate's finding to the contrary (T:214).
The Tribunal finds that Mr Rayney may have been mistaken in his evidence before the Tribunal and that the recording from the first dictaphone played to Mr Carr was not transferred to a CD.

When did Mr Rayney dispose of the first dictaphone?

Mr Rayney's evidence before the Tribunal was that he disposed of the first dictaphone on 6 or 7 August 2007, after he met with Mr Carr (T:312).
Mr Rayney's evidence before Magistrate Flynn was that he disposed of the first dictaphone because having transferred the contents to a CD he only wanted one copy of the recording and he had no use for it anymore (Exhibit A page 1071).
Mr Rayney accepted that the evidence he gave before the Tribunal is at odds with the evidence he gave in the Magistrates Court, in that his evidence before Magistrate Flynn was that he disposed of both dictaphones after 20 September 2007 (Exhibit A page 1078).
Mr Rayney signed two affidavits in the proceedings before Magistrate Flynn (2 February 2009 and 11 November 2009). Neither referred to the disposal of the dictaphones (Exhibit N at [766]). The disposal of the dictaphones was first raised in crossexamination of Mr Rayney in the Magistrates Court. Before this Tribunal, Mr Rayney gave evidence that the crossexamination in the Magistrates Court was the first time he had turned his mind to the disposal of the dictaphones (Exhibit N at [767]).
The Tribunal accepts Mr Rayney's evidence that he disposed of the first dictaphone on 6 or 7 August 2007 after he had transferred the recordings to a CD.

Did Mr Rayney dispose of the first dictaphone deliberately?

In relation to the first dictaphone, the Board submitted that:
a)the circumstances in which Mr Rayney says he disposed of the first dictaphone are themselves on Mr Rayney's own evidence extremely suspicious;
b)Mr Rayney says that he met with his solicitor Mr Carr on 6 August 2007 and played him a recording from the dictaphone;
c)he then disposed of that dictaphone by throwing it in the bin on either 6 or 7 August 2007, that is, between the day of his meeting with Mr Carr and the day that he learned that Mrs Rayney had gone missing (which was 8 August 2007) (T:205-207, T:228-229, T:311, T:313).
Mr Rayney submitted that:
a)there is nothing suspicious in his explanation;
b)there had been discussions between the respective solicitors Mr Carr for Mr Rayney and Ms Anderson for Mrs Rayney of the appointment of a practitioner, Ms Catherine Doran, to act as a family law mediator (T:319);
c)prior to this, there had been an exchange of correspondence between the respective solicitors as to whether Mrs Rayney had been aggressive or rude towards Mr Rayney in front of the two children (T320);
d)this was plainly reflected in the correspondence (Exhibit A Vol 3, pages 1279 and 1288);
e)his purpose in playing a dictaphone recorded conversation to Mr Carr was to demonstrate to Mr Carr that Mrs Rayney's unequivocal denial that she had ever been rude or aggressive in front of the children was wrong.
The Board submitted that disposing of the first dictaphone on 6 and 7 August 2007 was suspicious in the light of the fact that Mrs Rayney went missing on 8 August 2007.
Had Mr Rayney disposed of the first dictaphone on 6 or 7 August 2007 and had Mrs Rayney not been murdered, there would have been nothing suspicious in Mr Rayney's conduct.
The unspoken premise of the Board's case is that the first dictaphone contained a recording of a conversation between Mr and Mrs Rayney that might have implicated him in his wife's murder. The Board moves from that premise to subscribing a motive for Mr Rayney disposing of the first dictaphone, that is, to delete evidence that may have implicated him in his wife's death. However, that itself proceeds from the premise that Mr Rayney was implicated in his wife's death. To make good that premise, the Board would have had to submit that Mr Rayney was implicated in his wife's death. The Board made no such submission and did not crossexamine Mr Rayney on that basis. Therefore the Tribunal rejects that premise of the Board's case in relation to the first dictaphone. The Tribunal does not find that there was anything suspicious in Mr Rayney's disposal of the first dictaphone.
Before the Tribunal could draw an inference that all of the recordings were deliberately not transferred it was incumbent on the Board to establish that the recordings were deliberately not transferred.
It is not sufficient to move from a finding that because all of the conversations recorded on the first dictaphone were not transferred to the CD that all of the recordings were not transferred intentionally.
The Tribunal notes that Mr Rayney was not crossexamined as to precisely how he transferred the contents of the first dictaphone to a CD. Mr Rayney gave evidence before the Tribunal that he required assistance from someone at Francis Burt Chambers to make the transfer. If there was a conversation or conversations that were not transferred by Mr Rayney, it is as likely to have been omitted by mistake as by design.
In order for the Board to establish that Mr Rayney had disposed of the first dictaphone deliberately so as to conceal the contents of the recordings, the Board would have to establish a basis for a finding that they were incriminating or potentially incriminating.
Mr Rayney's disposal of the first dictaphone is akin to disposing of handwritten notes after they have been typed up.
There is nothing adverse to Mr Rayney in Mr Carr's file note of the recording.
Magistrate Flynn characterised the recorded conversations between the Rayneys as prosaic (dull, common place) (at [377]). That description was not challenged on appeal (AW at [77]). Buss JA described the recordings as mundane (at [325]). No submission was made by either party that the Tribunal should listen to the recordings.
The Tribunal accepts Mr Rayney's explanation for his mistaken evidence before Magistrate Flynn as to the date of the disposal of the first dictaphone.
Given the mundane matters on the CD and Mr Carr's file note, it is difficult to see how the contents could have amounted to some form of incriminating, or potentially incriminating, evidence.
The Tribunal finds that at the time of the disposal of the first dictaphone, Mr Rayney had no reason to believe that anything recorded on the first dictaphone could ever be used in evidence, or that it would be material to a subsequent prosecution for wilful murder, or otherwise.
The Tribunal is not satisfied that there was anything suspicious, incriminating, or potentially incriminating, in the conversations recorded by Mr Rayney on the first dictaphone.
The Tribunal is not satisfied that Mr Rayney disposed of the first dictaphone with the intention of destroying evidence or perverting the course of justice.

The second dictaphone

Mr Rayney's evidence before the Tribunal was that as a result of events surrounding the search of the Rayney home in August 2007, he began to believe that the Police were not being entirely honest with him (Exhibit N at [256]).
Mr Rayney's evidence before the Tribunal was that he purchased a second dictaphone to record some of his telephone conversations with the Police. He did so because he was concerned with the conduct of the Police (Exhibit N at [810] and [858]).
Mr Rayney's evidence was that he recorded a series of telephone calls of his conversations with the Police with a hand held dictaphone held next to his mobile phone. Those recordings probably began in early September 2007 (T:215). Mr Rayney accepted that they were made without consent. He said that he did so because of his belief about the conduct of the Police (Exhibit N at [820][821]) and his belief that they were trying to implicate him in his wife's murder (Exhibit N at [840]).
Mr Rayney's evidence was that he believed that whether a recording of a telephone conversation was lawful depended on:
a)whether the person recording it was a part to it;
b)the manner in which it was done; or
c)whether the person making the recording had a lawful interest.
(T:275279)
Mr Rayney said that he believed that he had a lawful interest in making a recording of his conversations with the Police.
Mr Rayney's evidence before this Tribunal is that the recordings of his phone conversations with the Police on the second dictaphone were transferred to a CD before 20 September 2007 (T:316).
Before this Tribunal, Mr Rayney's evidence was that the CDs seized by the Police in the execution of the search warrants on 20 September 2007 contained the originals of the recordings on the second dictaphone which he had copied to a CD (T:316-317).
Mr Rayney's evidence before this Tribunal was that his solicitors had given him a room from within their office from which he could work. He placed the second dictaphone in the room.
Mr Rayney's evidence before this Tribunal is that he had the second dictaphone on him at the time of the Police search of the Rayney home on 20 September 2007 (T:317).
Mr Rayney's evidence before this Tribunal was that after the execution of the search warrants on 20 September 2007, he placed the second dictaphone in his solicitors' office, and once he had confirmed that the CD was in the safe custody of the Court, subsequently retrieved the second dictaphone several days later, and then disposed of the dictaphone whilst making a claim for privilege over the discs seized by the Police (T:313314, T:316-319; see also Exhibit A page 1083).
The Board submitted that when Mr Rayney disposed of the second dictaphone, he knew it was covered by the search warrants.
Mr Rayney's evidence before this Tribunal was that he did not read the search warrant at the time of the search on 20 September 2007 (Exhibit N at [871]). The Tribunal accepts Mr Rayney's evidence.
When Mr Rayney read the search warrant subsequently, he believed that it did not cover the second dictaphone (Exhibit N [872]). There does not appear to be any evidence as to when he read the search warrants in relation to the date when he disposed of the second dictaphone.
Copies of the warrants were produced to the Tribunal by Mr Rayney.
Mr Rayney submitted that the search warrant listed two Sony 256Mb digital dictaphones of a particular model number (Exhibit I, Tab 2, page 8). Mr Rayney submitted that the description of the dictaphones in the search warrant did not cover the dictaphone which Mr Rayney had in his pocket.
Mr Rayney's evidence before this Tribunal is that he did not dispose of the dictaphones to deprive the Police of the original recordings (Exhibit N at [876]). His evidence was that the conversations transferred to the CDs were no different to what was on the dictaphones (Exhibit N at [876]).
Mr Rayney's explanation before this Tribunal for disposing of the second dictaphone was that 'it had served the purpose for which I had it and I didn't need it anymore [to] record Police conversations … I didn't need it for that purpose anymore, and secondly, I was not about to be recording conversations with Police or do anything to draw their attention to myself after that time' (T:318).
The Board submitted that:
a)Item 6 of the search warrant included 'any other electronic storage media …';
b)Mr Rayney knew that the dictaphone was covered by the search warrants which had been executed;
c)the dictaphone which Mr Rayney had in his pocket was a digital dictaphone with the original recordings on it;
d)the Court of Appeal has already held, relevantly, that when Mr Rayney deliberately threw out the dictaphone, and thereby destroyed the original recordings, he knew that the nonelectronic and electronic records sought by the Police under the search warrants included dictaphones (Exhibit F at [41][44] and [381]);
e)and also that when he deliberately threw out the dictaphone he knew what conversations and other information were contained on it (Exhibit F at [217], [351], and [43]).
The Board submitted that it is significant that, on 20 September 2007 Mr Rayney had been named as the only suspect in Mrs Rayney's murder (T:315) and, accordingly, when he placed the second dictaphone in his solicitor's office, and then subsequently retrieved it and disposed of it, he knew he was a, indeed the only, suspect.
The Board submitted that:
a)the circumstances in which Mr Rayney disposed of the second dictaphone after 20 September 2007 are inexplicable;
b)his explanation at T:316-319 was utterly implausible; and
c)if, as Mr Rayney says, the second dictaphone contained the originals of recordings of his telephone conversations with various police officers which he regarded as vital to his defence, it simply beggars belief that he an extremely experienced criminal lawyer and prosecutor - would have just thrown it away (T:318-319).
Mr Rayney submitted that:
a)there is no suggestion ever made by the Police that Mr Rayney perverted the course of justice or destroyed evidence;
b)necessarily, the Police would well know the contents of the second Dictaphone they had their own recordings of the same conversations; and
c)the suggestion that only Mr Rayney would know the contents of the second dictaphone is factually incorrect.
The Tribunal notes that:
a)it was not put to Mr Rayney before the Tribunal that he had not transferred all the recordings from the second dictaphone to the CD;
b)it was not put to Mr Rayney that he had the skill to edit out particular conversations; and
c)no member of the Police was called to give evidence that there were other conversations despite the fact that the Police were recording their conversations with Mr Rayney (Exhibit N at [539]; see also Exhibit I page 448 and recording between Mr Rayney and Amanda Blackburn made on 20 September 2007).

Mr Rayney would only have a motive to dispose of the second dictaphone if there was something on it that was incriminating or potentially incriminating. For the reasons stated in relation to the first dictaphone we are not satisfied that he had such a motive.
The Tribunal finds that:
a)Mr Rayney transferred all of the content of the second dictaphone to the CD;
b)Mr Rayney retained the CD and did not attempt to conceal it;
c)the Police knew the content of their telephone conversations with Mr Rayney; and
d)there is no evidence that there was any incriminating, or potentially incriminating evidence on the second dictaphone.
For a legal practitioner to knowingly destroy evidence is a very serious matter which may well lead to the practitioner being regarded as not fit and proper to hold a practising certificate.
The Tribunal notes the findings of the Court of Appeal in respect of the second dictaphone, however, as stated in Sudath at [83]:
… In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject matter of the inquiry. …
Disposing of the second dictaphone invited suspicion particularly given the Police suspected Mr Rayney of involvement in his wife's murder. However, acting suspiciously is not of itself sufficient to provide a basis for a conclusion that Mr Rayney had breached s 132 or s 143 of the Criminal Code.
The Tribunal accepts Mr Rayney's evidence that he did not read the warrant on 20 September. In order for the Board to lay a basis for Mr Rayney disposing of the second dictaphone before he read the warrant it needed to establish that he disposed of the dictaphone with knowledge of the terms of the warrant. The Board failed to do so.
Had the Board been able to persuade the Tribunal that Mr Rayney knew the terms of the warrant before he disposed of the second dictaphone, the Board would also need to establish his state of mind as to whether the terms of the warrant covered the second dictaphone. The Board failed to do that also. Therefore the exact terms of the warrant are irrelevant.
Had it been necessary to make a finding as to whether the terms of the warrant covered the second dictaphone, the Tribunal finds that it is arguable that the terms did not for the reasons submitted by Mr Rayney.
Although Mr Rayney made a claim for legal privilege over the seized documents it was not necessary for the purposes of that claim that he was aware of the terms of the warrant.
Based on the evidence before it the Tribunal is not satisfied that Mr Rayney disposed of the second dictaphone with the intention of destroying evidence or perverting the course of justice.

Candour

The Board invited Mr Rayney to make written submissions to the Board as to why his practising certificate should not be cancelled.
There followed extensive submissions made on Mr Rayney's behalf and an exchange of correspondence with the Board. The Board had proposed to deal with the cancellation on 25 June 2015, but due to the large volume of materials provided, it deferred its consideration to 16 July 2015 (Exhibit A page 1877).
The Board's letter of 26 June 2015 stated:
…
Secondly, in relation to the submissions provided to date, it is noted that for some matters there is an absence of explanation for the conduct the subject of the Board's Notice. In light of the seriousness of the allegations and findings, it is open to Mr Rayney to proffer an explanation and provide some evidence supporting any exculpatory explanation of his conduct. The Board wishes to draw to Mr Rayney's attention that the duty of candour which a practitioner owes the Board means that it is open to the Board in resolving a matter to take into account the failure of a practitioner to provide an explanation for conduct which otherwise may lead to an inference that he is not a fit and proper person to hold a practising certificate.
For example, at paragraphs 69 to 70 of the Written Representations in Response to Notice Pursuant to Section 56(2) there is reference to a strategic decision by Mr Rayney's Senior Counsel not to contest certain evidence. However, Mr Rayney has not offered any explanation for his conduct which would give the Board an evidentiary basis for reaching a conclusion as to whether the purpose of procuring the installation of a telephone conversation interception and recording device was a lawful purpose. In the absence of such an explanation the Board will be left to draw an inference from the circumstances known to it as to whether a legal practitioner could be reasonably regarded as acting properly in procuring the installation of a telephone conversation interception and recording device.
The Board would welcome any further evidence or materials which would assist it in its deliberations.
…
(Exhibit A pages 18771878)
Mr Rayney's solicitors replied on 29 June 2015 and stated:
…
2I am concerned that you point out an absence of explanation for conduct the subject of the Board's notice in the Written Representations. Both Mr Rayney and I, together with senior counsel, considered we had addressed all matters;
You helpfully provide an example by reference to paragraph 69 and 70 of the written representations in response.
So that I can be sure to address all matters of concern to the Board, would you kindly let me know the other matters that the Board considers have not been directly addressed.
…
(Exhibit A page 1879)
The Board replied on 1 July 2015:
…
In respect of point 2 in your letter, you make reference to the example at paragraphs 69 to 70 of the written representations dated 24 June 2015 and you request that the Board let you know the other matters that the Board considers have not been directly addressed in the written representations.
The matters upon which Mr Rayney may wish to provide an explanation and evidence to explain his conduct are identified in the notice pursuant to section 56(2) of the Legal Profession Act 2008 dated 2 June 2015 (Notice).
I reiterate the point made in my letter dated 26 June 2015 that Mr Rayney has a duty of candour in respect of all matters which were the subject of the findings in the relevant reasons and those matters raised in the Board's Notice,
…
(Exhibit A page 1882)
Mr Rayney's solicitors replied on 6 July 2015:
…
The matters stated in the preface to Mr Rayney's primary written submissions are repeated. If by reason of the complexity of the issues and their interrelationship, Mr Rayney has not addressed expressly any matter of concern to the Board, fairness in my respectful submission requires that it be specifically identified and Mr Rayney will address it. Each of the matters raised by the Board in its notice has been addressed by Mr Rayney. If specific issues arise in the context of those answers that need further clarification or explanation, please identify the same.
(Exhibit A pages 18851886)
The Board did not respond to this request from Mr Rayney's solicitors.
If the Board intended on pressing the lack of candour, the Board's minimum obligation was to respond to this request. The whole point of the Notice of Intention is to resolve issues.
The Board submitted that its SIFC filed in these proceedings set out in some detail the allegations concerning Mr Rayney's lack of candour in his responses to the Board (Board's SIFC at paragraphs 67-75).
The Board was able to articulate the alleged lack of candour in its SIFC. It should have responded to Mr Rayney in at least those terms before issuing the Notice of Cancellation in order to permit him to respond to the specifics of the Notice of Intention.
The Board submitted that:
a)Mr Rayney's initial submission to the Board (Exhibit A, Vol 5, Tab 41) was glib and lacking in any form of explanation;
b)at paragraph 65 thereof, he said that he deeply appreciated and regretted 'carelessly disposing of the dictaphones';
c)but on his own evidence, his disposal of the dictaphone after the execution of the search warrants was deliberate, to put them beyond the reach of the authorities, not simply 'careless'.
The Tribunal does not accept that there was anything 'glib' in Mr Rayney's response.
Significantly there was no cross-examination of Mr Rayney as to any aspect of alleged lack of candour.
The Tribunal does not accept that Mr Rayney's evidence to this Tribunal has been deliberately false or that he lacked candour in his dealings with the Board.

Is Mr Rayney a fit and proper person to hold a local practising certificate?

As outlined at the beginning of these reasons, the onus is on the Board to establish that Mr Rayney is not a fit and proper person to hold a practising certificate and the Tribunal must feel an 'actual persuasion' of the occurrence or existence of the relevant facts.
Furthermore, as stated by Dixon J, as he then was, in Briginshaw, '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
The Tribunal is mindful of the fact that the events cited by the Board (apart from the lack of candour issue in respect of which the Tribunal is not satisfied) were associated with the personal rather than the professional conduct of Mr Rayney nearly nine years ago, in specific isolated circumstances at a time which could only be described as deeply traumatic and stressful.
In addition, there is no doubt that prior to 2007 Mr Rayney was regarded as of impeccable character and entirely fit and proper to hold a practising certificate. The range of character references submitted in this matter suggest that many of his professional colleagues and associates continue to hold him in such high regard, and apart from the lack of candour issue, no criticism of his character was made since the events in 2007 despite, it must be said, the high level of public scrutiny Mr Rayney has been subjected to since that time.
The Tribunal has carefully considered the evidence before it to the Briginshaw standards and makes the following findings.
The Tribunal finds that although Mr Rayney engaged Mr Pearson to install the Device, he did not instruct Mr Pearson where to place the Device and, in particular, he did not instruct Mr Pearson to install the Device in the roof space of the Rayney home.
The Tribunal finds that Mr Rayney's purpose in having Mr Pearson install the Device in the Rayney home was to attempt to record the withdrawal of the insinuation rather than to record Mrs Rayney's private telephone conversations with third parties, without her knowledge or the knowledge of the other participants.
The Tribunal finds that the Device was installed on 25 July 2007 and the Sony Notetaker was removed on 26 July 2007. The Tribunal is not satisfied on the evidence before it that the Board's contentions that the Device was installed by Mr Pearson on 23 July 2007, was reinstalled in the roof space and that the CRU2 remained until it was removed on or about 5 August 2007, can be substantiated.
The Tribunal is not satisfied to the required standards and cannot find on the evidence before it that Mrs Rayney's private telephone calls were recorded.
The Tribunal cannot find on the evidence before it that Mr Rayney committed offences against s 7(1) of the Telecommunications (Interception and Access) Act1979, and counselled or procured Mr Pearson to do so.
Neither can the Tribunal find on the evidence before it that Mr Rayney committed offences against s 5(1) and s 34 of the Surveillance Devices Act 1988 (WA), and counselled or procured Mr Pearson to do so.
The Tribunal is not satisfied on the evidence before it and does not find that Mr Rayney deliberately disposed of the dictaphones in circumstances that were an unlawful destruction of evidence contrary to s 132 of the Criminal Code and/or attempted to pervert the course of justice contrary to s 143 thereof.
The Tribunal is not satisfied that Mr Rayney showed a lack of candour in responding to the Board's show cause notice or that Mr Rayney failed to give a candid explanation of matters raised in the notice with respect to the installation of the listening device in the Rayney home.
In all the circumstances the Tribunal finds that Mr Rayney is a fit and proper person to hold a local practising certificate.

Orders

The Tribunal orders that:
1.The Legal Practice Board of Western Australia's decision of 17 July 2015 to cancel the applicant's local practising certificate for the reason that they believed he was no longer a fit and proper person to hold a local practising certificate is set aside.
2.The Legal Practice Board of Western Australia is to issue the applicant with a local practising certificate based on the Tribunal's finding that the applicant is a fit and proper person to hold a local practising certificate.

I certify that this and the preceding [498] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT