Rayney v The State of Western Australia
[2011] WASC 3
•5 JANUARY 2011
RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 3
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 3 | |
| 05/01/2011 | |||
| Case No: | MCS:62/2010 | 23 DECEMBER 2010 | |
| Coram: | ANDERSON AUJ | 23/12/10 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Bail granted with conditions | ||
| B | |||
| PDF Version |
| Parties: | LLOYD PATRICK RAYNEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Wilful murder Exceptional circumstances Low flight risk |
Legislation: | Bail Act 1982 (WA), pt C sch 1 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Wilful murder - Exceptional circumstances - Low flight risk
Legislation:
Bail Act 1982 (WA), pt C sch 1
Result:
Bail granted with conditions
Category: B
Representation:
Counsel:
Applicant : Mr J D Edwardson QC & Mr G C R Yin
Respondent : Mr J C Agius QC & Mr D W L Renton
Solicitors:
Applicant : D G Price & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
1 ANDERSON AUJ: The applicant applies for a grant of bail pursuant to the Bail Act 1982 (WA) (the Act).
2 On 7 August 2007 the applicant's wife, Corryn Rayney, was killed. Later in August her body was found buried off Lovekin Drive in King's Park and police commenced a murder investigation. On 20 September 2007 Detective Lee held a press conference during which he advised the media that the applicant was the 'prime' and the 'only' suspect in Mrs Rayney's murder. More than 3 years later, on 8 December 2010, the applicant was arrested and charged with her murder.
3 This bail application was first made on 17 December 2010 when it was adjourned until 23 December 2010, at the applicant's request. After argument concluded on that day I ordered that the applicant be granted bail until his trial or further order, subject to compliance with conditions that he agree to forfeit the sum of $250,000 if he does not appear at his trial, provide cash security of $100,000, provide a further surety of $100,000, reside at Como, report daily to the officer in charge of the Cannington police station, surrender his passport, not apply for a new passport and not approach any point of departure.
4 These are my reasons for that decision.
5 The provisions of cl 3C of pt C of sch 1 of the Act, which deal with bail in murder cases, require that I must refuse to grant bail for the charged offence unless I am satisfied that 'there are exceptional reasons why the applicant should not be kept in custody;'.
6 If I am so satisfied, I must still refuse to grant bail unless I am satisfied that 'bail may properly be granted having regard to the provisions of clauses 1 and 3'. These are the clauses which set out the discretionary considerations which are to be addressed on the exercise of the jurisdiction to grant or refuse bail in the particular case.
7 I am satisfied that there are exceptional reasons why the applicant should not be kept in custody until his trial.
Exceptional Reasons
The nature of the case - delay
8 The prosecution case is wholly circumstantial and involves an unusually large body of evidence. When the applicant appeared in the Stirling Gardens Magistrates Court on 15 December 2010, counsel for the prosecution informed the court that statements had been taken from approximately 650 potential witnesses, that the prosecution brief comprised 37 lever arch files, that there were more than 3,400 'action items', that with two clerks working on the task it might take the prosecution 15 weeks to comply with the disclosure obligation, and that the trial may last 6 months. Allowing for some overstatement, it is, by any measure, a large and complex case.
9 Two things arise from this. In the first place it is most unlikely that the trial can be brought on in a few months. Many threads of circumstantial evidence are relied on by the prosecution, the admissibility of some of which may have to be tested in voir direhearings and there is a significant body of forensic evidence, which the applicant may wish to counter in whole or in part with his own expert evidence. Experience suggests that it is likely to be very many months before this trial can commence. Allowing then for 5 to 6 months of trial, the applicant, who is presumed to be innocent, will have spent an exceedingly long time in custody by the time the trial concludes. For this he will have no redress if he is acquitted. Secondly because of the nature, size and complexity of the prosecution case, the applicant will need to work more extensively than usual with his lawyers in order to properly and effectively instruct them in the preparation of his defence. I consider that, if he is kept in custody pending his trial, the degree of difficulty likely to be encountered by the applicant and his lawyers in dealing with the mountain of evidence that is said to have been collected in this case, and in generally getting ready for this particular trial, will be beyond mere inconvenience and could seriously hamper the full and timely preparation of the defence.
10 These matters are, in my opinion, an exceptional reason why the applicant should not be kept in custody.
Welfare of the children
11 There are two children of the marriage. The applicant and the children, girls aged now 16 and 13, continued to live in the family home at Como. Since the death of Mrs Rayney, the applicant has been their sole carer and provider and they are (or were until the applicant’s arrest) entirely dependent on him for all parenting in the home, transportation to school and to school events and for general support, maintenance and encouragement in the various aspects of their teenage lives, including their education. I have read an affidavit sworn by the eldest girl, from which I believe the applicant has a close and supportive relationship with his daughters and is attentive to their careful upbringing and that they in turn are heavily dependent on him and his presence in the home.
12 The eldest girl, who is, I believe, progressing well at her private school, and who is probably headed for university here or overseas, is about to enter Year 12. It will be her final school year when it is especially important that she do well if her aspirations to go on to a higher education are to be realized. The younger girl is about to enter Year 9.
13 After the applicant's arrest and until his release on bail, the girls were cared for by the applicant's sister and her husband at their home. This couple has a young child under the age of 2 and the applicant's sister is in advanced pregnancy, due to give birth in March. Both presently work full time. There is only one bedroom available to be shared by the girls. I believe that the applicant's sister and her husband would find it difficult to care for the applicant's daughters for any length of time, and that it is not in the best interests of the girls that they should have to try to continue to do so.
14 The only other member of the applicant's family who might be able to care for the girls is the applicant's mother. She lives next door at Como, but she is elderly. I am told that she is in her seventies (71 or 72) and does not drive. I know little about her capacity to step into a parenting role with respect to two teenage girls. I am not prepared to presume, in view of her advanced years, that she could do so effectively for any significant period.
15 For more than three years the children have had to live with the unsolved murder of their mother and the fact that their father, with whom they were living, was publicly known to be the prime and only suspect and the only person under investigation. It has been a widely publicized, if not sensational, ongoing investigation and I consider that the strain and insecurity which this must surely have caused these two young people over such a long time makes it appropriate to have a special regard for how their welfare may best be served until the applicant's trial. Remembering always that the applicant is presumed to be innocent, I consider that the welfare of the children will be best served if the family unit is kept together by allowing the applicant to continue his parenting role in the home until his trial. Clearly this is what the girls want. Together with the likelihood of a long delay before the applicant is able to be tried, this is an exceptional reason why the applicant should not be kept in custody.
Other Matters
16 The applicant raises various other matters as exceptional reasons why he should not be kept in custody, but I do not accept that they qualify as such, either individually or together. They are as follows:
The search warrant proceedings
17 In August and September 2007 West Australian police executed search warrants at the applicant's home and barristers' chambers and, in March 2009, they executed a search warrant at the offices of the applicant's solicitor. Numerous items were seized, including electronic and non-electronic records and computers. The applicant has claimed legal professional privilege over most of this material. These claims have been and are being dealt with in the Magistrates Court at Perth. The applicant submits that he will not be able to advance his claims of privilege if he is placed in custody.
18 I accept that the privilege proceedings have been complex and time consuming and have required the applicant's close and detailed attention. However they have been on foot since late 2007, and there is evidence that they would have been finalized long ago but for the applicant's frequent failure to meet programming orders. There is evidence that not much remains to be done to complete the applications. So far as I can determine, most of the claims have been resolved. As to the claims which remain outstanding, the applicant is to prepare and file affidavit evidence in support of his claim of privilege to certain specified material, whereupon there will be a final hearing.
19 Because the applicant appears to have had every opportunity to present his claims of legal professional privilege for final determination long before now, I do not accept that the fact that there are still some claims outstanding constitutes an exceptional reason why the applicant should be granted bail. Anyway, I am not persuaded that he could not do the work which remains to be done if he was in custody.
The listening device charges
20 On 24 September 2007 the applicant was charged with two offences against the Telecommunications (Interception) Western Australia Act 1996 (WA). He is defending these charges and is on bail in respect of them. He claims that this is an exceptional reason why he should not be kept in custody, his argument being that he will not be able to prepare a proper defence to these charges from prison. This may be so, but I think it is most unlikely that these charges will be separately pressed by the prosecuting authorities while the applicant is facing trial on a murder charge. This may turn out to be wrong, but, as things presently stand I would not accept this as an exceptional reason why bail should be granted in this case.
The defamation proceedings
21 The applicant has commenced defamation proceedings against the State on account of Detective Lee's statement to the media conference in September 2007 that the applicant was the prime and only suspect in his wife's murder. He claims that he will not be able to press on with the more intricate procedural aspects of this suit if he is kept in custody. I am not persuaded that this is necessarily so, but anyway I cannot see how the defamation case can be advanced on either side until the criminal proceedings are concluded. I do not accept this as an exceptional reason why bail should be granted in this case.
Personal safety
22 The applicant worked as a Crown Prosecutor for a number of years until 2005 and succeeded in gaining the conviction of a number of violent criminals some of whom are still serving sentences. He claims to have heard that he is to be bashed or worse as soon as an opportunity arises and I accept that he does have a genuine fear for his safety. However, on the material before me, I am not able to say how well founded these fears may be and would not at this stage accept this as an exceptional reason to grant bail.
Need to work and earn
23 The applicant is not legally aided. The cost of the defence is likely to be very substantial. The applicant is a practicing barrister and, until his arrest, he was in active practice. If he were to remain in custody, the applicant would not have the opportunity to earn barristers' fees to help pay for his defence.
24 I do not accept that this is an exceptional reason why he should be granted bail. In my opinion it is not reasonable that a barrister facing trial on a charge that he murdered his wife could expect to receive briefs in any significant quantity if released on bail pending his trial. The applicant appears to have an ownership interest in several investment properties and has for some time enjoyed a high earning capacity which should have resulted in substantial savings and the accumulation of assets. There is also evidence of very substantial superannuation payouts consequent on Mrs Rayney's death. I am not persuaded that he needs to continue to work as a barrister in order to fund his defence, even if he could attract work.
Discretionary considerations
25 I have had regard to all of the questions set out in cl 1 and cl 3 of pt C of sch 1 of the Act.
26 The applicant has no criminal history or history of violence, and has had a long and successful professional career as a public servant and lately as a barrister at the criminal bar. There is no basis for a belief that he may commit an offence if he is released to bail, or that he may endanger the safety, welfare, or property of any person.
27 It was submitted by the prosecutor that there is evidence that the applicant is a person who would interfere with witnesses if he were to be free on bail.
28 This submission was properly made having regard to the adverse findings that have been made against the applicant in his dealing with a witness in the Telecommunications Act prosecution. He was found to have asked an important witness to make a false statement and perhaps also to give false evidence at his trial in those proceedings. I do not underestimate the seriousness of the findings, but in the end his disgraceful conduct in that case does not persuade me that the applicant has a general disposition to interfere with witnesses or that he may interfere with any particular witness or witnesses in his forthcoming trial, in the sense that he may attempt to persuade a witness not to give evidence, or to give false evidence. In the three years or so that he has been living his life as the prime and only suspect in the killing of his wife, there is no evidence that he has attempted to interfere with any potential witness in the forthcoming murder trial - except of course to the extent that the Telecommunications Act charges may become part of the murder trial.
29 The prosecutor contends that if he is not kept in custody the applicant may fail to appear in court in accordance with his bail undertaking. This is the particular matter presented for consideration by cl 1(a) of pt C of sch 1.
30 It is accepted as a general rule in bail cases that the more serious the charge and the stronger the prosecution case the greater is the incentive to abscond. And so it is that by cl 3(a) and cl 3(d) I am required to have regard to 'the nature and seriousness of the offence' and to 'the strength of the evidence against him' in considering whether the applicant may fail to appear.
31 All that need be said about the nature and seriousness of the offence is that there is no more serious charge than the charge which the applicant is facing.
The strength of the prosecution evidence
32 As has been noted, the prosecution case is circumstantial. There is no direct evidence that the applicant was implicated in the killing of his wife.
33 On behalf of the prosecution it is submitted that the circumstantial evidence is compelling.
Prosecution case
34 The case is this. The applicant and his wife were engaged in an unfriendly marriage break-up, in which Mrs Rayney was pressing the applicant for information concerning his income and assets. The applicant was resisting her demands and had grown to hate Mrs Rayney for the persistent efforts she was making, including her threats to subpoena his clients to the Family Court. He pretended to agree to her request for a showdown meeting at the family home on 7 August 2007 after she returned from a bootscooter class. In fact he intended to kill her. She arrived home at about 9.40 pm. At this time the younger daughter was upstairs in bed asleep. The elder daughter was at a concert with a school friend and was not expected to be delivered home by the friend's mother until later. The applicant killed Mrs Rayney by striking her forcefully on the back of her neck and on her head, causing a significant neck injury and a wound to her head which damaged her brain. From this assault she died. He then secreted her body, probably somewhere in the house, and moved her car from where she had parked it on the verge, so that it would be not be seen by the elder daughter when she arrived home. The elder daughter was delivered home at about 10.45 pm and went to bed at about 11.30 pm and was soon asleep. While both children slept, the applicant recovered Mrs Rayney's car from where he had parked it out of sight, dragged her body to the car, placed it on the back seat and drove it to Kings Park. He drove the car off Lovekin Drive on to a track known as the 'Wattle Track'. To access this track he had to drive the car across a collapsible bollard which, when upright, prevented vehicle access to Wattle Track. Using a shovel he dug a hole 4 feet deep at its deepest section, placed her body in it, filled it in and covered it over with debris. He then reversed back on to Lovekin Drive, but in doing so, damaged a transmission sump on the car when driving over the bollard. The car had to be abandoned in a street in Subiaco. The applicant made his way home to Como.
The evidence
35 I have been greatly assisted in understanding the considerable body of prosecution evidence by reading a document prepared by the prosecution and made available to me (and to defence counsel) by counsel for the DPP, Mr John Agius QC and Mr Darren Renton. It was prepared, I understand, for the bail application and sets out a thorough and clear exposition in summary form of the prosecution case for willful murder.
36 I agree that it does present a compelling case. If all of the evidence put forward in this summary were to go before the jury and be accepted by them, it is likely that the applicant would be convicted. However, the cord which, according to the prosecution, securely ties the applicant to his wife's murder is made up of a great many threads, not all as strong as each other.
37 It is not appropriate or indeed practicable to canvass what seem to be the strengths and what may be the weaknesses in the circumstantial evidence. The summary to which I have referred, which is commendably concise, runs to 67 pages. But an example of a piece of evidence which on its face appears to be quite telling but which might turn out to be rejected by the jury, is perhaps the evidence concerning the applicant's purchase of a shovel. It will be part of the prosecution case that, shortly before his wife's disappearance, the applicant, accompanied by his two daughters, purchased a long handled shovel for cash at a Bunnings hardware store, which shovel was never subsequently located. The inference sought to be drawn is that the applicant was equipping himself to dig the Kings Park grave, and disposed of the shovel after the crime. The evidence that he made this purchase comes from the check out attendant who purports to have remembered the occasion and to have recognized the applicant after seeing media coverage of the case. However, her description of the applicant and his daughters in her statement (that is, of the customer who she believed to have been the applicant and of the girls who she believed to have been the applicant's daughters) is not without its difficulties and I am told by counsel for the applicant that the daughters will deny being present at a Bunnings hardware store with the applicant when he purchased a shovel.
38 Taking a broad view of the prosecution's prospects of success, it need hardly be said that the jury will have to be convinced beyond a reasonable doubt that the applicant would and could do what he is alleged to have done that night - that with one daughter asleep upstairs and another daughter due to arrive home he violently killed his wife in the home, hid her body and drove her car out of sight, waited for the other daughter to come home, saw her to bed and, believing both daughters to be asleep, repositioned his wife's car at the front of the house, dragged her body to it, maneuvered her in to the back, drove to King's Park, dug a grave large and deep enough to bury her, got her lifeless body out of the car, placed the body in the grave, filled it in, abandoned the disabled car in Subiaco and made his way home to a house containing two (still sleeping) daughters. Subiaco and Como are on opposite sides of the Swan River, so the journey home involved using the Narrows Bridge or a more distant crossing. If he crossed the river at the Narrows Bridge the distance that had to be travelled was about 8 kilometers.
39 It is possible that the jury might be troubled by the notion that a man of the applicant's slight build could have completed all of the physical actions involved in this criminal venture. The applicant's appearance is distinctive and, having regard to the glare of the spotlight under which he was soon to be placed, the jury might also be troubled by the idea that, after being forced unexpectedly to abandon his wife's car in Subiaco, he could have got home to Como by some unplanned means, without anyone recalling having seen him.
Forensic evidence
40 The forensic evidence which is available to the prosecution is undeniably strong. The matching to the Como address of plant material, brick and soil particles and other fragments found on Mrs Rayney's body, boots and clothing is telling of the fact that she was killed at that address and dragged to the car. But the evidence is expert opinion evidence and is yet to be tested. It is not possible to predict to what extent it will survive challenge.
41 Doing the best I can, whilst I agree that, taken at face value, the prosecution case is compelling, I consider that the applicant has a realistic prospect of acquittal.
Flight risk
42 What then of the risk that the applicant may abscond? Early in the proceedings I expressed the tentative view that, subject to hearing prosecution counsel, the applicant appeared to be a 'minimal' flight risk. Having heard full and, if I may say so, very able argument on both sides of this question I would upgrade the assessment to 'low' flight risk.
43 The applicant has powerful ties to this jurisdiction. He appears confident that he can succeed in gaining an acquittal. I do not believe he would abandon his daughters and his elderly mother while in that frame of mind. He has spent more than three years as the publicly named prime and only suspect in the killing of his wife. It has been on the cards that eventually he might be charged. There is no evidence before me that he has done anything to prepare for a getaway should he be charged and bailed. To the contrary, rather than quietly begin to liquidate assets and place funds overseas, he has continued to make (or attempt to make) property investments in this State. There is some $13,000 in a Bermuda bank account in his name, probably saved during his time working as a prosecutor in that country, but there is no other evidence of overseas assets or connections.
44 Still it is possible that, having worked through the prosecution brief and having gathered together all of the evidence that might be available to counter the prosecution case, his optimism might wane and he just might be tempted to make off. It is for this reason that I imposed the conditions on his bail which are enumerated above.
Order for non-publication of parts of reasons for decision
45 No person or entity is to communicate or publish to any other person or entity any of paragraphs 28, 34, 36, 37, 38, 39, 40 and 41 of my reasons for decision (the 'suppressed paragraphs') until further order of this court, except that the full reasons including the suppressed paragraphs may be given to:
(a) the parties to this application and their respective counsel and solicitors.
(b) The Chief Justice of Western Australia and any judicial officer who may be listed to hear any interlocutory, final or other hearing concerning this application or the pending wilful murder proceedings against the applicant or the trial of those proceedings.
(c) Any counsel or solicitors who are or may be retained or instructed to act for the respondent or applicant in connection with this application or those pending wilful murder proceedings.
(d) The Commissioner of Police and such other officers as he may nominate as the senior officers in charge of the investigation and prosecution of the applicant for wilful murder, but not more than four officers.
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