Rayney v The State of Western Australia [No 2]
[2009] WASC 133
•8 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2009] WASC 133
CORAM: ANDERSON AUJ
HEARD: 7 MAY 2009
DELIVERED : 8 MAY 2009
PUBLISHED : 15 MAY 2009
FILE NO/S: CIV 2177 of 2008
BETWEEN: LLOYD PATRICK RAYNEY
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Application to strike out portions of the statement of claim and reply
Defamation - Imputation of crime - Statements about the plaintiff made by a detective during a media conference - Whether detective's statements could arguably be understood to convey that the plaintiff murdered his wife
Legislation:
Defamation Act 2005 (WA), s 30
Rules of the Supreme Court 1971 (WA), O 20 r 13A(1)
Result:
Paragraph 5 of the amended statement of claim struck out
Paragraph 34.11.2 of the reply struck out
Category: B
Representation:
Counsel:
Plaintiff: Mr M L Bennett & Mr N R Stagg
Defendant: Mr T K Tobin QC & Mr C S Bydder
Solicitors:
Plaintiff: Lavan Legal
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brogan v Brammer [2000] NSWSC 613
Lawrence v Slemko [2009] WASC 33
Makim v John Fairfax & Sons Ltd (Unreported, NSWSC, 15 June 1990)
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Rivkin v John Fairfax Publications Pty Ltd (Unreported, NSWSC, 17 July 1998)
ANDERSON AUJ:
(This judgment was delivered extemporaneously on 8 May 2009 and has been edited from the transcript.)
The plaintiff, Mr Lloyd Rayney, sues the State of Western Australia claiming damages for defamation. The claim arises from statements made by a police officer, Detective Senior Sergeant Lee, on 20 September 2007. The statements were made at a media conference which was initiated by Mr Lee. A transcript of the media conference is annexed to the amended statement of claim and that version of the transcript is reproduced as Schedule "A" to these reasons. The words complained of are identified by bold type.
By par 4.1 of the amended statement of claim, the plaintiff pleads that the words in their natural and ordinary meaning meant, and were understood to mean, that the plaintiff murdered his wife.
An examination of the transcript shows that at no point did Mr Lee expressly state that the plaintiff had murdered his wife and it is not the plaintiff's case that he did so. The case is that this was, however, the imputation conveyed by Mr Lee's words on a fair understanding of all that he said.
Paragraph 4 of the amended statement of claim is in these terms:
In its natural and ordinary meaning, the [o]ral [u]tterance -
meaning the media conference -
complained of meant, and was understood to mean:
4.1that the plaintiff murdered his wife; alternatively
4.2that the plaintiff so conducted himself as to give rise to a reasonable suspicion that he murdered his wife.
Paragraph 4.1 of the amended statement of claim
In this application, the defendant applies to strike out par 4.1. The application is based on the contention that, on a fair reading of all that he said, Mr Lee said no more than that the plaintiff was under investigation as a suspect in the murder of his wife and that, as a matter of law, such a statement does not convey the meaning that the plaintiff was in fact guilty of the murder.
The plaintiff, for his part, accepts that the general principle is that a mere statement that a person is under investigation for, or is suspected of, a crime, or has been arrested and charged with a crime, does not impute guilt. The leading case on the subject is Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, in which Mason J stated at 300:
[A] report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence ... The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until proved that he is guilty.
See also Brogan v Brammer [2000] NSWSC 613.
I agree that if Mr Lee said no more than that the plaintiff was under suspicion and under investigation with respect to the murder of his wife, the imputation pleaded in par 4.1 of the statement of claim must be struck out as untenable.
However, the plaintiff contends that Mr Lee did go further than merely to state that the plaintiff was under suspicion; and did go on to suggest that the police suspicions were well‑founded, carrying an implication of actual guilt. As this is an interlocutory application, it is not appropriate that I should say any more than is necessary to dispose of it. I must decide whether the plaintiff's case with respect to the imputation of guilt has no basis and is really not arguable.
Having read the material complained of, I am not persuaded that Mr Lee's statements are so plainly incapable of conveying the imputation pleaded in par 4.1 that that paragraph should be struck out. Without in any way attempting to exhaustively enumerate or evaluate the particular statements made by Mr Lee during the press conference which might possibly support the plaintiff's contention that, taken as a whole, the material complained of does impute guilt as distinct from mere suspicion, I mention Mr Lee's statements to the following effect:
•that it was likely that Mrs Rayney had been murdered at the couple's home;
•that the plaintiff was the occupant of the house;
•that a lot of forensic evidence had been collected;
•that digging implements had been seized;
•that the plaintiff was not co‑operating with police that day and had refused them entry, such that they had to, and did, force entry;
•that the murder probably took place at night while the couple's children were probably at the house;
•potentially the children were key witnesses;
•it was true that the plaintiff's alibi had always been that he was at home with one of the girls, at least, that night;
•that the plaintiff would not let police interview the girls; that the plaintiff was the only suspect; and
•that police had 'the evidence' and that it was a matter of actually working out where it all fits together.
These particular statements are not to be examined in isolation, of course. The media conference must be considered in its entirety with all its antidotes as well as its banes. Approaching the matter in this way, I have concluded that it is at least arguable, or not unarguable, that the hypothetical reasonable recipient of all that was said by Mr Lee would understand him as saying not merely that the plaintiff was a suspect, but that the suspicious circumstances pointed towards a likelihood of guilt.
It may be a difficult task for the plaintiff to demonstrate at trial that this case is different from cases such as Mirror Newspapers Ltd v Harrison and Brogan v Brammer, but I cannot say that the task is hopeless. I therefore decline to strike out par 4.1 of the statement of claim.
Paragraph 5 of the amended statement of claim
The defendant also seeks to strike out par 5 of the amended statement of claim. It is reproduced as Schedule "B" to these reasons. Paragraph 5 seeks to plead a true innuendo: that the words complained of bore, or were understood to bear, the meanings pleaded in par 4.1 and par 4.2 by way of innuendo in the light of facts and matters extrinsic to the words complained of and which were widely known. It is said that these facts were facts which would lead the people who knew those facts to understand the words complained of in a way different from their natural and ordinary meaning.
This plea gives rise to an obligation to plead the external facts or matters which are relied on to give the words a meaning different from their ordinary and natural meaning. Particulars must be given of the facts or matters relied on as giving the words a different meaning (O 20 r 13A(1) of the Rules of the Supreme Court1971 (WA)).
By par 5, the plaintiff purports to comply with this obligation by setting out what are defined in the pleadings as prior utterances. These are statements to journalists about the progress of the investigation. Thirty‑five separate statements are pleaded, made between 12 August 2007 and 20 September 2007, the date of Mr Lee's media conference. The statements were made by four different officers involved in the case, including some by Mr Lee.
One argument advanced by Mr Tobin QC on behalf of the defendant was that statements made anterior to the publication of the matter complained of could not be extrinsic facts; that previously published statements are not facts or matters for the purposes of pleading a true innuendo. As I understood the argument, it was developed by saying that if an earlier published statement contains a statement of fact, the stated fact could serve as an extrinsic fact, but in such a case it is the fact, not the statement with respect to it, which is required to be particularised and proved, which the plaintiff does not do.
The argument is that a statement as to the existence of a fact may be evidence of the fact, but is not the fact. It is submitted that nowhere in the pleadings is there any attempt to distil the facts from the pleaded statements.
Mr Tobin QC also submitted that there were technical difficulties with the plea. It was submitted, for example, that there was no attempt to identify any one person who was the recipient of all 35 prior statements.
As to whether prior statements are capable of serving as extrinsic facts or matters for the purpose of pleading a true innuendo, I consider that there may be room for argument, on the authority of such decisions as Rivkin v John Fairfax Publications Pty Ltd (Unreported, NSWSC, 17 July 1998) and Lawrence v Slemko [2009] WASC 33.
I would not strike out the plea on that basis. However, it must be remembered that the pleading of a true innuendo starts from the proposition that the matter complained of, the words complained of, do not convey the defamatory imputation in their natural and ordinary meaning; that is to say, that in their natural and ordinary meaning the words complained of are innocent. A defamatory meaning may be given to the words complained of as a result of external facts or matters known to the recipients of the words complained of, which leads them to ascribe a special meaning to the words complained of. They will understand the statement complained of in the light of these other facts. This, to my mind, means that the external facts or matters relied on to found a true innuendo must be capable of giving to the statement complained of a meaning different from its natural and ordinary meaning.
I fail to see how the prior utterances that are set out in par 5 can give to what Mr Lee said during the media conference a meaning different from the natural and ordinary meaning of what he said. Putting that another way, assuming that what Mr Lee said did not convey the meaning pleaded in par 4.1 that the plaintiff had murdered his wife and in that sense was innocent, the matters pleaded in par 5 cannot imbue what he said with the defamatory meaning pleaded in par 4.1. Knowledge of the prior utterances does not give a special or secondary meaning to what he said. On that basis, I would strike out par 5 of the amended statement of claim.
Paragraph 34.11.2 of the reply
By par 26 of the defence, the defendant pleads the defence of qualified privilege, that the statements made by Mr Lee at the media conference on 20 September were spoken on an occasion of qualified privilege. By s 30 of the Defamation Act 2005 (WA), one of the criteria which must be met before qualified privilege may be relied on is that:
[t]he conduct of the defendant in publishing [the defamatory] matter is reasonable in the circumstances.
By par 34.11.2 of the reply, the plaintiff pleads that Mr Lee's conduct was incapable of constituting conduct that was reasonable in the circumstances because certain of the statements made by him were 'false or misleading', which I take to mean no more than untrue. The defendant's application to strike out par 34.11.2 of the reply is based on the proposition that the objective truth or falsity of, or contained in, the defamatory material is not relevant to the defence of qualified privilege, whether statutory or common law.
In my opinion, this proposition is well settled. In Makim v John Fairfax & Sons Ltd (Unreported, NSWSC, 15 June 1990), Hunt J noted the following:
As a matter of principle, the objective truth or falsity of what was said is irrelevant to the defence of qualified privilege. That defence (whether statutory or common law) proceeds upon the basis that the defendant was honestly mistaken in what he said; the authorities are collected in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 41 ‑ 42. What the defendant must establish in relation to the statutory defence is that he took all reasonable steps to ensure that he got his facts right - to ensure that the published statements were true: Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 (PC) at 361, 363, 364. The defendant does not have to establish that they were objectively true in fact, and proof of such objective truth does not assist the defendant to establish that the steps which he took to ensure that truth were reasonable.
Paragraph 34.11.2 of the reply must be struck out on that principle.
SCHEDULE "A"
POLICE OFFICER: All right guys, thanks for comin’. Umm, it’s standing room only today obviously. Ah, Detective Senior Sergeant Jack Lee as you all know already. Ah, Jack will be giving obviously an update on Operation Dargan. He’ll be, umm, briefly reading a pre‑prepared statement to start off with and then we will take questions. I’ll just relieve you that Jack does have another briefing to go to at 3:30, so it’s not going to be excessively long. So, I’ll hand over to Jack.
LEE: Thanks mate. Yeah, thanks ladies and gentlemen for coming in this afternoon. Ah, today, operation Dargan detectives executed Criminal Investigation Act search warrants at a further two premises, ah, the Rayney home in Monash Avenue in Como and Mr Rayney’s business premises at the Francis Burt Chambers in the City. Our on-going investigations and forensic evidence have led us to believe it is very likely that Mrs Rayney was murdered at her Monash Street home, on Tuesday evening the 7th of August. The purpose of our examination today is to expand our forensic examination of, of this scene. Police executed force, forced entry, ah, to the…I’ll start that again sorry. Police executed a forced entry to the home after access was denied this morning. A minor damage was caused to the rear door. As a result of further investigations this morning, including the interview of Mr Rayney, he is now a suspect in the murder of his wife. He has been arrested and will be charged with an unrelated matter today. And I’ll take your questions.
PRESS: What makes you believe…
PRESS: What has he been charged with?
LEE: He has been charged with an offence under the Surveillance Devices Act, ah, section 5. That relates to, umm, the installation of a telephone tap on a, umm, on Corryn Rayney’s phone.
PRESS: The work phone or home phone? Or?
LEE: It was the home phone.
PRESS: Jack what, what, makes you believe that Corryn Rayney was murdered at the home?
LEE: Ah, as I said our, our forensic evidence, which we - we’ve been working behind the scenes for a long time as we’ve indicated. Umm, we’ve interviewed a lot of people. We’ve got a lot of forensic evidence and that evidence is starting to come back. Ah, we now believe that, umm, that, that is the most likely place where this offence occurred.
PRESS: Where abouts inside the home?
PRESS: Can you tell us where abouts in the house was that it is likely to have occurred?
LEE: No, I don’t wish to disclose the, the, exact area that we, we, think that has occurred at.
PRESS: Are you able to say if it was inside the actual building or to the outside of the building?
LEE: No, I, I don’t want to go down that path, it’s giving away information that at this stage we would like to keep, umm, confidential.
PRESS: Do you have a murder weapon?
LEE: I don’t, I don’t intend to discuss the murder weapon or whether there was a weapon or the cause of death or anything of that nature.
PRESS: Are you going to charge him with murder today?
LEE: The invest - the interview with Mr Rayney is on-going at this very moment. Umm, subject to the result of that interview, ah, we’ll know whether Mr Rayney’s been charged in relation to that particular offence. He will be charged in relation to the Surveillance Devices Act offence and that offence will, he will, for that offence he will be released on bail.
PRESS: Was the surveillance device government property?
LEE: Sorry?
PRESS: Was that surveillance device government property?
LEE: Ah, No. No, I don’t believe so.
PRESS: You’ve always said that to be considered a suspect Mr Rayney - you would have to have specific evidence linking Mr Rayney to that crime, to elevate him from being simply a person of interest. So we can assume from that, that you found that?
LEE: No, what we’re saying is, is we believe that the offence occurred at, umm, Monash Avenue. Umm, that makes Mr Rayney a, a significant person of interest or a suspect in this matter.
PRESS: Mr Rayney’s alibi has always been that he was at home with one of the girls, at least, on that night.
LEE: Yeah look, it’s, it’s not appropriate for me to discuss Mr Rayney’s previous statements in relation to, to this matter; it’s, it’s now subject to investigation.
PRESS: You said before Jack, that there was a,a, a separate assault and we were, we were, trying to indentify obviously there is a disposal scene at King’s Park. And you said that there was probably another area where she was murdered and perhaps another one where she was assaulted. Is the assault and the murder one and the same now? Are they both at that house?
LEE: Oh look that’s, that’s, we believe that the offence occurred at the house. Yeah, it’s, it’s probably, umm, not appropriate for me to go into details as to how much of the offence occurred there. It’s always been our belief, umm, that Mrs Rayney was conveyed to King’s Park after, umm after, she was assaulted and possibly after she was murdered.
PRESS: So now do you believe that she was in fact conveyed to King’s Park after she was murdered or is that still not determined? Obviously, clearly, conveyed there after she was assaulted. So now you at least got the assault at the house?
LEE: Yeah.
PRESS: Do you think she was conveyed there after she was murdered?
LEE: Yeah, look we, we believe that she was murdered prior to being placed in the vehicle, yes.
PRESS: Do you believe that one of the children was at the house when she was….
LEE: Sorry?
PRESS: Do you believe that one of the children was at the house when the…
LEE: Oh look as far as pinning it down to an actual time frame, that’s, that’s very difficult. We know that the children were at the house over night, umm, so I suppose the answer to that is yes, but I can’t speculate on that.
PRESS: Have you interviewed the children?
PRESS: How long was the phone tapping…?
LEE: Pardon?
PRESS: You’ve interviewed the children?
LEE: No, we would like to interview the children. We’ve, ah, spoken to them early in the investigation. We would like to interview them again.
PRESS: What’s stopping you?
LEE: Sorry?
PRESS: Obviously that’s very important in terms of Mr Rayney’s alibi and things…
LEE: Oh look extremely important. Yes, yes we would like to speak to the children again.
PRESS: What is stopping you?
PRESS: Are they at home today Jack?
LEE: Ah, my belief is that they went to school before we arrived at the house.
PRESS: What is stopping you from interviewing the children?
LEE: Ah, Mr Rayney is.
PRESS: So he has refused to let you talk to them?
LEE: Umm
PRESS: Do you need his consent?
LEE: Yes we do need the consent of the parent to interview children. Yes we do.
PRESS: What about when that parent has been elevated to a suspect in a murder inquiry, do you still need their consent?
LEE: What?
Press: When they have been, once they have been elevated to a suspect as opposed to a POI in a murder do you still need…
LEE: Oh look I, I think we are speculating as to, to what…
PRESS: No its pretty, like you were saying, if the parent needs to give consent, if they are a suspect in a murder inquiry, do you still need consent?
PRESS: Is there a way you can get around that?
LEE: Oh it’s, it’s simply as a suspect. Yeah we still need the consent of a parent to interview a child, absolutely. We, we are constricted by rules.
PRESS: Is Mr Rayney your prime suspect now Jack?
LEE: He’s our only suspect at this time. We do have a number of persons of interest. Umm, some persons of interest have been excluded from this investigation, umm, some remain and I have no doubt that some will be injected into the investigation in the future. At this time, he is the primary person of interest or, or the suspect.
PRESS: Do you think he worked with other people to do this, because you said they might come into the investigation at some time?
LEE: Oh, I wouldn’t like to speculate on whether this offence occurred, umm, was the result of one or more persons.
PRESS: Why were the lawyers at the house today?
LEE: Ah, ask the lawyers.
PRESS: Were they asked by you? Did you invite them to attend?
LEE: Ah, we didn’t invite any lawyers to attend the house, no.
PRESS: Has Mr Rayney…
PRESS: Extrapolate on the actual entry to the house this morning. Did he sort of yell out from inside, “No you can’t come in”, or did you just have no answer?
LEE: Oh look I wasn’t there when the warrant was, umm, executed.
PRESS: What have you heard happened at the time?
LEE: My understanding was we demanded entry, umm, we tried to contact the house, we were aware Mr Rayney was inside the house and he didn’t answer the door. Umm after knocking several times, we forced entry.
PRESS: Do you think one…
PRESS: Was that, was that lack of, lack of, umm, cooperation if you like at the time, was that explained by the fact he was in the shower or anything like that later on the track?
LEE: No, no it’s not explainable.
PRESS: Do you think one or more people buried her, buried her, in Kings Park?
LEE: Do I think there was one or.
Press: Or more people?
LEE: Oh look I, I wouldn’t like to speculate on that. If we knew the answers to those sorts of questions, we probably would be having a totally different conference now.
PRESS: Has Mr Rayney been cooperating?
PRESS: Are you aware of the children, sorry…
PRESS: Has Mr Rayney been cooperating with you today?
LEE: Ah, no.
PRESS: Has he refused to answer questions?
LEE: Umm, the, the interview of Mr Rayney is on-going at this time. Umm, I am not currently aware of the status of that so that may have changed but he has not cooperated with police today. That was why he was arrested at the scene and that was why we forced entry into the house.
Press: …have they found
LEE: Sorry?
PRESS: Have they found the digging implement?
LEE: Oh look we, we found a number of digging implements. We don’t know yet whether we’ve got the correct one. Umm, we have so many forensic, umm, samples in relation to this investigation and we are investigating many other offences of course. Ah, we simply don’t know if we’ve got the right one at this stage.
PRESS: Have you forensically linked him to the disposal scene?
LEE: Oh, I don’t wish to discuss particular, umm, I don’t wish to discuss particular items of evidence or particular forensic results. That, that wouldn’t be appropriate.
PRESS: Yeah hold on. But you have told us that you’ve got forensic evidence that suggests that she was in fact murdered at the house, so we’ve got that detail. Have you got any forensic evidence…
LEE: Yeah, look and that’s a broad brush. We, we do believe that, ah, that’s the most likely place where she was killed. Umm, we can’t say definitively but we believe that’s the most likely. Umm, there, there are, ah, many forensic results which have to come back which give us that, that indication. Umm, we can not exclude at this time that it happened elsewhere. But we believe it, it is most likely that it, it occurred at that house.
PRESS: …that charge, is that a state or a federal offence that surveillance thing? It’s an offence to tap your phone?
LEE: It’s the Surveillance Devices Act. It’s a West Australian statute. Umm, we’ve charged him under section 5(1) I believe.
PRESS: You can’t tap your own phone?
LEE: You can’t tap a phone if you are recording someone else’s conversation and they’re not party to that.
PRESS: How long do you believe that was in place for?
LEE: Ah look – that’s not appropriate for me to discuss, the, the actual, ah, particulars of an offence that’s goin’ before court. That is sub judice.
PRESS: Jack do you…
PRESS: What is your allegation though? What’s the allegation why he might have done that?
LEE: Oh, look that’s why we’re interviewing Mr Rayney today. You know, I’ve, we have evidence, that he was the one that, that coordinated the, the, installation of the device. Umm, as to the reasons why, umm, that’s, that’s why we’re interviewing him.
PRESS: Are there other parties that you need to talk to about the actual installation? Is there a private investigator or someone else who’s perhaps been called in to install this?
LEE: Ah, there, there are other people who will be charged in relation to that offence, yes.
PRESS: Who are those people?
LEE: Oh, I don’t wish to discuss that at this stage.
PRESS: Is one of them a private investigator?
LEE: Umm, oh, I don’t know what their, oh I am not aware if they are.
PRESS: Is that how you found out about it, through the other parties?
LEE: I don’t want to, I don’t want to go there.
PRESS: Jack, do you believe the two girls were in the house when their mother was murdered?
LEE: I suppose that, that’s, that’s the problem with speculation. Once you, you go on from yes we believe that it is most likely she was murdered at that house, we believe it was most likely occurred on that night and from the, the information that we have, we believe the girls were at home for most of that night. So, I suppose the answer is yes but it’s as a series of, oh, it’s a conclusion. Umm, we don’t have evidence to say they, they saw something, if that’s where you’re goin’.
PRESS: Potentially though, they could be your key witnesses?
LEE: Absolutely.
PRESS: Can you now say how she was murdered?
LEE: Ah, no I’m not prepared to discuss that.
PRESS: Can you say where the blood was found in the car?
LEE: Ah, no I’d, I’d rather not, because it leads on to other areas that I, I don’t wish to discuss.
PRESS: Have the girls spoken about the night’s events with anybody else, a family member perhaps?
LEE: I don’t know.
PRESS: Have you spoken to neighbours? Did they hear an argument or anything at the house?
LEE: All the neighbours have been interviewed. I, I can’t go into specifics of what people have told police and what they’ve said in their statements but we have interviewed all of the neighbours in the street, yes.
POLICE OFFICER: Look, we’ll go to the last question now.
PRESS: Apart from the phone taps is there any evidence that links Lloyd Rayney to the murder?
LEE: Ah, look, I am not suggesting that the phone tap links him to the murder. I’m simply saying that as a result of our investigations we’ve uncovered an illegal, umm, practice and we, we are prosecuting in relation to that.
PRESS: So why is Lloyd Rayney your prime suspect?
LEE: He is our prime suspect because our, our evidence at this time leads us to believe the offence occurred at that house and he is the, the occupant of that house.
PRESS: Jack, where are the girls now and who’s looking after them?
LEE: Ah, the girls were removed from school today by a family member and I don’t currently know where they are.
PRESS: Jack can you just clarify again for us, you said earlier that there is a possibility, you’re not sure at this stage, but there could be a charge of murder sometime later today.
LEE: No sorry I don’t want anyone to be mislead in relation to that. We are interviewing Mr Rayney in relation to the murder of his wife. Umm, pending the outcome of that interview, umm, that would be the only time, if Mr Rayney was to make some level of admission, that would be the only time, today, we would prefer that charge. At this time we have no intention and no evidence to suggest that Mr Rayney is in fact guilty of or is in fact, umm, responsible for this offence.
PRESS: So you’re closer but you’re not close enough yet.
LEE: We, look, we, we’ve have worked very hard behind the scenes in relation to this and there’s been a lot of work has gone on by a very dedicated team. We’ve excluded a lot of people, we’ve included some people, ah, we’ve substantially raised the level of one particular person in relation to this. We now think we know where the offence occurred. Umm, yeah, I’d say we are substantially further than we were. Umm, there’s still a long way to go and, umm, we, as I’ve said many times I think we have the evidence. It’s a matter of actually working out where it all fits together.
PRESS: Is it usual for you to come out now today, publically, and name Lloyd Rayney as your prime suspect without having enough evidence to charge him with anything.
LEE: Ah, no look, that, that was simply a matter of had we been able to arrest Mr Rayney at his house and take him away, then we would never have named him, had the media not been present. Umm, you know, once it’s out there then, then obviously there’s, umm, there’s a fair degree of speculation as to what he is being charged with or what he’s been taken away in relation to, and it only fair, not only on him, but on the community.
PRESS: What have you seized from Francis Burt Chambers today?
LEE: Ah, I honestly don’t know. Umm, that, that search I believe is still underway. Umm, so, so I don’t know.
PRESS: Was there any family members at the Como house today?
LEE: Yes there was. Umm, but again, I don’t have all the details. I, I believe Mr Rayney’s mother was there, initially.
POLICE OFFICER: Ok, thanks guys.
PRESS: Thanks Jack.
PRESS: Do you know what the penalty is for the for the, the surveillance devices?
LEE: Ah, yes a $5000 fine or 12 months’ imprisonment.
POLICE OFFICER: Okay, if you want cut-aways guys, you gotta get them now.
PRESS: $5000 fine and sorry I didn’t hear the last bit?
LEE: Or 12 months.
PRESS: Or 12 months imprisonment.
PRESS: What’s the actual charge called?
LEE: Ah, yeah, good one, I’ve never heard it before. Oh sorry, umm, look it’s, it’s an offence under section 5 of the Surveillance Devices Act, it’s, umm, which regulates the use, installation and maintenance of listening devices. Okay, what the actual short name of the charge is I, I don’t know.
PRESS: When do expect him to appear in court on it?
LEE: Umm, he’ll be bailed to a day next, next week, I should imagine.
PRESS: Jack, what was the purpose of installing those?
LEE: Ah, you have to ask Mr Rayney. That’s the, that’s why we’re interviewing him.
PRESS: Do police have any idea at this stage?
LEE: No, I’d have, I’d have to speculate. Yes.
PRESS: Did you say he will be bailed until a day next week?
LEE: Yes.
PRESS: He will definitely get bail will he? Do you know what it’s going to be?
LEE: Oh look, he’ll, he’ll be out on his own person recognisance. Umm, you know, he’s not run away in the last five weeks. Why would we expect him to run away now because he’s been charged with a minor offence?
PRESS: Will you be lodging him at the lock up or will you be letting him out of the front door of Curtin House?
LEE: I, I don’t know, I don’t know. We’ve got, we have teams that are working in relation to each of the specific areas of, of this investigation and one team is, is, umm, conducting the interview of Mr Rayney. When they’ve completed that interview, and subject to, umm, any admissions or confessions he may make, they’ll determine what if any offences he’s going to be charged with. He will be charged with that particular offence, and then they’ll determine his bail and he, he will be released on bail. And whether that’s done from Curtin House or whether it’s done from East Perth I, I don’t know.
PRESS: Thanks Jack.
POLICE OFFICER: Thanks ladies and gentlemen. Thanks guys. Good on ya.
PRESS: Under the Act, how long can you keep him there without charging him with that other offence?
LEE: Umm, it’s multiples of 6 hours.
PRESS: Thank you.
SCHEDULE "B"
Further and alternatively, the Oral Utterance bore, and was understood to bear, the meaning pleaded in paragraph 4 above by way of innuendo.
Particulars
5.1Prior to the publication of the Oral Utterance, while performing or purporting to perform the functions of a serving member of the Western Australian Police Force, various members of the Western Australian Police Force published numerous statements to journalists or reporters (Prior Utterances) about the investigation of the murder of the plaintiff’s wife, including the following:
5.1.1on or about 12 August 2007, Detective Sergeant Paul Robinson (DS Robinson) said words to a journalist or reporter from The West Australian newspaper to the effect that no family member of the plaintiff’s wife was implicated in her disappearance, which words were republished at page 3 of The West Australian newspaper on 13 August 2007 under the headline “Untouched bank accounts deepen police fears for missing mother”;
5.1.2on or about 16 August 2007, DSS Lee said words to a journalist or reporter to the effect that despite overwhelming evidence that the killer of the plaintiff’s wife had driven her car to and from the Kings Park burial site, police admitted they did not have a suspect and did not know where Mrs Rayney was killed, which words were republished on the front page of The West Australian newspaper on 17 August 2007 under the headline: “Police start murder hunt with few clues”;
5.1.3on or about 17 August 2007, DSS Lee said words to a journalist or reporter to the effect that:
(a)police would not rest until they caught the killer, which words were republished in an online story dated 17 August 2007 accessible at the website of The Australian newspaper under the headline: “DNA identifies missing mother”; and
(b)the killer should be warned that the meticulous forensic team would find any evidence left behind, which words were republished at the online media service known as Dow Jones Factiva on 17 August 2007 under the headline: “Police believe they know how Rayney died”;
5.1.4on or about 17 August 2007, Western Australian Police Force Media Liaison Officer Sergeant Ian Hasleby said the following words to a journalist or reporter:
“DNA samples and fingerprints from the vehicle, along with forensic samples extracted from the soil at Kings Park, will be minutely examined to try and identify the person responsible for her death.”
which words were republished at the online media service known as Australian Associated Press (AAP) on 17 August 2007 under the headline: “WA: Autopsy likely today on Perth Lawyer”;
5.1.5on or about 17 August 2007, DS Robinson said the following words to a journalist or reporter:
“She’s got a good job, she’s got children. No one (of interest) is being questioned.”
which words were republished in the Cambridge Post newspaper at page 3 on 18 August 2007 under the headline: “Murderer leaves map to victim’s bush grave”;
5.1.6on or about 17 August 2008, DSS Lee said words to a journalist or reporter to the effect that there was no information to suggest Mrs Rayney knew her killer, or that the murder was pre-meditated and said the following words:
“We can’t just assume this [Kings Park] is where everything occurred. We are just being very cautious. We don’t know what injuries we’ve got. We have a professional forensic team, we are pulling out all stops for this. If the killer left any evidence, we will find it.”
which words were republished in the Cambridge Post newspaper at page 90 on 18 August 2007 under the headline: “Murder hunt’s chilling end”;
5.1.7on or about 18 August 2007, DSS Lee said words to a journalist or reporter to the effect that police did not have any murder suspects and said the following words:
“I’m not prepared to discuss persons of interest. We have no idea who the offender in this case is.”
which words were republished at page 7 of The West Australian newspaper on 18 August 2007 under the headline: “Police discover blood in murdered mother’s car”;
5.1.8on or about 19 August 2007, Western Australian Police Commissioner Karl O’Callaghan said words to a journalist or reporter to the effect that there were persons of interest in the case, but that he would not say if there were any suspects, and said the following words:
“I’m not prepared to give you that equivocal information.”
which words were republished at the online media service operated by AAP on 19 August 2007 under the headline: “WA: Persons of interest identified in murder investigation”;
5.1.9on or about 19 August 2007, DS Robinson said words to a journalist or reporter to the effect that every person connected to Mrs Rayney remains a person of interest and said the following words:
“We haven’t eliminated anyone. When you are dealing with people who have a job such as Mrs Rayney’s, it really does open up the window of who may have been responsible. You have to understand the investigation is in its early stage.,”
which words were republished at the online media service operated by AAP on 19 August 2007 under the headline: “WA: Persons of interest identified in murder investigation”;
5.1.10on or about 20 August 2007, Police Commissioner O’Callaghan said words to a journalist or reporter to the effect that:
(a)there were a number of persons of interest in the murder of the plaintiff’s wife, but refused to confirm if there were any suspects;
(b)there were a number of persons of interest with whom police would like to talk but he was not prepared to give out information about potential suspects at that point in time;
which words were republished in an item accessible on The Australian newspaper’s website on or about 20 August 2007 under the headline: “Rayney murder inquiry widens”, and also in an item published at page 5 of The West Australian newspaper under the headline: “Police on Rayney murder have ‘persons of interest.”
5.1.11on or about 20 August 2007, DSS Robinson said the following words to a journalist or reporter:
“Every person who has been involved in Mrs Corryn Rayney’s life is a potential person of interest until those persons are eliminated from the inquiry.,”
which words republished in an item accessible on The Australian newspaper’s website on or about 20 August 2007 under the headline: “Rayney murder inquiry widens”;
5.1.12on or about 21 August 2007, Police Commissioner O’Callaghan said words to a journalist or reporter to the effect that his police force was under scrutiny following the overturning of several high-profile murder convictions, including the wrongful conviction of Andrew Mallard, whose treatment was the subject of a corruption inquiry, which words were republished in an item accessible on The Australian newspaper’s website on or about 22 August 2007 under the headline: “Bootscooting dancers honour slain registrar”;
5.1.13on or about 21 August 2007, Police Commissioner O’Callaghan said words to a journalist or reporter to the effect that:
(a)although police still had no firm suspects, the search for Mrs Rayney’s killer had narrowed;
(b)police had ruled out the possibility that Mrs Rayney was the victim of a random killing;
(c)police now believed it was more likely the murderer had a connection to her; and
(d)police refused to reveal how many persons of interest police had identified, and said the following words:
“We don’t believe there’s any rampaging killer out in Perth at the moment. We think that this is some sort of person who is known to Mrs Rayney.”
which words were republished in an item published on the front page of The West Australian newspaper on 22 August 2007 under the headline: “Rayney likely knew her killer’”;
5.1.14on or about 22 August 2007, DSS Lee said the following words to a journalist or reporter:
“We’re executing a search warrant today at the Rayney home. This is a process of elimination which is a normal line of inquiry. Mr Rayney has fully cooperated with the police in this investigation. I wish to emphasise that Mr Rayney is not a suspect, and any further speculation regarding his involvement in this offence may be detrimental to the investigation. Thank you. I’m not taking questions.”
which words were widely republished in the media, including in an item available at AAP’s online website on 22 August 2007 under the headline: “WA: Husband of murdered registrar not a suspect: police”, in an item published at on the front of The West Australian newspaper on 23 August 2007 under the headline: “Rayney told friends she feared being murdered”, and in an item accessible on The Australian newspaper’s website on or about 24 August 2007 under the headline: “Rayney denies sending his wife threatening emails”;
5.1.15on or about 24 August 2007, DSS Lee said words to a journalist or reporter to the effect that it would take weeks to conduct interviews and test the evidence but that the murderer would be found, which words were republished in an item available on the AAP’s online website on or about 24 August 2007 under the headline: “WA: Police rule out Rayney amid speculation in murder probe”;
5.1.16on or about 24 August 2007, DSS Lee said words to a journalist or reporter to the effect that he remained confident of solving the murder and that detectives had painstakingly turned every stone and collected every piece of evidence that was available and said the following words to a journalist or a reporter:
“The standard of proof is very high and so it should be. We’ve had everything right.”
which words were republished in an item available on The Australian newspaper’s website on or about 24 August 2007 under the headline: “Police refuse to reveal if murder victim had a lover”;
5.1.17on or about 25 August 2007, DSS Lee said words to a journalist or reporter to the effect that Taskforce Dargan was working around the clock on the case and was confident the killer would be caught, and said the following words:
“From when she was at bootscooting, no one physically saw her get into her car and drive away and that’s the frustrating bit. Did she actually make it to her car? Was someone waiting for her? Did she get home and someone was waiting for her there? With this particular crime, we are missing the scene of death. We’re missing Mrs Rayney’s movements from when she went bootscooting to when she was buried, and these are key components.”
“I’ve got a lot of detectives on this. I am confident of resolving this case. I don’t believe there are unresolved crimes. There are crimes which are very, very difficult, but in this day and age, with the sort of technology we’re armed with now, I think all crimes are solvable. I am very confident we will get a result in this. We’ve done everything right.”
which words were republished in The Sunday Times newspaper at page 5 on 26 August 2007 under the headline: “Murder mystery – police may already have killer’s DNA”;
5.1.18on or about 26 August 2007, Police Commissioner O’Callaghan spoke words to a journalist or reporter to the effect that there were a number of persons of interest, but police would not give out information about potential suspects, which words were republished in the Sunday Times newspaper at page 73 on 26 August 2007 under the headline: “Who killed Corryn Rayney and why?”;
5.1.19on or about 26 August 2007, DSS Lee spoke words to a journalist or reporter to the effect that Taskforce Dargan was working around the clock on the case and he was confident the killer would be caught, and said the following words:
“I’ve got a lot of detectives on this. I am confident of resolving this case. I don’t believe there are unresolved crimes. There are crimes that are very, very difficult, but in this day and age, with the sort of technology we’re armed with now, I think all crimes are solvable. I am very confident we will get a result in this. We’ve done everything right.”
which words were republished in the Sunday Times newspaper at page 5 on 26 August 2007 under the headline: “Murder mystery – Police may already have killer’s DNA”;
5.1.20on or about 29 August 2007, DSS Lee spoke the following words to a journalist or reporter in explaining the meaning of the term “suspect”:
“A suspect indicates that there is some level of evidence against a person having committed a crime. There is no evidence against Mr Rayney having committed any crime. He is not a suspect in this matter.”
which words were widely republished in the media, including on the ABC 7:00pm evening news broadcast on 29 August 2007, on the online media service operated by AAP on 29 August 2007 under the headline: “WA: Rayney husband still a person of interest in Rayney death”, on the online media service operated by Networked Knowledge on 29 August 2007 under the headline “Murdered lawyer Corryn Rayney funeral on Saturday”, on the online media service operated by The Australian on 30 August 2007 under the headline “Rayney no suspect but ‘still of interest’”, on the online media service operated by The Mercury on 30 August 2007 under the headline “Husband not a suspect”, and in the Cambridge Post, page 1 on 30 August 2007 under the headline “Murder unit wants us to keep on checking”.
5.1.21on or about 29 August 2008, DSS Lee said words to a journalist or reporter to the effect that the plaintiff was at home looking after the couple’s 2 daughters on the night of Mrs Rayney’s disappearance, and was not a suspect, which words were republished at the online media service operated by The West Australian newspaper under the headline: “Police release body of murdered mum”;
5.1.22on or about 29 August 2007, DSS Lee said words to a journalist or reporter to the effect that the plaintiff was a person of interest but not a suspect in the death of his wife, and said the following words:
“A suspect indicates there is some level of evidence against a person having committed a crime, there is no evidence against Mr Rayney having committed any crime, he is not a suspect.”
…
“My belief is all crimes are solvable, if you take the right approach to them, and using the technology available to us today yes, I am very confident that we will resolve this.”
which words were republished at the online media service operated by AAP on 29 August 2007 under the headline: “WA: Rayney husband still a person of interest”;
5.1.23on or about 29 August 2007, DSS Lee said words to a journalist or reporter to the effect that police had no evidence that the plaintiff was involved in his wife’s murder and said the following words:
“We’ve had a number of people, who, by their status and their association with the deceased, became automatic POIs (persons of interest) that we’ve had to exclude.”
…
“When she left bootscooting on Tuesday the 7th of August, she met up with her killer. Whoever that person may be, the movements of Corryn Rayney on that night are absolutely crucial to this investigation. All crimes are solvable is you take the right approach to them. Using the technology and methodology to us today, yes, I am very confident we’ll resolve this.”
which words were republished at the online media service operated by The Australian newspaper on 30 August 2007 under the headline: “Rayney no suspect but still ‘of interest’”;
5.1.24on or about 29 August 2007, DSS Lee said words to a journalist or reporter to the effect that:
(a)the plaintiff remains a person of interest; and
(b)police had persons of interest in the death of Mrs Rayney, but no conclusive evidence;
which words were republished in an online media service operated by The Mercury newspaper on 30 August 2007 under the headline: “Husband was not a suspect”;
5.1.25on or about 29 August 2007, DSS Lee said words to a journalist or reporter to the effect that a number of people, including the plaintiff, remained persons of interest in the murder although the police had no evidence against them, which words were republished at the online media service operated by AAP on 31 August 2007 under the headline: “WA: Murdered Perth lawyer to be farewelled tomorrow”;
5.1.26on or about 29 August 2007, DSS Lee said words to a journalist or reporter to the effect that the plaintiff was a person of interest, but not a suspect and said the following words:
“Mr Rayney is a person of interest, as are many people. A suspect indicates there’s a level of evidence against a person. There’s no evidence against Mr Rayney. As best we can understand, he was at home with the kids.”
which words were republished in the Cambridge Post newspaper at page 1 on 1 September 2007 under the headline: “Murder unit wants us to keep on checking”;
5.1.27on or about 1 September 2007, DSS Lee said words to a journalist or reporter to the effect that the plaintiff was not a suspect in the investigation which words were republished in The West Australian newspaper at page 13 on 1 September 2007 under the headline: “Rock star sends note for Rayney funeral”;
5.1.28on or about 1 September, DSS Lee said the following words to a journalist or reporter:
“We are very, very confident we can resolve this. We are still in the evidence collection phase. We have spoken to a number of persons of interest, some have been eliminated.”
which words were republished in the Cambridge Post newspaper at page 70 on 1 September 2007 under the headline: “Murder team asks for help”;
5.1.29on or about 2 September 2007, DSS Lee said words to a journalist or reporter to the effect that the plaintiff was a person of interest, but not a suspect, which words were republished in the Sunday Times newspaper at page 5 on 2 September 2007 under the headline: “Goodbye Mum”;
5.1.30on or about 4 September 2007, DSS Lee said words to a journalist or reporter to the effect that:
(a)he remained confident that his team would find the killer; and
(b)he believed crucial clues lay in where Mrs Rayney went and what she did after leaving a bootscooting class at the Bentley Community Centre,
which words were republished in The Western Suburbs Weekly newspaper on 4 September 2007 under the headline: “Missing Evidence”;
5.1.31on or about 6 September 2007, DSS Lee said words to a journalist or reporter to the effect that:
(a)the police have an ever growing bundle of theories, some more conspiratorial than others, a file of forensic evidence and so-called people of interest, including the plaintiff;
(b)there was no reason to believe that police had a suspect, let alone a killer;
(c)police have already stated that the plaintiff is not a suspect though he is still a “person of interest”;
(d)police didn’t have a suspect but they have “persons of interest” being people who may have information that may assist the investigation;
and said the following words:
“We know where we are going. We are getting good intelligence. We are working bloody hard on it. But this is the real-life detective work. It’s not glossy and it doesn’t end up on the front of the paper every day.”
which words were republished in The West Australian newspaper at page 9 on 6 September 2007 under the headline: “One month on, and police have barely a clue who killed Corryn”;
5.1.32on or about 6 September 2007, DSS Lee said words to a journalist or reporter to the effect that:
(a)police were making great progress in the case and were confident of finding the killer;
(b)police did not have a suspect, but a number of people, including the plaintiff, remain persons of interest in the murder;
(c)he was “very, very confident” of solving the crime and believed the answer lay within the forensic evidence gathered and other items examined;
and the following words were said:
“From those I have no doubt we have the answer to this crime.”
which words were republished at the online media service operated by AAP on 6 September 2007 under the headline: “WA: Police confident of finding court registrar’s killer”;
5.1.33on or about 7 September 2007, DSS Lee said words to a journalist or reporter to the effect that:
(a)they did not have a suspect in the case;
(b)police had combed 19 different locations for evidence but had not yet found the DNA they needed to point them towards the killer;
(c)the plaintiff had been named as a person of interest but police say he is not a suspect;
which words were republished in The Australian newspaper at page 6 on 7 September 2007 under the headline: “Police baffled over Rayney murder”;
5.1.34on or about 11 September 2007, DSS Lee said words to a journalist or reporter to the effect that:
(a)police had no official suspects;
(b)police had “persons of interest”, including the plaintiff;
(c)the case would not be solved quickly;
(d)investigators would work hard over the coming weeks and months to solve the murder;
which words were republished in The West Australian newspaper at page 9 on 11 September 2007 under the headline: “Rayney ‘of interest’ in wife’s murder”;
5.1.35on or about 20 September 2007, after police had arrested the plaintiff in the morning, Police Commissioner O’Callaghan said words to a journalist or reporter to the effect that:
(a)police did not have a suspect but a number of people, including the plaintiff, were persons of interest in the murder;
(b)that situation had not changed;
(c)police will brief the media later on that day;
and the following words were said to a journalist or reporter:
“I checked this morning with detectives to see if (his) status had changed. At this stage it has not changed and he is still being treated as a person of interest in the inquiry. Police are conducting further inquiries at that house, with the intention of doing some more forensic work at this point in time”
which words were republished at the online media service operated by Factiva on 20 September 2007 under the headline: “Rayney ‘of interest’ in wife’s murder”;
5.2The Prior Utterances were published by those serving members of the Western Australian Police Force in circumstances where:
5.2.1they each knew and intended that publication of each of the Prior Utterances to journalists and reporters would be widely republished by those persons in all forms of media, including via the World Wide Web;
5.2.2they each authorised the journalists and reporters to whom the Prior Utterances were published to republish each of the Prior Utterances widely in all forms of media, including via the World Wide Web; and
5.2.3it was a natural and probable consequence that publication of each of the Prior Utterances to journalists and reporters would be widely republished in all forms of media, including via the World Wide Web.
5.3The plaintiff will invite the court to infer that a substantial number of listeners/recipients of the Oral Utterance, or its gist, as was republished in all forms of media, including via the World Wide Web, would have had existing knowledge of the Prior Utterances when listening to/receiving republication of the Oral Utterance, or its gist, in media reports, including from reports available on the World Wide Web.
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