Rayney v The State of Western Australia [No 7] - [2016] WASC 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 7] [2016] WASC 288

CORAM: CHANEY J

HEARD: 16 AUGUST 2016

DELIVERED : 9 SEPTEMBER 2016

FILE NO/S: CIV 2177 of 2008

BETWEEN: LLOYD PATRICK RAYNEY
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Defamation - Trial by jury - Election - Exceptional publicity adverse to plaintiff - Potential risk to fair trial - Prolonged examination of records - Issue that cannot conveniently be dealt with by jury

Legislation:

Defamation Act 2005 (WA), s 21, s 21(1), s 21(3), s 22(3), s 30
Evidence Act 1906 (WA), s 79C
Rules of the Supreme Court 1971 (WA), O 32 r 2
Supreme Court Act 1935 (WA), s 42

Result:

Order that matter not be heard by jury

Category: B

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr T K Tobin QC & Mr C S Bydder

Solicitors:

Plaintiff: Bennett & Co
Defendant: State Solicitor for Western Australia

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

Bond Corporation Holdings Ltd v Australian Broadcasting Commission [1989] NSWCA 22; [1973‑96] A Def R 50‑050
Channel Seven Sydney Pty Ltd v Fierravanti‑Wells [2011] NSWCA 246; (2011) 81 NSWLR 315
Griffith v Australian Broadcasting Corporation [2003] NSWSC 298
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWSC 231
Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67
Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148
Sutcliffe v Pressdram Ltd [1991] 1 QB 153
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383

CHANEY J: In this action, the plaintiff sues the defendant for damages for defamation. The alleged defamation is said to have occurred when a senior sergeant of the Western Australia Police gave a series of media conferences on 16 August 2007, 22 August 2007, 29 August 2007 and 20 September 2007. Alternatively, the alleged defamatory words are said to have been spoken at the media conference held on 20 September 2007. The plaintiff pleads that, in their ordinary natural meaning, the words complained of meant that the plaintiff murdered his wife, or alternatively that he so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife.
The words used by the senior sergeant at the media conferences are not substantially in issue, but the defendant denies that the words used bore the defamatory imputations pleaded by the plaintiff. As to the plaintiff's alternative imputation that the words meant that he so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife, the defendant pleads that, if the words did bear that meaning, then they were true. The defendant pleads an alternative meaning that the words are said to have conveyed, namely that the police suspected the plaintiff of having murdered or having unlawfully killed his wife and had reasonable cause for doing so, and that that imputation was true.
The defendant pleads alternative defences that the words were spoken on an occasion of statutory qualified privilege pursuant to s 30 of the Defamation Act 2005 (WA), or alternatively an occasion of qualified privilege at common law.
The matter has been provisionally listed for a six week trial commencing on 27 February 2017. On 25 May 2016, the defendant made an application pursuant to O 32 r 2 of the Rules of the Supreme Court 1971 (WA) for an order that the action be tried by jury. In doing so, the defendant effectively made an election under s 21 of the Defamation Act for the proceedings to be tried by jury. The application is opposed by the plaintiff who, in effect, invites the court to exercise its discretion to order that the proceedings not be tried by jury.

Statutory framework

Section 21 of the Defamation Act provides:
Election for defamation proceedings to be tried by jury
(1)Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.
(2)An election must be ‑
(a)made in accordance with rules of court; and
(b)accompanied by any relevant fee prescribed by a written law.
(3)Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if ‑
(a)the trial requires a prolonged examination of records; or
(b)the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.
That section substantially reflects s 42(1) of the Supreme Court Act1935 (WA), which provides:
Civil actions, trial with or without jury
(1)Subject as hereinafter provided, if, on the application of any party to an action made not later than such time before the trial as may be limited by the rules of court, the Court or a judge is satisfied that ‑
(a)a charge of fraud against that party; or
(b)a claim in respect of libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage,
is in issue, the action shall, subject to the provisions of the Juries Act 1957, be tried by a jury, unless the Court or judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any scientific or local examination which cannot conveniently be made with a jury; but, save as aforesaid, any action may, subject to rules of court, in the discretion of the Court or a judge, be ordered to be tried with or without a jury.
As Kenneth Martin J noted in Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67 [23], the need for an election to be made by a party to a defamation action indicates that in the ordinary course, absent such an election, a defamation action would be heard before a judge sitting alone without a jury. The words 'unless the court orders otherwise' at the commencement of s 21(1) confer a broad discretion. As McColl JA (with whom Giles JA and Handley AJA agreed) observed in Channel Seven Sydney Pty Ltd v Fierravanti‑Wells [2011] NSWCA 246; (2011) 81 NSWLR 315 [46]:
Prima facie, a grant of power to a court (including the conferral of jurisdiction) should not be construed as subject to a limitation not appearing in the words of that grant. Rather it should be construed in accordance with ordinary principles and the words used given their full meaning unless there is something to indicate to the contrary. It is inherent in the conferral of such a power that it must be exercised judicially and in accordance with legal principle, thus warranting 'the most liberal construction' of the power because such a requirement would exclude the possibility that the power might be exercised 'arbitrarily or capriciously or to work oppression or abuse': Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J; see also at 190 ‑ 192 per Mason CJ and Deane J; Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14 at 17 per Mason CJ, Deane and Dawson JJ; at 27 ‑ 29 per McHugh J. In language reminiscent of Dixon J's statement in Water Conservation & Irrigation Commission (NSW) v Browning, Gaudron J has said that a broad judicial discretion is properly confined by identification of the matters which are extraneous to the power and the exposition of those which are relevant to the power and the way in which they bear on its exercise: Patton v Buchanan Borehole Collieries Pty Ltd at 23.
The exercise of the discretion under s 21 must be made in the circumstance that once a party has exercised its election under s 21 for the proceedings to be tried by a jury, they have a vested or accrued substantive right: Fierravanti‑Wells [50]. The opening words of s 21(3) make it clear, however, that the general discretion conferred under s 21(1) is not confined by the specific matters identified in s 21(3) as permitting (although not obliging) the court to dispense with trial by jury.

The plaintiff's contentions

The plaintiff contends that there are a number of reasons why, either alone or cumulatively, the court should exercise its discretion to direct that the matter not be tried before a jury. Those matters broadly fall into three categories. The first category relates to the capacity of the plaintiff to receive a fair trial having regard to the extensive and exceptional publicity surrounding him and the murder of his wife in 2007. The second involves the complexity of the issues which arise on the pleadings. The third category concerns the extent of the examination of records which will be required at trial.

Adverse publicity

The plaintiff contends that he has been the subject of enormous, prolonged and extensive publicity in the media which has generated adverse public opinion for a period of nine years, such that the plaintiff cannot realistically receive a fair trial before a jury.
In support of that contention, the plaintiff swore an affidavit dated 29 June 2016. He said that on 8 December 2010 he was charged on complaint with the wilful murder of his wife. The matter subsequently went to trial before a judge sitting alone. Mr Rayney attached to his affidavit an affidavit sworn by Ms Laura Marie Timpano sworn on 3 October 2011 in support of the plaintiff's application for trial by judge alone without a jury. That affidavit made reference to publicity surrounding the investigation into the death of Mrs Rayney and public comments made by police and others during the initial investigation stage, including at and after the media conference of 20 September 2007 which is the subject of these proceedings. Ms Timpano then outlined the vast amount of publicity through different media in relation to the murder of Mrs Rayney and speculation as to the plaintiff's involvement. The text of Ms Timpano's affidavit occupies 118 pages. The affidavit attaches 601 pages of annexures comprising some 85 annexures of newspaper articles, discs of television news items, and pages from internet sites and books which were generally critical of the plaintiff and tended to implicate him in the murder of his wife.
The plaintiff also attached an affidavit of Paul Meyer sworn on 6 June 2014. On 20 September 2007, the plaintiff was charged on complaint with an offence under the Surveillance Devices Act 1998 (WA). That matter subsequently became the subject of two charges under the Telecommunications (Interception and Access) Act 1979 (Cth) and was the subject of a District Court trial. On 16 May 2014, Mr Meyer's affidavit was filed in the District Court in support of an application for a permanent stay of the telecommunications charges. Mr Meyer attached to his affidavit a copy of the affidavit of Ms Timpano with its annexures. Mr Meyer deposed to the fact that in November 2011, Commissioner Sleight had ordered that the murder charge against the plaintiff be heard by judge alone, and that the trial proceeded from 16 July 2012 to 3 October 2012 with closing submissions on 16 and 17 October 2012. On 1 November 2012, judgments of acquittal for both wilful murder and manslaughter charges were delivered by the trial judge in a 369‑page judgment and a 29‑page summary of the reasons. On 22 November 2012, the State filed a notice of appeal against the verdicts of acquittals, and that appeal was dismissed on 23 September 2013 after having been heard on 7 and 8 August 2013.
Mr Meyer then outlined what he described as prejudicial publicity since 2 October 2011, including extensive exchanges on website chatrooms and twitter accounts suggesting the plaintiff's guilt and various threats against him following his acquittal of the charges.
Over and above the 720 pages of Ms Timpano's affidavit, Mr Meyer annexed in excess of 1,100 pages of media articles and web pages concerning the coverage of the plaintiff's murder trial and subsequent acquittal.
The plaintiff also attached an affidavit of Anthony Gerald Elliott sworn on 4 August 2014 which had been filed in support of the application for a permanent stay of the telecommunications charges. The affidavit deposed to the availability on the internet of extensive information said to be prejudicial to the plaintiff in relation to the telecommunications charges, and also annexed an anonymous communication the plaintiff received after his acquittal of the murder charge asserting his guilt.
The plaintiff said that from June 2014 to the present date, members of the public regularly make it known to him their belief that he murdered his wife. He said that incidents of that type occur most commonly soon after there has been publicity about him in the newspaper or on television. He gave numerous examples of such occasions and events which appear to be concerted efforts by members of the public to suggest his guilt of the murder of his wife. He deposed to the thousands of results obtained on a google search of his name, or his name together with the expressions 'prime suspect' or 'only suspect'.
The annexures to the plaintiff's affidavit, which largely comprise publicity which is adverse to him, number in excess of 2,000 pages.
The defendant relied on an affidavit of Rachael Young, a solicitor in the employ of the defendant's solicitors. She deposed to the existence of an extensive amount of publicity which can generally be described as supportive of the plaintiff in relation to the charges against him, or contained reports as to the plaintiff's endeavours to vindicate his reputation by these proceedings. Those publications occupy some 391 pages.
In this case, the issues for determination at trial will include consideration of the question as to whether imputations that:
(i)the plaintiff so conducted himself as to give rise to a reasonable suspicion that he murdered his wife (SC [6.2], D [36(a)]);
(ii)the police suspected the plaintiff of having murdered or unlawfully killed his wife and had reasonable cause for doing so (D [36(b)]);
are true.
The evidence demonstrates that the amount of publicity that has surrounded the police investigation of Mrs Rayney's death and the subsequent proceedings, both in relation to the murder charge and the telecommunications charges (the subject matter of which featured in the murder trial and was the subject of adverse comment by the trial judge), can clearly be described as exceptional. The experiences enumerated by the plaintiff involving gratuitous assertions of his guilt illustrate that a significant number of members of the public have formed strong adverse views of the plaintiff. There is no reason to assume that such views are limited to those who have chosen to communicate their view to the plaintiff. It is reasonable to proceed on the assumption that, given the extent of the publicity demonstrated by the evidence, the likelihood is that a significant section of the public will have formed firm views on the matters which are central to these proceedings.
It is not, in my view, an answer to demonstrate that there has also been publicity that might be considered favourable to the plaintiff. It may well be that a section of the public has formed a firm view as to the plaintiff's innocence. A fair trial requires, however, that decision‑makers bring to the process of adjudication an open mind, and put aside their personal prejudices or views. Juries are routinely directed to do so. At a general level, it can be assumed that a juror will accept such a direction and focus on the evidence at trial. It is more difficult, however, where a juror has previously formed a firm view on a matter which is a central issue in the trial. I am satisfied that it is likely that there is a significant section of the public who, by reason of the exceptional publicity, will have formed a view, adverse to the plaintiff or otherwise, in relation to the plaintiff's guilt. There is a significant risk that that view will colour, even subconsciously, the jury's approach to the questions it must answer.
I do not accept the defendant's contention that the fact that the events the subject of the charges against the plaintiff occurred some nine years ago renders less significant the extent of adverse publicity which the plaintiff has received. The trial itself was completed less than four years ago. The State's appeal against the judgment was completed less than three years ago. The plaintiff's acquittal on the telecommunications charges occurred 16 months ago. Since then, there have been proceedings in the State Administrative Tribunal between the plaintiff and the Legal Practice Board of Western Australia in relation to his fitness to practise law. All of those proceedings have received considerable publicity. The plaintiff's evidence is that such publicity has triggered gratuitous assertions of his guilt by members of the public. The ongoing publicity is likely to have kept the question of the plaintiff's involvement in the death of his wife in the minds of a significant portion of the public.
The defendant placed much reliance on the proposition that the question of someone's reputation is better determined by the collective verdict of a group of citizens rather than a judge sitting alone on the basis explained by Rares J in Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 [19]:
One of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. In Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505 ‑ 506 Brennan J, with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed said:
Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees ‑ Lord Selborne's reasonable men (Capital and Counties Bank v Henty (1882) LR 7 App Cas 741, at p 745) or Lord Atkin's right‑thinking members of society generally (Sim v Stretch (1936) 52 TLR 669, at p 671) or Lord Reid's ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd [1964] AC, at p 260)) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane [1937] 1 KB 818, at p 833), being a standard common to society generally (Miller v David (1874) LR 9 CP 118; Myroft v Sleight (1921) 90 LJKB 883; Tolley v J.S. Fry & Sons Ltd [1930] 1 KB 467, at p 479). (original emphasis)
The defendant referred to the explanation of the role of the jury in defamation proceedings given by McColl JA in Fierravanti‑Wells [69] ‑ [79]. Her Honour referred to various judicial observations as to the role of juries in defamation cases including that:
•juries are a time‑honoured and important part of the justice system, and have the collateral advantages of involving the public in the administration of justice and keeping the law in touch with community standards: Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 [7] (Gleeson CJ);
•the question whether someone's reputation has or has not been falsely discredited ought to be tried by other ordinary men and women: Sutcliffe v Pressdram Ltd [1991] 1 QB 153, 182 (Nourse LJ); and
•the opinion of a multi‑member jury may be safer and wiser than the opinion of a judge sitting alone: Bond Corporation Holdings Ltd v Australian Broadcasting Commission [1989] NSWCA 22; [1973‑96] A Def R 50‑050, 40‑325 (Kirby P).

The discussion by McColl JA was in the context of a decision which concerned the power of the judge under the relevant NSW legislation to dispense with the requirement for a jury of his own motion, rather than on application of a party. I accept that the rationale underlying the right to elect a jury trial is found in the considerations identified in McColl JA's analysis. It remains the case, however, that there exists an overriding discretion for the court to direct that the trial not proceed with a jury. Undoubtedly, in addition to the considerations under s 21(3) of the Defamation Act, the requirement for a fair trial, and the interests of justice, are central considerations in the exercise of that discretion. There is no presumption in the Defamation Act that trial by jury is the preferred mode of trial of defamation actions. The default position is that, absent an election, defamation trials are by judge alone.
In directing that the plaintiff's murder trial be conducted by a judge alone, Commissioner Sleight said in The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383:
However, in my opinion the real prejudice created by the police announcement was that it heightened the media's and the public's interest in the case and spurred speculation and debate in the community as to Mr Rayney's guilt over a sustained period. The period of time between the naming of Mr Rayney as the prime suspect and him being charged (a period of over three years) has meant that the prejudice created against Mr Rayney is likely to have become well entrenched.
The naming of Mr Rayney as the prime and only suspect also placed considerable pressure on Mr Rayney to respond in the media to defend his reputation and attempt to negative the prejudice against him. Mr Rayney's decision to respond via the media in part created more publicity and potentially heightened the prejudice against him.
The landscape of public opinion against Mr Rayney was further significantly affected by the police accusing Mr Rayney of not cooperating with police by denying police access to Mr Rayney's two daughters and stating publicly that in the opinion of investigating police Mrs Rayney was killed at her home.
The extent of public speculation about Mr Rayney is to some extent revealed by the internet material contained in the affidavit of Ms Timpano, although I acknowledge, as submitted by senior counsel for the State, that the material is only a snapshot of public opinion and possibly only represents the opinions of persons holding extreme views.
The question of prejudicial publicity is inevitably one of degree: TVM [33]. It is not necessary that the publicity be in the nature of the publicity of Arthurs' case for an applicant to be successful: TVM [29]. Having considered all the publicity material contained in the affidavit of Ms Timpano, I conclude in this matter that the extent and nature of the pre‑trial publicity has been exceptional. I conclude, that the pre‑trial publicity has created a community climate where there has been speculation about Mr Rayney's guilt and created an atmosphere of prejudice against Mr Rayney. There is a real potential that jurors will have formed strong pre‑conceived ideas about his guilt prior to trial. I take into account that Mr Rayney has this apprehension and the primary basis of his application is that there is a risk of an unfair trial. Although the courts in the past have placed great faith in juries to follow directions and put aside preconceived ideas or prejudice, in a case like this I believe that the best cure of the danger of such prejudice is to order a trial by judge alone [88] ‑ [92].
By reason of subsequent proceedings in which the plaintiff has been involved, prejudicial publicity has continued on a regular and frequent basis since that decision. I am satisfied that the potential of a prejudicial effect of the extensive publicity in relation to matters surrounding the subject matter of this action presents a significant risk to a fair trial. That risk is ameliorated by a direction that the matter not proceed before a jury.
I turn now to the plaintiff's arguments as to the complexity of issues for trial and the requirement for prolonged examination of records.

Complexity and examination of records

Putting aside questions of damages which do not fall within the province of a jury, the issues on the pleadings to be determined at trial are as follows:
(1)whether the words spoken on 20 September 2007 are to be heard and construed in the context of and together with the words spoken in the three previous press‑conferences (SC [4] ‑ [5], D [33] ‑ [34]);
(2)whether the words meant that the plaintiff murdered his wife (SC [6.1], D [35]);
(3)whether the subsequent articles and broadcasts constituted republications of the defamatory utterances (D [35(b)], [36(c)]);
(4)whether the words meant that the plaintiff so conducted himself as to give rise to a reasonable suspicion that he murdered his wife (SC [6.2], D [36(a)]);
(5)if the words did convey that meaning, whether they were true (D [36(a)], R [47.1]);
(6)whether the words meant that the police suspected the plaintiff of murdering his wife and had reasonable cause for doing so (D [36(b)], R [47.2]);
(7)if so, whether they were true (D [36(b)], R [47.2]);
(8)whether the words were spoken on the occasion of qualified privilege pursuant to s 30 of the Defamation Act (D [37], R [48]); and
(9)whether the words were spoken on an occasion of qualified privilege at common law (D [38], R [49]).
The first issue, whilst not without its complexity, would not of itself be a basis upon which I would be inclined to dispense with a jury. The same can be said in relation to issues 8 and 9 concerning qualified privilege. The Defamation Act clearly contemplates that juries will be entrusted with the task of construing the meanings of words and considering any defences which the law provides. There is nothing so complex about the context and construction of the words complained of, or in the application of the defences of qualified privilege, which would render this action inappropriate for consideration by a jury.
Issue 3 concerns republication of the allegedly defamatory utterances. In [8] of the statement of claim, the plaintiff pleads that the senior sergeant made the defamatory utterances in circumstances where he knew or intended that they would be republished in all forms of media, that he authorised the media in attendance at the media conference to republish his words, and that it was a natural and probable consequence of his publication that the words, or their gist, sense or substance, would be republished. The defendant sought further and better particulars of the various republications complained of. Those particulars were supplied, and comprise 141 newspaper articles, 100 internet news articles and 35 television news broadcasts.
The plaintiff submits that the jury would be required to consider whether those 276 republications capture the sense of the original publication. In response, the defendant contends that questions of republication are questions relating to the determination of damages, and therefore are outside the province of the jury by reason of s 22(3) of the Defamation Act. See Griffith v Australian Broadcasting Corporation [2003] NSWSC 298; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWSC 231 [144] ‑ [145]. In Habib, McColl JA appeared to endorse the proposition that the issues for the judge's determination in the context of considering damages for republication are not only whether the republication was a natural and probable consequence of the original publication, but also the meaning of the alleged republication. On that basis, the jury in this case would not be required to review and construe the meanings conveyed by a very large number of republications set out in the plaintiff's particulars. Issue 3 is not therefore a reason that a trial by jury should be dispensed with.
The other aspect of extensive documentary review which arises in these proceedings concerns the defendant's pleas of justification of the plaintiff's alternative imputation, namely that the plaintiff conducted himself in such a manner as to give rise to a reasonable suspicion that he murdered his wife (conduct imputation) (SC [6.2]), and the defendant's pleaded imputation that the police suspected the plaintiff of having murdered or unlawfully killed his wife and had reasonable cause for doing so (suspicion imputation) (D [36(b)]). Those allegations of truth are the subject of extensive particulars. The particulars of conduct run to 48 paragraphs concerning the plaintiff's relationship with his wife, and things said to have been done by him which are said to give rise to a reasonable suspicion (conduct particulars).
The particulars as to the suspicion of the police on reasonable ground (suspicion particulars) assert that all but one of the 46 conduct particulars had come to the attention of the police, and also particularise evidence which had been gathered by the police which is set out in [12A] of the schedule to the defence. Paragraph 12A of the schedule enumerates 90 witness statements; 7 items of physical evidence; 12 other documentary evidence items comprising films, logs of exhibits and bundles of photographs; and 24 items of internal police records comprising running sheets and 'red books' of a significant number of police officers.
In order to determine whether the particularised material provided a reasonable basis for the police to hold the suspicion pleaded, it would be necessary for the jury to review all of that material. The suggestion, made in oral submissions by the defendant, that it would be sufficient for a selection of the material to be considered by the jury is not one I accept. The question for determination will be whether, objectively viewed, and having regard to whatever submissions might be made as to the reliability of any of the material available to the police, it was capable of founding a reasonable suspicion of the plaintiff's guilt. That involves an examination not only of the material which might implicate the plaintiff and the reliability of that information, but also consideration of material which might be neutral or exculpatory. It can be reasonably expected that submissions will be made as to the reliability of the materials relied upon by the defendant which the jury would be required to consider and evaluate. That may include considerations as to the admissibility of statements contained in witness statements or other evidence referred to in the particulars.
There is an issue between the parties as to whether or not, in order to prove the truth of the conduct imputation, the defendant can rely on witness statements gathered by the police (being those listed in the suspicion particulars) as proof of the facts asserted in those witness statements pursuant to s 79C of the Evidence Act 1906 (WA). That is an issue yet to be determined. If, however, as the plaintiff contends, the witness statements are not admissible for that purpose, the jury would be required to separate the use of the witness statements as proof of the suspicion imputation, from any use of those statements for the purposes of the conduct imputation. Although it is not uncommon for juries to be directed as to the limited use that can be made of particular evidence, the extensive nature of the evidence undoubtedly leads to additional complexity in the matter.
In the circumstances, I consider that the extent of documentary evidence which will necessarily be the subject of examination at trial militates against the trial being conducted before a jury, either because it involves a prolonged examination of records, or because the issue of the truth of the alternative imputations cannot, because of the extent and complexity of consideration of documents, be conveniently considered and resolved by a jury.

Conclusion

It follows that I am of the view that there should be an order that the action not be tried by a jury. There will be an order accordingly.