Rayney v The State of Western Australia [No 9] - [2017] WASC 367

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 9] [2017] WASC 367

CORAM: CHANEY J

HEARD: 1-31 MARCH, 311, 1921, 2628 APRIL, 8, 9, 12, 16 MAY, & 1719, 2428 JULY 2017

DELIVERED : 15 DECEMBER 2017

FILE NO/S: CIV 2177 of 2008

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

Catchwords:

Defamation - Press conference by police - Meaning of words used - Alternative imputations - Imputations of guilt or suspicion of guilt - Qualified privilege - Whether occasion of qualified privilege - Whether conduct of defendant reasonable - Whether imputations true - Conduct rule

Damages - Non-economic loss - Purpose served by noneconomic damages for defamation - Proper construction of Defamation Act 2005 (WA), s 35 - Cap on damages - Aggravated damages - Causation - Mitigation - Damages or compensation received in other proceedings

Damages - Economic loss - Causation - Intervening events causing loss - Break in chain of causation

Legislation:

Defamation Act 2005 (WA), s 30, s 35, s 38

Result:

Judgment for the plaintiff

Category: A

Representation:

Counsel:

Plaintiff: Mr M L Bennett & Mr J D MacLaurin
Defendant: Mr T K Tobin QC, Ms R Young & Ms K A T Pedersen

Solicitors:

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

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

Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79
Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Beamish v The Queen [2005] WASCA 62
Browne v Dunn (1894) 6 R 67
Burrows v Knightley (1987) 10 NSWLR 651
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1Qd R 89
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v S, DJ [2007] SASC 117
Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772
Costello & Abbott v Random House Australia Pty Ltd (1999) 137 ACTR 1
Cripps v Vakras [2014] VSC 279
Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] 4 All ER 913
Forrest v Askew [2007] WASC 161
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
Harding v Essey [2005] WASCA 30; (2005) 30 WAR 1
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Legal Profession Complaints Committee v Rayney [2017] WASCA 78
Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151
Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104; (2014) 43 VR 348
Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254
Mallard v The Queen (2005) 224 CLR 125
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McManus v Beckham [2002] 1 WLR 2982; [2002] EWCA Civ 939
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Morosi v Mirror Newspapers [1977] 2 NSWLR 749
Musa King v Telegraph Group Ltd [2003] EWHC 1312 (QB)
Nationwide News Ltd v Weise (1990) 4 WAR 263
Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116
Ratcliffe v Evans (1892) 2 QB 524
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Rayney v Reynolds [2016] WASC 219
Rayney v Reynolds [No 2] [2016] WASC 254
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202
Sands v State of South Australia [2013] SASC 44
Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195
Selecta Homes & Building Co Pty Ltd v Advertiser‑News Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451
Shah v Standard Chartered Bank [1999] QB 241; [1998] 4 All ER 155
Sims v Wran [1984] 1 NSWLR 317
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Speight v Gosnay (1891) 60 LJ QB 231; (1891) 51 JP 501
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Triggell v Pheeney (1951) 82 CLR 497
Truth (NZ) Ltd v Holloway [1961] NZLR 22; [1960] 1 WLR 997
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697

Table of Contents

Summary of decision

Introduction

Background
Operation Dargan
Significant events in Operation Dargan
The words spoken
Determination of the meaning of the words used
Imputations of suspicion and guilt
Context of the 20 September 2007 press conference
Should the words used on 20 September 2007 be construed in context of earlier press statements?
The meaning of the words
Qualified privilege under the Defamation Act

Interest or apparent interest of the recipient in having information on some subject
Publication of defamatory matter in the course of giving information on the subject

Reasonableness

Qualified privilege at common law
Conduct imputation and suspicion imputation

Particulars of the truth of the conduct and suspicion imputations
The 'conduct rule'
The pleading issue

Evidentiary issues

Reliability of witness statements
Passage of time
Temporal limitations on evidence
Section 79C

The plaintiff's credibility

The pretext calls on 20 September 2007
Explanation for seeking Mr Pearson's assistance
Placing of bets at Centrebet
Evidence in the Magistrates Court
Evidence about recording played to Mr Carr
Internal inconsistencies
The plaintiff's conduct of the case to denigrate others
Conclusion on Mr Rayney's credibility

Evidence of friends and family of Corryn Rayney
Evidence of police witnesses
Circumstances in which conduct should be assessed

The plaintiff's relationship with Mrs Rayney (Defence [36(i), (ii), (iv), (v)] Reply [47A.1], [47A.2], [47A.4], [47A.5])
Hiding amounts and sources of income (Defence [36(iii)] Reply [47A.3])
The plaintiff's concern of the effect of divorce on his and his family's reputation (Defence [36(vi)] Reply [47A.6])
The plaintiff's gambling (Defence [36(vii)(A)] Reply [47A.7])
Unfaithfulness (Defence [36(vii)(B)] Reply [47A.9])
The email of 13 July 2007 (Defence [36(viia)] Reply [47A.8])
Fear that Mrs Rayney would make public Mr Rayney's gambling, his unfaithfulness and the insinuation (Defence [36(ix), (ixa)] Reply [47A.10], [47A.11])
Disclosure of plaintiff's income (Defence [36(x), (xi), (xii)] Reply [47A.12], [47A.14], [47A.15])
Meeting between the plaintiff and Mrs Rayney planned for 9.30 pm on 7 August 2007 (Defence [36(xiii)] Reply [47A.16])
Mrs Rayney leaving the boot scooting class (Defence [36(xiv), (xv)] Reply [47A.17], [47A.18], [47B.13], [47B.39])
Manner of disposal of Mrs Rayney's body (Defence [36(xvi)] Reply [47A.19])
Timing of Mrs Rayney's burial and location of Mrs Rayney's car (Defence [36(xvia), (xxib), (xxic), (xxid)] Reply [47A.20], [47A.21], [47A.22], [47A.23])
Access to a digging implement (Defence [36(xvii)] Reply [47A.24])
Absence of reports of suspicious behaviour in the area of the Rayney residence on the night of 7 - 8 August 2007 (Defence [36(xviii)] Reply [47A.25])
The plaintiff's statement to police on 8 August 2007 (Defence [36(xix)] Reply [47A.26])
Investigations as to the most likely place that Mrs Rayney met with foul play (Defence [36(xx)] Reply [47A.27])
The occupants of the Rayney residence (Defence [36(xxa)] Reply [47A.28])
Mrs Rayney's missing passport (Defence [36(xxb)] Reply [47A.29])
Place card with plaintiff's name on it (Defence [36(xxi)] Reply [47A.30])
The plaintiff's experience as a lawyer (Defence [36(xxii)] Reply [47A.31])
Expectation that an innocent person would extend the fullest possible cooperation to a police investigation (Defence [36(xxiii)] [Reply [47A.32])
Media conference of 12 August 2007 (Defence [36(xxiv)] Reply [47A.33])
Informant allegation (Defence [36(xxiva)] Reply [47A.34])

The conduct allegations

Attendance by plaintiff at function at Bluewater Grill (Defence [36(xxivaa)] Reply [47A.35])
The plaintiff's reaction to Mrs Rayney's statement to their daughter's classroom teacher (Defence [36(xxivb)] Reply [47A.36])
Arrangements in relation to listening device (Defence [36(xxv), (xxvi), (xxvii), (xxviii), (xxix), (xxx), (xxxa), (xxxi), (xxxii)] Reply [47A.37], [47A.38], [47A.39], [47A.40], [47A.41], [47A.42], [47A.43], [47A.44], [47A.45])
Recording of conversations with dictaphone (Defence [36(xxxiii)] Reply [47A.46])
Plaintiff's instruction to Mr Pearson (Defence [36(xxxiv)] Reply [47A.47])
The plaintiff's use of the landline at the Rayney residence while listening device was in place (Defence [36(xxxv)] Reply [47A.48])
Delay in making enquiries about Mrs Rayney's whereabouts when she failed to attend the meeting on 7 August 2007 (Defence [36(xxxvi)] Reply [47A.49])
The plaintiff's enquiries as to his wife's whereabouts on 8 August 2007 (Defence [36(xxxvii)] Reply [47A.50])
Inconsistent statements about Mrs Rayney's failure to return home after boot scooting (Defence [36(xxxviii)] Reply [47A.51])
Statements to Sharon and Rohan Coutinho by the plaintiff on 8 August 2007 (Defence [36(xxxviiia)] Reply [47A.52])
Failure to mention acrimonious separation when making statement to police (Defence [36(xxxix)] Reply [47A.53])
Response to DS Robinson's question concerning alarm system (Defence [36(xl)] Reply [47A.54])
Identification of possible enemies or persons who may have a grudge against him (Defence [36(xla)] Reply [47A.55])
Plaintiff's insistence on his sister being present (Defence [36(xli)] Reply [47A.56])
Plaintiff's intervention of interview with his daughter Sarah (Defence [36(xlii)] Reply [47A.57])
Constraints on children's communications with others (Defence [36(xliii)] Reply [47A.58])

Refusal to permit children to be interviewed by police
Refusal to permit children to see members of Mrs Rayney's family without his supervision
Instruction to staff members at children's school
Refusal to permit children to see counsellors

Mowing the lawn on 11 ‑ 12 August 2007 (Defence [36(xliiia)] Reply [47A.59])

Plaintiff's response to Ms Porter when told of a camera at Ms Porter's front door (Defence [36(xliiib)] Reply [47A.60])
Cancellation of appointments with police (Defence [36(xliv)] Reply [47A.61])
Failure to respond to demands by police officers executing search warrant on 20 September 2007 (Defence [36(xlv)] Reply [47A.62])
Level of cooperation with police officers during interview at Curtin House on 20 September 2007 (Defence [36(xlvi)] Reply [47A.63])

Summary of findings on circumstances and conduct

Particulars capable of contributing to suspicion

Relationship between Mr and Mrs Rayney
Suggestion that offence occurred at the Rayney residence
The significance of the Liquidambar pods
Lack of cooperation

Relevant background facts

The location of the coat on Mrs Rayney’s bed and her wallet in her car
Occupants of the Rayney residence
Finding of the place card and Mr Rayney’s attendance at the Bluewater Grill
Arranging for listening device and listening to call
Plaintiff’s instruction to Mr Pearson

Equivocal particulars

Absence of reports of suspicious behaviour
Other reported sightings
The location of Mrs Rayney’s car
Missing passport
Plaintiff's experience as a lawyer
Lack of enquiries as to Mrs Rayney's whereabouts on 7 August 2007
Plaintiff’s enquiries as to Mrs Rayney's whereabouts on 8 August 2007

Particulars inconsistent with involvement

Opportunity
Access to a digging implement

Particulars relied on by the defendant that are not established

Circumstances and conduct relied upon by the plaintiff
Conclusion as to truth of the conduct imputation and the suspicion imputation

Damages

Republication

Damages for non‑economic loss
Application for cap on damages for non‑economic loss
The effect of the defamation

Vindication

Causation
Aggravated damages
Adverse findings in these proceedings
Plaintiff's conduct in these proceedings
The amount of non‑economic loss
Set‑off for damages received in other proceedings
Damages for economic loss

Mr Rayney's evidence in relation to his income since September 2007
Economic loss after 10 February 2016
Fees written off
Loss of income from 20 September 2007 to December 2010

Conclusion
Annexure A
Annexure B
Annexure C

CHANEY J:

Summary of decision

The plaintiff, Mr Lloyd Patrick Rayney, claimed damages for defamation arising from a series of media conferences conducted by Detective Senior Sergeant Jack Lee during the course of an investigation into the murder of the plaintiff's wife, Mrs Corryn Rayney. The plaintiff claimed that the words used by DSS Lee in four media conferences conducted by him, or alternatively the words spoken at the last of the four conferences on 20 September 2007, bore the imputation that the plaintiff had murdered his wife. In the alternative, the plaintiff pleaded that the words meant that the plaintiff had so conducted himself as to give rise to a reasonable suspicion that he had murdered his wife.
The defendant, the State of Western Australia, denied that the words used bore either of the meanings pleaded by the plaintiff. It contended, however, that if the words did bear the plaintiff's alternative meaning, they were true. The defendant pleaded that the words used by DSS Lee bore a different meaning being that the police suspected the plaintiff of having murdered or unlawfully killed his wife and had reasonable cause for so suspecting, and that that imputation was true. The defendant also contended that if, contrary to its denial, the words did bear either of the meanings pleaded by the plaintiff, then they were uttered on an occasion which attracted the defence of qualified privilege, either under the Defamation Act 2005 (WA) or at common law.
For the reasons set out, I have reached the following conclusions:
•That the words used by DSS Lee on 20 September 2007 stand alone as a separate publication, and should be construed on their own.
•That the words used by DSS Lee on 20 September 2007, in their entirety, bore the imputation that the plaintiff murdered his wife. The defendant did not assert that that imputation was true.
•That the defence of qualified privilege, either under the Defamation Act or at common law, is not available to the defendant in the circumstances of the defamatory publication by DSS Lee.
•That it follows that the plaintiff is entitled to be awarded damages for the defamation.
I have also concluded that the publication was attended by circumstances of aggravation which make the statutory cap on damages for non‑economic loss inapplicable. In those circumstances, I have determined that the damages for non‑economic loss, which are designed to compensate the plaintiff for the damage to his personal and business reputation, personal hurt and distress caused by the defamation and vindication of the plaintiff's reputation, should be assessed at $600,000.
In relation to damages for economic loss, to which the plaintiff is also entitled, I have concluded that the defamatory statements made by DSS Lee caused the plaintiff to suffer economic loss by way of loss of income for the period from the date of the defamation until the date of his arrest and charge with murder on 8 December 2010. I have concluded that thereafter the defamatory statements ceased to be a cause of economic loss and will not be a cause of loss in the future. Rather, the damage to the plaintiff's practice from that date onwards is attributable entirely to other causes. I have resolved the points of difference between the expert witnesses called by each party for the purpose of quantifying the plaintiff's losses, and propose that quantification of the amount of the plaintiff's economic loss be undertaken having regard to the findings made in these reasons following conferral between the parties and their experts.
In light of the conclusions I have reached as to the meaning of the words, any question of the truth of the imputations, with which most of the very long trial was concerned, has no bearing on the outcome. I have, however, reviewed all of the evidence and made findings in relation to those matters for the sake of completeness. Had it been necessary to determine those matters, I would have concluded that, in the circumstances known to the Western Australian Police as at 20 September 2007, and in light of the plaintiff's conduct then and subsequently known, it cannot be said that there were reasonable grounds to suspect that the plaintiff murdered his wife or that he had so conducted himself as to give rise to that suspicion. Rather, those matters gave rise to no more than a basis, which clearly did exist, for police to continue, as part of their wider investigation, to investigate whether the plaintiff may have had any involvement in his wife's death.

Introduction

On 7 August 2007, Mrs Corryn Rayney, then a registrar of the Supreme Court of Western Australia, went missing after attending a boot scooting class in Bentley, a suburb of Perth. Nine days later, on 16 August 2007, her body was found buried off a bush track in Kings Park. She had been murdered. From the time of her disappearance, the police carried out extensive investigations in what was referred to as 'Operation Dargan'. DSS Lee was the officer in charge and was designated as the police media liaison officer in relation to the investigation.[1]
[1] Since the relevant events happened when he held that office, I will refer to him in these reasons as DSS Lee notwithstanding that he has now been promoted to the rank of Inspector. I will also refer to other police officers using the following abbreviations: DSS - Detective Senior Sergeant; DS - Detective Sergeant; DSC - Detective Senior Constable; DC - Detective Constable; SC - Senior Constable; DI - Detective Inspector.
A number of media conferences were conducted by DSS Lee in relation to the investigation. In particular, conferences were conducted by him, or at least media statements made, on 16 August 2007, 22 August 2007, 29 August 2007 and 20 September 2007.
The plaintiff, Lloyd Patrick Rayney, was the husband of the late Mrs Rayney. At the media conference on 20 September 2007, DSS Lee said that the police believed that Mrs Rayney had been killed at her home in Monash Avenue, Como, and that Mr Rayney was a suspect in the matter. When asked whether he was the prime suspect, DSS Lee responded that 'he's our only suspect at this time' and that 'he is the primary person of interest or, or the suspect'.
The plaintiff claims that the words spoken by DSS Lee to representatives of the media on 20 September 2007, construed in the context of words previously spoken by DSS Lee to the media on 16 August 2007, 22 August 2007 and 29 August 2007 (oral utterance), or alternatively the words spoken by DSS Lee on 20 September 2007, taken alone (alternative utterance), conveyed the defamatory imputation that the plaintiff murdered or unlawfully killed his wife (guilt imputation), or alternatively that he so conducted himself as to give rise to a reasonable suspicion that he murdered or unlawfully killed his wife (conduct imputation).
In December 2010, more than three years after DSS Lee described the plaintiff as the prime and only suspect, the plaintiff was charged by the police with the murder of his wife. After a lengthy trial which took place in 2012 over a period of four months, before Brian Martin AJ[2] sitting alone without a jury, Mr Rayney was acquitted of the charge. The State appeal in relation to that verdict was dismissed in September 2013.
[2] Brian Martin AJ was a former Chief Justice of the Northern Territory and was commissioned to hear the murder trial in view of Mrs Rayney's connection to the Court. Brian Martin AJ is not to be confused with Martin CJ, the Chief Justice of Western Australia, who is mentioned at times in these reasons.

Prior to September 2007, Mr Rayney conducted a successful practice as a barrister, having previously held senior positions in the Office of the Australian Government Solicitor (AGS) and the Office of the Director of Public Prosecutions (ODPP) for Western Australia and, for a period, in Bermuda. It is apparent that the events which occurred subsequent to Mrs Rayney's murder resulted in significant damage to Mr Rayney's legal practice. He attributes the oral utterance, or the alternative utterance, as a cause of the damage to his practice and the substantial financial losses which have flowed from it. He seeks to recover those losses, together with general and aggravated damages for destruction of his reputation and hurt caused by the utterances from the defendant, the State of Western Australia, on the basis that it is liable pursuant to s 137(5) of the Police Act 1892 (WA) for the publication by DSS Lee, the publication not having been made with corruption or malice.
The defendant denies that the oral utterance, or the alternative utterance, bear the defamatory imputations asserted by the plaintiff; it pleads that if, contrary to its denial, the words conveyed the conduct imputation, then they were substantially true. In the alternative, the defendant pleads that each of the oral utterance and the alternative utterance conveys the imputation that the police suspected the plaintiff of having murdered or unlawfully killed his wife and had reasonable cause for so suspecting (suspicion imputation), and that imputation was true. It does not contend that the guilt imputation was true. The defendant also pleads a defence that the words are protected by statutory qualified privilege under s 30 of the Defamation Act 2005 (WA) or by qualified privilege at common law.

Background

Mr and Mrs Rayney met in 1986. At that time, Mr Rayney was working as a solicitor at the AGS and Mrs Rayney was an articled clerk. They commenced a relationship in 1987 and were married in March 1990. In 1992, they purchased their home at 6 Monash Avenue, Como, in which they were still living at the time of her death. Their first child, Caitlyn Grace Rayney was born in March 1994. Their second daughter, Sarah Grace Rayney was born in February 1997. Both children attended Penrhos College, which is located not far from the Rayney residence.
Mr Rayney left the employment of the AGS in 1988, and commenced employment with the Commonwealth ODPP where he worked until 1989. He then commenced work at the Crown Solicitor's Office in Perth where he predominantly practiced in the area of criminal law, appearing as counsel in criminal trials and also before various boards and tribunals. He was promoted at the Crown Solicitor's Office to the position of senior prosecutor.
From 1992 to 2003, and then again in 2004 to 2005, Mr Rayney was employed at the ODPP in Perth. He prosecuted a number of matters involving serious and complex trials and appeals. From 1998 to 2002, he was second in charge to the Director of Public Prosecutions (DPP).
While working for the ODPP in 2002, an opportunity arose for Mr Rayney to apply for the position of senior crown prosecutor at the ODPP in Bermuda. He applied for that position and was successful, commencing work at the ODPP in Bermuda in April 2003.
Mr Rayney said that, before applying for the position, he discussed with his wife whether he should apply and they agreed that he should. By that time, Mrs Rayney had commenced employment at the Supreme Court of Western Australia as an acting registrar. Mr Rayney said that the plan was that she would take leave without pay and join Mr Rayney with their daughters in Bermuda. To that end, he said that Mrs Rayney and his daughters visited him in Bermuda and holidayed with him on four occasions. On the first occasion in 2003, Mr Rayney said that they looked at schools for the children and completed applications for them to attend a private girls' school, paying the admission and enrolment fees. Mrs Rayney sat for, and obtained, her Bermudan driver's licence. Mr Rayney's contract with the ODPP in Bermuda was for three years, but he left after about 16 months. He said that the reason for his early return was that Mrs Rayney was unable to obtain leave without pay from the Supreme Court because she was not permanently employed and because he was missing his family 'terribly'.
It is apparent that before Mr Rayney travelled to Bermuda there had been tensions in his relationship with Mrs Rayney as a result of Mr Rayney's gambling habits. Those, and other, tensions were the subject of a number of emails passing between Mr and Mrs Rayney in late 2003. It is apparent from those emails that there were stressors in the marriage. One of those emails generally supports Mr Rayney's account of the plans associated with his move to Bermuda and the reason that those plans did not come to fruition. In particular, on 8 October 2003, Mrs Rayney emailed Mr Rayney making clear that her 'work is clearly the determining factor', and was the cause of her reluctance to move to Bermuda.[3]
[3] DST0090, page 207.
Mr Rayney returned to work at the ODPP in Perth in August 2004. Mrs Rayney continued to work as a registrar and subsequently her position at the Supreme Court was made permanent.
Mr Rayney moved to practice as a barrister at the independent bar in June 2005. That move was made after considerable discussion between Mr and Mrs Rayney; Mr Rayney suggesting that his wife was concerned at the risk of a reduction in his income if he was to move to the bar. Mrs Rayney's attitude on that matter changed when Mr Rayney told her that Ms Gina Rinehart, a prominent businesswoman, wanted Mr Rayney to do legal work for her in relation to three litigation matters in which Ms Rinehart, or her company Hancock Prospecting Pty Ltd, was involved. Mr Rayney's practice at the independent bar was successful and profitable up until September 2007.
It is apparent that in the early months of 2007, significant tensions arose in Mr and Mrs Rayney's relationship. That is a topic dealt with in more detail later in these reasons. In light of that deteriorating relationship, both Mr and Mrs Rayney consulted family law practitioners. In the context of that deteriorating relationship, Mr Rayney took steps to record certain of Mrs Rayney's conversations. The first time Mr Rayney attempted to record his own conversations with his wife was around April 2007 when he used a portable dictaphone to do so. Those substantially unsuccessful attempts were abandoned not long after they commenced. Later in late July or early August 2007, Mr Rayney engaged the services of a Mr Timothy Pearson to install a recording device on Mr and Mrs Rayney's home phone line. Those are topics dealt with in more detail later in these reasons.
As previously noted, Mrs Rayney went missing on the evening of 7 August 2007 after leaving a boot scooting class in Bentley. At that time, Mr Rayney was in the course of representing Superintendent Brandham in proceedings before the Corruption and Crime Commission (CCC) relating to the conduct of the police enquiry in relation to Mr Andrew Mallard. Mr Mallard's conviction for murder had been overturned by the High Court,[4] which had ordered a retrial that was ultimately not pursued by the DPP. The enquiry by the CCC examined the conduct of the police and a State prosecutor in relation to the investigation and trial of Mr Mallard at first instance. During a morning break at the CCC hearing, Mr Rayney received a phone call from his secretary who advised him that she had received a phone call from the Supreme Court advising that Mrs Rayney had not arrived at work that day. Mr Rayney then called the number he had been given, and called Mrs Rayney's family members to enquire whether they knew of her whereabouts. Following the phone calls, Mr Rayney explained what was happening to Superintendent John Brandham, and told him that he wished to go to Mrs Rayney's office. Superintendent Brandham agreed, offering his assistance if required. After arranging for his apologies to be conveyed to the Commissioner, Mr Rayney went to the Supreme Court where he spoke to staff. He said that he told them that he did not see Mrs Rayney come home the previous evening, and presumed that she had gone to work before he got up. Mr Rayney's sister, Ms Raelene Johnston, joined him at the court and they made a number of phone calls to hospitals in case Mrs Rayney had been involved in an accident. They also made phone calls to her family and friends, but no one was able to identify where she was.
[4] Mallard v The Queen (2005) 224 CLR 125.
Mr Rayney said that he was offered the opportunity by one of the court staff to read her work diary, but he declined to do so on the basis that he expected that, by virtue of her position, there would be confidential material which he ought not view.
Mr Rayney said that at some point, he asked Mrs Rayney's staff if they had looked at her emails to see if that would assist in locating her. He was told that they had not looked at the emails because of a password lock, but that the password could be unlocked if permission were obtained from the Chief Justice. Mr Rayney offered to see the Chief Justice for that purpose, which he did. By this time Superintendent Brandham had come to the court to offer assistance. The Chief Justice gave permission for the court's information technology staff to unlock Mrs Rayney's computer so that police could have access to her emails. Mr Rayney said that he told Superintendent Brandham, who was to look at the emails, that the emails would be embarrassing to Mr Rayney because of the numerous accusations which his wife had made against him in email communications from her place of work.

Operation Dargan

Operation Dargan was the responsibility of the Major Crime Squad (MCS) of the WA Police. Superintendent Jeff Byleveld was the officer in charge of the Major Crime Division. The officer in charge of the MCS was DSS Lee. The senior investigating officer (SIO) of Operation Dargan was DS Carlos Correia. He filled that role from 10 August 2007 until Mr Rayney's criminal trial commenced in July 2012.
The MCS consisted, in August 2007, of three investigation teams, and in addition included the Missing Persons Unit which, at the time, was headed up by DS Robinson.
DS Correia said that the structure of the team developed over time and subsequent to 10 August 2007, but in the early weeks of the investigation, the operation team developed as follows:
•DS Robinson was initially media liaison officer and later he became the office manager whose task was to assist DS Correia and oversee quality control of statements, actions and running sheets;
•DS Moore was appointed as forensic liaison officer;
•DS McKenzie was the family liaison officer for Operation Dargan and was assisted by DC Tan who was attached to the Kensington Detectives Office;
•DI Prins was the operations manager for all jobs at the MCS, including Operation Dargan. In that capacity he was responsible for allocating resources, strategic planning and consulting with the police hierarchy as necessary for resourcing issues. He was the relieving officer for DSS Lee and could provide advice on 'going forward in the operations';
•DSC Casilli was the pathology liaison officer and special projects officer. Special projects involved liaising with and making requests of the covert team. He was chosen for that role as he was experienced in special projects; and
•DSC Williams assisted as forensic liaison officer with the forensic team to examine Mrs Rayney's vehicle after it was located.
During the course of Operation Dargan, the number of officers assigned to the operation changed and at one point the team had about 30 officers, including unsworn police officers, although not all worked full‑time on Operation Dargan.
DSS Lee explained his role in Operation Dargan as being kept informed of progress by DS Correia, DS Robinson, DS McKenzie and others as to the progress of the investigation, discussing strategy and providing advice and direction. He said that he needed to be well‑informed about investigations being run by the MCS so that he could ensure adequate resourcing and professional handling of the investigation in accordance with guidelines and to enable him to provide briefings to executive management such as the Assistant Commissioner of Crime and others within the Western Australian Police as required.
DSS Lee explained that in MCS, briefings for the investigation team typically took place each morning and afternoon. At those briefings, investigators were provided with updates regarding their particular lines of enquiry. Briefings would include updates obtained by investigators from other persons such as forensic scientists, pathologists, chemists, botanists and senior DPP prosecutors, and would examine investigative materials that had been obtained.
It is clear that the various officers referred to above who were involved in the investigation of Operation Dargan generally attended those briefing sessions and shared information they had obtained as a result of their investigations.
Each of the officers involved maintained records of their investigations. Those records comprised notebooks, referred to as 'red books'; an official police diary which usually contained little more than a general reference to a day's activities; and running sheets which were subsequently loaded onto the database known as 'VIPER'. The contemporaneous notes from a red book would be used to formulate running sheet entries or uploaded to VIPER directly. Running sheets provided a record of tasks and enquiries relevant to an investigation and were entered onto the VIPER system and linked to particular actions.[5]
[5] Witness statement Ian Moore, exhibit 38 [78] ‑ [80].
VIPER is the case management system utilised by the WA Police, including the MCS, for all major investigations. Every investigative task receives an individual VIPER 'action number'. Access to individual investigations within VIPER is restricted to officers who have involvement with the particular investigation and who are generally approved by the investigation's SIO. All matters relating to an investigative task were recorded on VIPER against the particular action number as either 'items' or 'attachments', which could then be accessed through the individual VIPER action. It was also possible to link electronic records and other documentation to individual VIPER action numbers.[6]
[6] Witness statement Ian Moore, exhibit 38 [82] ‑ [85].

Significant events in Operation Dargan

According to Mr Rayney (and I accept), between the period from 8 August 2007 until Mrs Rayney's body was found, police attended the Rayney residence every day, and were made welcome by him. Usually it was DC Tan and DS McKenzie who attended.
Statements were obtained by police on 7 August 2007 from Mr Rayney, his daughter Caitlyn, Ms Sharon Coutinho and various friends of the Rayneys, including Ms Cheryl Gay, Mr Glen Dale, Ms Shana Russell, Mr John Tinker, Ms Janine Gillett and Ms Julie Porter. On 9 August 2007 a statement was obtained from Sarah Rayney, Mr Da Silva (Mrs Rayney's father), a friend of Mrs Rayney's, Mr Ervin Vukelic, and Ms Narelle Morris, a Supreme Court employee.
Over the following days, a number of statements were obtained from other persons.
Mrs Rayney's car was located in Kershaw Street, Subiaco, on 14 August 2007, and her body was located the following day buried off a bush track in Kings Park. A DNA test confirmed that the body was that of Mrs Rayney. A preliminary post‑mortem examination was carried out later that day and a full post‑mortem autopsy was conducted on 17 August 2007.
On 22 August 2007, police executed a search warrant at the Rayney residence and DSS Lee addressed a media conference outside that property. Mr Rayney claimed legal and professional privilege in relation to certain documents seized during that search and on 24 August 2007 an application was made to the Perth Magistrates Court to determine that claim.
On 27 August 2007, the police obtained a warrant to intercept Mr Rayney's home phone and his mobile phone.
On 29 August 2007, as a result of information which had been obtained during the course of the police investigation, the police executed a search warrant on the home of Mr Pearson in relation to matters which are dealt with in more detail later in these reasons.
Mrs Rayney's funeral was held on 1 September 2007.
On 20 September 2007, a second search warrant for the Rayney residence was executed by police. The circumstances of the execution of that warrant are also dealt with in more detail later in these reasons. On that day, Mr Rayney accompanied DS Gregor Hart and DS Craig Carter to Curtin House where he was interviewed, but exercised his right to silence. He was subsequently charged with one count pursuant to s 5(1)(a) of the Surveillance Devices Act 1998 (WA) and released on bail from Curtin House. It was later that afternoon that DSS Lee held the press conference in respect of which these proceedings are focused.
A further claim for legal professional privilege in relation to documents seized during the second search was made by Mr Rayney on 24 September 2007.
On 22 October 2007, police substituted the original charge under s 5(1)(a) of the Surveillance Devices Act with a charge under s 7(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth).

The words spoken

There is no issue in these proceedings as to the words spoken by DSS Lee at any of the four media conferences. The words spoken by DSS Lee on 16, 22 and 29 August 2007 are set out in annexure A to these reasons. The words spoken on 20 September 2007 were as follows:
INSPECTOR HATCH: 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: 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 misled 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.

Determination of the meaning of the words used

As noted at the outset of these reasons, the parties between them put forward three different imputations which they say the words were capable of carrying. The plaintiff puts forward two alternative meanings. His primary position is that the words conveyed the guilt imputation. Alternatively, he contends that the words conveyed the conduct imputation.
The defendant denies that the words used by DSS Lee were capable of bearing either of the meanings contended for by the plaintiff, but pleads, and then seeks to justify, the suspicion imputation. The defendant also pleads that if, contrary to its denial, the words bore the conduct imputation, then that imputation is true.
In the absence of a jury, it falls to the judge to determine the ordinary and natural meaning of the words. At common law, there can be only one innuendo meaning.[7]
[7] Slim v Daily Telegraph Ltd [1968] 2 QB 157, 172 (Diplock LJ); Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 506 (Brennan J) (Gibbs CJ, Stephen, Murphy & Wilson JJ agreeing).
The meaning of the words is to be ascertained by the sense in which fair‑minded ordinary reasonable members of the general community would understand the published words. In Lewis v Daily Telegraph Ltd,[8] Lord Reid said:
The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.
[8] Lewis v Daily Telegraph Ltd [1964] AC 234, 258; [1963] 2 All ER 151, 154.
Referring to Morgan v Odhams Press Ltd,[9] McHugh J in John Fairfax Publications Pty Ltd v Rivkin[10] said:
A reader may be acting reasonably even though he or she engages in 'a certain amount of loose thinking'.
[9] Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245.
[10] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [25]; (2003) 77 ALJR 1657, 1661.
This is because, as Lord Reid also pointed out:
The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.
In John Fairfax Publications Pty Ltd v Rivkin, McHugh J speaking in relation to written publications said:[11]
However, although a reasonable reader may engage in some loose thinking, he or she is not a person 'avid for scandal'. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together'. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. (footnotes omitted)
[11] John Fairfax Publications Pty Ltd v Rivkin [26].
The mode and manner of publication is material to consideration of the meaning of the words. As Tobias JA (with whom Sheller JA and Young CJ agreed) said in Griffith v John Fairfax Publications Pty Ltd:[12]
The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader.
[12] Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 [19].
That observation is apposite to the context of statements made at press conferences where there is an expectation of republication in the form of short 'grabs' that reduce the likelihood of analytical care in construing the whole of the words used.
The meaning of the words is not determined by evidence from the plaintiff as to what he understood the words to mean, nor of the defendant as to what the defendant intended the words to mean. The meaning is to be determined by an assessment of the ordinary reasonable person's understanding of the words.
The ordinary reasonable person does not interpret the publication in a precise manner, but rather forms a general impression of the meaning from the words used.[13]
[13] Lewis v Daily Telegraph (285).
In Favell v Queensland Newspapers Pty Ltd[14] in their joint judgment, Gleeson CJ, McHugh, Gummow and Heydon JJ said:
Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said:
'It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.'
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. (footnotes omitted) (original emphasis)
[14] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 [11] ‑ [12].
Although a lengthy passage, it is helpful to have regard to Kirby J's outline of the principles to be applied to the determination of whether a publication is defamatory in Chakravarti v Advertiser Newspapers Ltd[15] where he said:
1.The matter complained of should be considered in the way that a reasonable person, receiving it for the first time, would understand it according to its natural and ordinary meaning. The recipient has been variously described as a 'reasonable reader', a 'right‑thinking [member] of society', or an 'ordinary man, not avid for scandal'. Sometimes qualities of understanding have been attributed, such as the 'reader of average intelligence'. The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other). The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary, reasonable, member of society. In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision‑maker. The point of the invocation of the hypothetical reasonable person is to remind decision‑makers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility.
2.In the nature of a defamation action, the matter complained of will be analysed most closely during the trial. It will be studied and taken apart by lawyers, line by line, in a way that the average reader or viewer would never do. This fact presents significant dangers, especially for publishers. It is therefore necessary to remember that relatively few readers will be lawyers reading the matter in question with the attention appropriate to a large, complex and expensive defamation case. The ordinary person is a layman, not a lawyer. He or she approaches perception of the matter complained of in an undisciplined way and with a greater willingness to draw inferences and to read between the lines than a lawyer might do, used to precision. Where words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject. That is the price which publishers must pay for the use of loose language.
3.Different views have been expressed concerning the care and attention that will be attributed to the ordinary person and the way in which that person considers the matter complained of. Long ago, it was suggested that the ordinary person, being reasonable, would read the entirety of the matter complained of. Such a person would refrain from drawing inferences adverse to the reputation of another simply because part of the publication included matters discreditable to the subject. This reasoning has lately been endorsed by the House of Lords in Charleston v News Group Newspapers Ltd. In that case, photographs of the faces of the plaintiffs, well‑known television actors, were superimposed upon near‑naked bodies of models engaged in pornographic poses. The headline read 'Porn shocker for Neighbours stars'. When the text of the publication was closely examined it contained expressions of purported outrage about a pornographic computer game which could superimpose the faces of individuals without their knowledge or consent upon the bodies of others. Their Lordships upheld the decisions of the primary judge and of the English Court of Appeal, sustaining the publisher's objection that the publications were incapable of being defamatory. They rejected the proposition that 'the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines'. They declared that such reasoning was 'unacceptable'. Respectfully, I cannot agree with their Lordships' opinion. In my view it ignores the realities of the way in which ordinary people receive, and are intended to receive, communications of this kind. It ignores changes in media technology and presentation. It removes remedies from people whose reputation may be greatly damaged by casual or superficial perception of such publications. And it overlooks the purpose of defamation law which is to provide redress when reputations are damaged in fact, not to reserve remedies to those cases only where detailed and thorough analysis of the matter complained of has been undertaken. I agree with the criticisms which have been voiced about Charleston. Many people, including not a few judges and jurors, do not look beyond headlines and photographs. If this is the environment in which reputations may be harmed, it would be contrary to the purposes of the law of defamation to withhold redress from cases where harm was held to be done. To the extent that dicta in Charleston or other cases suggest that the courts should attribute to the recipients of matter published in the mass media a close and careful attention to the entirety of the item published, I would not follow that opinion. I would not adopt its reasoning as part of the common law of Australia. To do so would be to defy common experience and, if I may say so, commonsense.
4.The ordinary reader will draw conclusions from general impressions. He or she will not re‑read or review the matter complained of ...
5.Nevertheless, in considering whether, as claimed, the matter complained of actually harms the reputation of the plaintiff, it is appropriate for the decision‑maker to keep in mind the importance attached to freedom of communication. This too is a fundamental human right. Reconciling the attainment of freedom of communication in circumstances where the individual's reputation is also protected is a function of the law of defamation. Allegedly defamatory matter must be read in a way appropriate to a society such as Australia which, by its Constitution and otherwise, enjoys a high measure of freedom of expression. Although reporting that a person has been arrested and charged undoubtedly occasions damage to some degree to the reputation of that person, this must be tolerated on the basis of the legitimate public interest in the reporting of such facts. Only if the publisher goes on to 'say or suggest that the charge was well founded' will such a report carry an imputation of guilt and sustain a remedy in defamation. In a relatively open society, it could not be disputed that the ordinary person would have had an interest to receive fair and accurate reports of proceedings of an important Royal Commission. A mass circulation daily newspaper would have been failing to fulfil its function if it had not reported on the proceedings of such a Royal Commission. Nevertheless, the potential damage to the reputation of those affected made it essential that its reports be fair and accurate. Otherwise, suspicion or accusation might be elevated in the public's mind to guilt in fact. That could leave a stain on the reputations of those affected which would do them serious and unjustifiable harm. (footnotes omitted)
[15] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 [134].

Imputations of suspicion and guilt

Considerable emphasis was placed by the defendant on the passage from the judgment of Mason J (with whom Gibbs CJ, Wilson and Brennan JJ agreed on the point) in Mirror Newspapers Ltd v Harrison[16] where he said:
As we have seen, there is now a strong current of authority supporting the view that 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 decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.
[16] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, 300 ‑ 301.
It should be noted that Mason J's observations were concerned with 'a report that does no more than state a person has been arrested and has been charged'. In referring to that passage from Harrison, McHugh J in John Fairfax Publications Pty Ltd v Rivkin described Mason J's conclusion as being that 'an ordinary reader would not draw that imputation of guilt from a bare report that a person has been arrested and charged with a criminal offence' (emphasis added). McHugh J went on to say that 'an ordinary reasonable reader does not infer that a person is involved in a crime as serious as murder unless the terms of the article point irresistibly to that conclusion'.[17]
[17] John Fairfax Publications Pty Ltd v Rivkin (1666 ‑ 1667).
A number of cases dealing with statements concerning the existence of a police investigation, or the charging of a person for an offence by the police, have considered the possible imputations of the statement as potentially falling within three categories.
That approach was discussed by the Full Court of the Supreme Court of South Australia in Sands v State of South Australia[18] where the court said:
On the other hand, as a matter of human experience and convention, a statement about a person's guilt or a speaker's perception of a person's guilt is often understood as falling into one of a discrete number of common categories. Three such categories are that there are grounds for inquiry whether a person is guilty, that there are reasonable grounds to suspect a person is guilty and that a person is guilty. Thus, in Lewis v Daily Telegraph Ltd Lord Devlin said:
'In the present case, for example, there could have been three different categories of justification - proof of the fact of an inquiry, proof of reasonable grounds for it, and proof of guilt.'
In Flood v Times Newspapers Ltd, Lord Phillips said:
'In Chase v News Group Newspapers Ltd Brooke LJ identified three possible defamatory meanings that might be derived from a publication alleging police investigations into the conduct of a claimant. These have been adopted as useful shorthand in subsequent cases. The Chase level 1 meaning is that the claimant was guilty. The Chase level 2 meaning is that there were reasonable grounds to suspect that the claimant was guilty. The Chase level 3 meaning is that there were grounds for investigating whether the claimant was guilty.' (original emphasis) (footnotes omitted)
[18] Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195 [238].
In pointing out that those commonly encountered meanings are not exhaustive, the Full Court said:[19]
That these three commonly encountered meanings are not exhaustive has been made clear by this Court in Channel Seven Adelaide Pty Ltd & Anor v S, DJ, in which Debelle J (with whom Anderson J agreed) said:
'The noun "suspect" is not a word of precise meaning. It is capable of conveying a number of meanings according to context. … The variety of the meanings of "suspect" is emphasised when regard is had to the meaning of the verb "to suspect". It may include imagining something wrong or evil or undesirable in a person on slight or on no evidence, or believing something wrong or evil or undesirable in a person on insufficient proof or evidence. It also includes believing that a person has committed an act, lawful or unlawful, where the grounds for that belief may range from mere gossip through a belief on slight or insufficient proof or evidence to a belief reasonably grounded on evidence, even to a belief on strong grounds. Generally speaking, dictionaries define a suspect in the context of a person suspected of a crime as a person imagined to be guilty on insufficient or no proof: see Oxford English Dictionary and Macquarie Dictionary. With respect that is too narrow a meaning. The frequency of press reports of criminal investigation and of court proceedings have made the ordinary man and woman familiar with the fact that the grounds on which a person may be suspected of a crime may range from slight to reasonable, if not also to strong grounds, depending upon the state of the evidence.
…
I do not … accept the submissions of Channel Seven and the ABC that the word "suspect" is entirely neutral as to the quality of the suspicion. Instead, it is a word of imprecise meaning capable of conveying to different viewers or listeners different perceptions as to the quality of the suspicion, ranging from slight through reasonable to strong grounds.'
and in Sands v Channel Seven Adelaide Pty Ltd & Anor, in which Gray J (with whom Nyland and Vanstone JJ agreed) said:
'The noun "suspect" is not a word of precise meaning. A statement that someone is suspected of something may, depending on the context, convey a number of different meanings. To the extent that the use of the word "suspect" conveys anything about the grounds upon which suspicion is based, it may suggest either suspicion based on slight or no evidence, suspicion based upon reasonable grounds, or, suspicion based upon reasonable grounds founded in direct evidence of the suspect’s own conduct. In determining the meaning conveyed by the word in a particular case, it is important to distinguish those authorities which address the independent issue of whether a particular meaning is capable of being conveyed.
A number of authorities suggest that a statement that a person is suspected of something may imply reasonable grounds for the suspicion. However, such implication will necessarily depend on the context arising in the particular proceeding and in some cases less speculation may be appropriate. A bare statement that a person is suspected of something may not necessarily convey any information about the basis for, or nature of, the suspicion, beyond the mere fact that the person is suspected of that thing.' (footnotes omitted)
[19] Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195 [240].

Context of the 20 September 2007 press conference

It is clear that there was exceptional media interest surrounding Mrs Rayney's murder. The extent of that interest is relevant to three pleaded issues. The first of those issues is the question of whether the meaning of the words used by DSS Lee on 20 September 2007 should be considered in the context of his earlier press statements, or simply viewed in isolation. The second is the extent that that context informs the meaning of the words used. The third issue is the availability of the statutory and common law defences of qualified privilege.
The level of media interest following Mrs Rayney's disappearance was intense, no doubt fuelled by the respective occupations and prominence of Mr and Mrs Rayney. For the purposes of the trial in this action, a media bundle containing publications in the print media, online and in the electronic media was tendered. The media bundle contained:
(a)44 news items published between the time of Mrs Rayney's disappearance and the discovery of her body six days later in Kings Park;
(b)a further approximately 200 news items in relation to Mrs Rayney's murder published between 16 August 2007 and 20 September 2007;
(c)a further 103 news items largely dealing with the information conveyed in DSS Lee's media conference of 20 September 2007 published between 20 September 2007 and 22 September 2007; and
(d)a further approximately 200 news items dealing with aspects of the Rayney investigation published between 23 September 2007 and the end of that year.
DSS Lee described the media interest as 'incredibly intense' and said that he had never worked on any enquiry before or since with that level of media interest.[20] He said that the media involvement in the case 'sometimes got in the way of the investigation and when it did, we tried to dampen it down'.[21] DSS Lee said that as early as 10 August 2007, shortly after Mrs Rayney went missing but before her body had been found, he recorded in his diary discussions with a number of media personalities and 'allegations that police were going soft on Lloyd Rayney'.[22] He explained that was a reference to a television journalist, Ms Dixie Marshall, who threatened to report DSS Lee to the CCC for being corrupt for not pursuing Mr Rayney because he was a former DPP prosecutor.[23]
[20] Witness statement Jack Lee, exhibit 96 [101].
[21] Witness statement Jack Lee, exhibit 96 [106].
[22] Trial Bundle (TB) vol 3, G0094, page 823.
[23] ts 3158, 7 April 2017.
Inspector Peter Hatch was involved in Operation Dargan in 2007, when he then held the rank of Inspector, in the role of media manager within the police media unit. He described the press conference on 20 September 2007 as 'the largest and most intense conference I had experienced' with the room filled to capacity with about 35 media representatives, including cameramen.[24]
[24] Witness statement Peter Hatch, exhibit 181 [218].
The extent of media interest was confirmed by the representatives of the media who gave evidence in this trial, Mr Sean Cowan, the then principal crime reporter for The West Australian newspaper; Mr David Cooper, a Channel 7 journalist; Mr Grant Taylor, then a Channel 9 news reporter in Perth; and Ms Carolyn Monaghan, then an ABC reporter. Mr Taylor described the Rayney investigation as 'the biggest story at the time'.[25] Ms Monaghan said that 'if there is an eminent person involved it goes up the ranks as being a good story'. She said that she knew from the beginning that there was a high level of media interest from the number of reporters covering the story and the newspaper and TV coverage.[26]
[25] ts 1345, 16 March 2017.
[26] Witness statement Carolyn Monaghan, exhibit 114 [88] ‑ [89].
On 23 August 2007, the director of news at Channel 7 emailed Mr Neil Poh, a media advisor within the police department, referring to 'intense public interest in the investigation into the murder of Supreme Court Registrar, Corryn Rayney'. The letter referred to 'much rumour, speculation and innuendo in the community regarding this case - and the fact that a murderer remains at large'. It posed a number of questions to the Commissioner of Police. One of the last of those questions was 'is Lloyd Rayney a suspect now?' Mr Cooper, who said he would have briefed Mr Menegola in relation to the letter, and perhaps drafted it, said that question would have arisen in his mind because many murder cases involving married women upon which he had reported resulted in the victim's partner being charged.[27]
[27] ts 1370, 16 March 2017.
It is apparent from the evidence referred to above, and from the content of the extensive media publications concerning the Rayney investigation that, by the time DSS Lee held the press conference on 20 September 2007, there was intense media interest in, and much speculation in the community as to, the identity of Mrs Rayney's killer.
Any press conference held by police concerning an ongoing investigation requires particular care, a matter reflected in the West Australia Police Media Guide (which is discussed below). The context in which the press conference of 20 September 2007 occurred called for very careful attention to the words being used.
DSS Lee said that when he held media conferences in relation to Operation Dargan, he was usually dealing with the same reporters; in particular, he referred to Mr Cowan, Ms Sue Short, Mr Taylor and Mr Cooper.[28] Inspector Hatch also said that, to his knowledge, there was continuity of reporters covering the story of Mrs Rayney's disappearance.[29] Mr Cooper said that it was part of his role as a 'good crime reporter' to follow reports by other media organisations in relation to the story.[30] Ms Monaghan said that she had a practice of keeping up to date with what all the other media outlets were saying about the case.[31] Mr Cooper said that he attended each of the conferences on 16 August, 22 August, 29 August and 20 September 2007. Mr Taylor and Mr Cowan each gave evidence that they attended the conferences on 16 August, 22 August and 20 September 2007, but were not asked about their attendance at the conference on 29 August 2007. Apart from the journalists who gave evidence, the evidence does not reveal who of the large number of journalists present on 20 September 2007 attended any or all of the previous press briefings by DSS Lee. It is clear that each of the four conferences was attended by a number of reporters from a range of media organisations, particularly the mainstream news services of Channel 7, Channel 9, the Australian Broadcasting Corporation and, at least at the conference of 20 September 2007, Channel 10 and The Sunday Times newspaper.
[28] ts 3139, 7 April 2017.
[29] ts 4295 ‑ 4296, 9 May 2017
[30] ts 1358, 16 March 2017.
[31] ts 3459, 19 April 2017.
Each of the four press conferences received significant media coverage. The media bundle which was tendered in the course of the trial reveals that the statements made by DSS Lee at Kings Park on 16 August 2007 were reported by the Channel 9 news, the Channel 7 news, ABC online, the Subiaco Post newspaper, The West Australian and various eastern states newspapers.[32]
[32] Media bundle M0078 page 217 ‑ 224, M0079 page 225, M0088A page 235 ‑ 237, M0090 page 243, M0093 page 246.
DSS Lee's statements to the press on 22 August 2007 and, in particular, his statement that Mr Rayney had fully cooperated with police and was not a suspect in the investigation, were reported by AAP, Networked Knowledge, The West online, The Age newspaper, Channel 7 news, ABC news, The West Australian, the Northern Territory News, The Australian newspaper, News.com.au and various other interstate publications.[33]
[33] Media bundle M0130 page 306, M0132 page 308, M0136 page 314, M0140 page 320, M0141 page 321, M0142 page 323, M0143 page 327, M0145 page 333, M0149 page 338, M0151 page 340, M0152 page 341, M0153 page 342, M0157 page 350, M0164 page 360, M0165 page 364, M0166 page 369, M0167 page 370, M0169 page 372, M0170 page 373, M0173 page 377.
DSS Lee's statements to the media on 29 August 2007 were reported by Channel 7 news, ABC news, The Australian (under the by‑line of Ms Alana Buckley‑Carr, who was identified as being at the conference of 20 September 2007) and The Mercury newspaper.[34]
[34] Media bundle M0203 page 425, M0204 page 428, M0208 page 434, M0208 page 435, M0209 page 436.
The media bundle contains in excess of 140 newspaper, television and radio reports of DSS Lee's news conference of 20 September 2007.[35]
[35] M0254 page 496 (Perth now ‑ Jim Kelly), M0256 page 502 (Sydney Morning Herald), M0257 page 504 (The West online), M0260 page 508 (AAP), M0262 page 510 (AAP), M0263 page 511 (AAP), M0264 page 512 (AAP ‑ Liza Kappelle, Nicolas Perpitch & Andrea Hayward), M0265 page 513 (New Zealand Press Association), M0266 page 514 (Organisation of Asia ‑ Pacific News Agencies), M0267 page 515 ‑ 525 (Transcript of 20 September), M0267B page 527 ‑ 530 (10 News ‑ Jane Bootle reporting), M0268 page 531 ‑ 536 (7 News ‑ Reece Whitby reporting), M0270 page 539 ‑ 541 (ABC News ‑ Alicia Gorey/Sue Short reporting), M0276 page 549 (The Advertiser), M0278 page 551 (The Daily Telegraph), M0281 page 554 (AAP), M0285 page 558 (Hobart Mercury),M0286 page 559 (Herald Sun), M0287 page 560 (Canberra Times (Liza Kappelle, Nicolas Perpitch & Andrea Haward), M0288 page 561 (The Australian ‑ Alana Buckley ‑ Carr & Paige Taylor), M0289 page 562 (The West Australian ‑ Sean Cowan, Ronan O'Connell & Luke Elliot), M0290 page 564 (The Australian ‑ Alana Buckley‑Carr & Paige Taylor), M0291 page 565 (Sean Cowan, Ronan O'Connell & Luke Eliot), M0294 page 568 (news.com.au ‑ Alana Buckley‑Carr & Paige Taylor), M0295 page 572 (ABC News), M0297 page 574 (Networked Knowledge ‑ edited by Robert Moles), M0298 page 575 (Networked Knowledge ‑ edited by Robert Moles), M0299 page 577 (Networked Knowledge ‑ edited by Robert Moles), M0300 page 579 (The West online ‑ Rachel Donkin & Peta Rule), M0301 page 582 (Networked Knowledge ‑ edited by Robert Moles), M0302 page 583 (The West online), M0303 page 585 (The Advertiser), M0304 page 586 (Herald Sun), M0305 page 587 (The Daily Telegraph), M0307 page 589 (AAP), M0308 page 590 (AAP), M0309 page 591 (AAP ‑ Liza Kappelle & Andrea Hayward), M0310 page 592 (AAP), M0311 page 593 (The West Australian ‑ Sean Cowan), M0313 page 595 (The Daily Telegraph), M0314 page 596 (The Mercury ‑ Tasmania), M0316 page 598 (AAP), M0318 page 600 (AAP ‑ Liza Kappelle & Andrea Hayward), M0319 page 601 (AAP ‑ Liza Kappelle & Andrea Hayward), M0320 page 602 (New Zealand Press Association), M0322 page 604 (ABC Online ‑ David Weber), M0323 page 606 (9 News ‑ Grant Taylor reporting), M0325 page 611 (ABC Online), M0326 page 612 (Perthnow ‑ Jim Kelly & Nicole Cox), M0327 page 615 (Weekend Australian ‑ Alana Buckley‑Carr), M0328 page 616 (Subiaco Post ‑ Fiona Ross‑Edwards), M0329 page 618 (The West Australian ‑ Sean Cowan & Ronan O'Connell), M0330 page 620 (Weekend Australian ‑ Alana Buckley‑Carr), M0331 page 621 (The West Australian ‑ Sean Cowan), M0333 ‑ M0334 page 623 ‑ 624 (Cambridge Post ‑ Fiona Ross‑Edwards), M0335 page 625 (The Royal Gazette (Bermuda) ‑ Elizabeth Roberts), M0337 page 629 (Northern Territory News / Sunday Territorian), M0338 page 630 (The Canberra Times), M0339 page 631 (AAP),M0340 page 632 (The Advertiser), M0341 page 633 (The Mercury), M0342 Page 634 (The Gold Coast Bulletin), M0343 page 635 (The West Australian ‑ Sean Cowan & Ronan O'Connell), M0345 page 637 (10 News ‑ Natasha Belling reporting), M0346 page 639 (7 News ‑ Geof Parry reporting), M0347 page 642 (7 News ‑ Louise Momber), M0353 p 653 (The Sunday Time ‑ Colleen Egan), M0357 page 657 (Sunday Canberra Times), M0358 page 658 (ABC News online), M0359 page659 (ABC News ‑ online), M0360 page 660 (Networked Knowledge ‑ edited by Robert Moles), M0361 page 662 (news.com.au ‑ Nicolas Perpitch & Colleen Egan), M0362 page 667 (AAP), M0363 page 668 (AAP ‑ Nicolas Perpitch), M0364 page 669 (AAP), M0365 page 670 (AAP ‑ Nicolas Perpitch), M0366 page 371 (AAP ‑ Nicolas Perpitch), M0367 page 672 (ABC News online), M0369 page 675 (Hobart Mercury ‑ Nicolas Perpitch), M0370 page 376 (Canberra Times), M0371 page 677 (The West Australian ‑ Sean Cowan, Luke Eliot & Ronan O'Connell), M0374 page 682 (Kalgoorlie Miner), M0375 page 683 (Australian ‑ Alana Buckley‑Carr), M0376 page 684 (Western Suburbs Weekly), M0377 page 685 (Northern Territory News), M0378 page 686 (Perthnow ‑ Nicolas Perpitch), M0379 page 688 (Networked Knowledge ‑ edited by Robert Moles), M0382 page 692 (The Royal Gazette (Bermuda) ‑ Elizabeth Roberts), M0383 page 693 (The Advertiser), M0384 page 694 (The Australian ‑ Janine MacDonald), M0385 page 695 (The Courier Mail), M0386 page 696 (The Hobart Mercury), M0387 page 697 (AAP ‑ Nicolas Perpitch), M0388 page 698 (AAP), M0389 page 699 (The Gold Coast Bulletin), M0390 page 700 (9 News ‑ Dixie Marshall), M0391 page 704 (7 Today Tonight ‑ Monika Kos), M0394 page 710 (Courier Mail (Brisbane) ‑ Nicolas Perpitch), M0394A page 711 (The West Australian ‑ Sean Cowan), M0395 page 712 (Guardian Express ‑ Louise Bettison), M0396 page 713 (Southern Gazette), M0397 page 714 (Western Suburbs Weekly), M0398 page 715 (The Australian ‑ Alana Buckley‑Carr), M0400 page 717 (The West Australian ‑ Paul Murray) M0401 page 718 (Hawke's Bay Today), M0402 page 719 (ABC News online), M0403 page 720 (ABC News online), M0404 page 721 (ABC News online), M0405 page 722 (Sydney Morning Herald), M0406 page 724 (The Australian), M0407 page 725 (Organisation of Asia-Pacific News Agencies), M0408 page 26 (The Courier Mail ‑ Nicolas Perpitch), M0409 page 727 (AAP), M0410 page 728 (AAP), M0411 page 729 (AAP), M0412 page 730 (The West Australian ‑ Sean Cowan) M0414 page 732 (Guardian Express), M0415 page 733 (New Zealand Press Association), M0416 page 734 (The West Australian ‑ letter to the editor), M0417 page 735 (9 News‑Sonia Vinci), M0418 page 736 (10 News ‑ Charmaine Dragun), M0419 page 738 (9 News ‑ Grant Taylor), M0425 page 746 (Northern Territory News), M0426 page 747 (The West Australian ‑ Sean Cowan, Ryan Pedler & Amanda Banks), M0427 page 748 (The Australian ‑ Alana Buckley‑Carr), M0428 page 749 (Kalgoorlie Miner), M0429 page 750 (The Australian ‑ Alana Buckley‑Carr), M0431 page 752 (The West Australian ‑ letters to the editor), M0432 page 753 (Networked Knowledge ‑ edited by Robert Moles), M0433 page 755 (The Royal Gazette (Bermuda) ‑ Elizabeth Roberts), M0434 page 756 (Northern Territory News / Sunday Territorian), M0436 page 758 (Perthnow ‑ Jim Kelly), M0439 page 761 (AAP),M0440 page 762 (7 News ‑ Gary Adshead), M0441 page 764 (ABC News ‑ Alicia Gorey), M0444 page 767 (The Weekend Australian ‑ Matt Price), M0446 page 769 (The West Australian ‑ Sean Cowan), M0447 page 770 (Weekend Australian ‑ Alana Buckley‑Carr), M0452 page 777 (The Age ‑ Sean Cowan), M0453 page 780 (Sydney Morning Herald ‑ Sean Cowan), M0454 page 783 (Sunday Times), M0455 page 784 (Sunday Age ‑ Sean Cowan), M0456 page 787 (Perthnow ‑ Colleen Egan), M0457 page 815 (The Sunday Times ‑ Colleen Egan).
Those reports included reports by PerthNow, The West Australian, AAP, Channel 7 news, Channel 10 news, ABC news, The Australian, News.com.au and numerous interstate and international news providers.

Should the words used on 20 September 2007 be construed in context of earlier press statements?

The plaintiff submits that the significance of the previous press conferences can be viewed in a number of ways.
The first is that it gives context to the press conference on 20 September 2007, which was held at Curtin House where the principal officers involved in Operation Dargan were based. The earlier media conferences had been held at Kings Park (16 August 2007), outside the Rayney residence (22 August 2007), and at Police Headquarters (29 August 2007). The plaintiff submits that the conference on 20 September 2007 was to be a dramatic and significant press conference, heightening the expectations of those attending.[36]
[36] Plaintiff's closing submissions [47].
Whilst I consider that the context in which the press conference occurred is significant, I do not accept that the different location of the conference of 20 September 2007 served to provide any emphasis to, or to affect the proper meaning of, the words used by DSS Lee. The location of previous press conferences was of no significance to the meaning of what was said on 20 September 2007. The conference did, however, follow what appeared to be dramatic developments in the investigation, namely the further searches of the Rayney residence and Mr Rayney leaving his home with police and being taken to Curtin House. I agree that those developments were likely to have heightened the expectations of the journalists who attended the press conference, a matter confirmed by the large attendance.
The plaintiff also notes that Mr Cooper, at least, attended all four press conferences. There were stories in respect of all four press conferences run by the major media outlets in Perth and the journalists giving evidence confirmed that they monitored news reported by other media organisations. Against that background, the plaintiff identifies various statements made by DSS Lee at the earlier press conferences. They included a statement at the press conference of 22 August 2007 to the effect that Mr Rayney was not a suspect in the investigation, and the statement on 29 August 2007 that 'there is no evidence against Mr Rayney having committed any crime, he is not a suspect in this matter'. The plaintiff also refers to statements made by DSS Lee at the conference on 29 August 2007 expressing confidence that the crime would be solved.
The plaintiff relies on the observations of Hunt J in Burrows v Knightley[37] where his Honour said:
Where the matter of which the plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent on the face of the matter complained of itself either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add 'true' innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation. (original emphasis)
[37] Burrows v Knightley (1987) 10 NSWLR 651, 657.
The evidence makes clear that the press conference of 20 September 2007 was being held in the context of the ongoing Operation Dargan investigation. Inspector Hatch prepared a list of likely questions that might be asked of DSS Lee at the press conference. He did so to enable DSS Lee to prepare for the conference. Some of the questions contained references back to statements that had been made by DSS Lee at the earlier press conferences.[38] Inspector Hatch agreed that he anticipated that journalists who came to the press conference on 20 September 2007 would include journalists who had been at the press conferences on 22 and 29 August 2007.[39] There were in fact questions posed at the 20 September 2007 press conference by journalists referring back to earlier statements by DSS Lee in previous press conferences.
[38] TB G0217, page 2222.
[39] ts 4319, 9 May 2017.
Notwithstanding that context, I do not consider that the words spoken by DSS Lee at all four press conferences can be treated as, in effect, a single publication. The press conference of 20 September 2007 was given at a time when there were new developments in the investigation, in particular the further searches of the Rayney residence and Mr Rayney's office and the proposal to charge him in relation to the telecommunications matter. The position had changed, so far as the public position of the police was concerned, from one where they had expressly stated (contrary to the private view of a number of officers) that Mr Rayney was not a suspect, to a position where he was now to be publicly considered a suspect. In those circumstances, the words used by DSS Lee on 20 September 2007 stood alone as a separate publication and should be construed on their own. The words to which meaning is to be attributed are therefore those referred to as the 'alternative utterance' in the statement of claim.

It also contained the following direct quotes of Inspector Jack Lee:
o'We demanded entry, we tried to contact the house, we were aware Mr Rayney was inside the house. After knocking several times, we forced entry.'
o'He is our prime suspect because our evidence at this time leads us to believe the offence occurred at that house, and he is the occupant of that house.'
o'We are interviewing Mr Rayney in relation to the murder of his wife.'
o'I'm not suggesting the phone tap link shim to the murder. I'm simply saying that as a result of our investigations, we've uncovered an illegal practice and we are prosecuting in relation to that.'
o'showed their hand'
o'We still need the consent of a parent to interview a child. We're constricted by rules.'

M0289 ‑ The West Australian 'Prime Suspect' 21 September 2007

This article which ran on the front page with a prominent headline and photo contained the following:
o'Police yesterday took the extraordinary step of pointing the finger squarely at her husband Lloyd by naming him as the prime suspect.'
o'Jack Lee broke his two-week silence on the inquiry by calling a press conference to reveal that Mr Rayney was the prime and only suspect.'
o'Lee said police also believed Mrs Rayney had been killed in the family's Como home …'
o'…he also revealed the couple's young daughters were probably in the house at the time their mother was murdered.'
o'Mr Rayney was refusing to co-operate with the police…. Had refused to allow police to interview his children...'
o'police broke into Mr Rayney' s Monash Avenue home and raided it after he refused to let them in.'
o'Mr Rayney was now the prime suspect, but only because forensic evidence suggested Mrs Rayney had been murdered in the family home.'
o'Mr Rayney refused to let them in for several minutes before police knocked down the back door.'
o'…police had evidence that Mr Rayney had co‑ordinated the bugging of his home telephone. But other people would be charged, he said'
It also contained the following direct quotes of Inspector Jack Lee:
o'What we are saying is we believe that the offence occurred at Monash Avenue. That makes Mr Rayney a significant person of interest or a suspect in this matter.'
o'He is our only suspect at this time. We do have a number of persons of interest. Some persons of interest have been excluded from this investigation. Some remain. And I have no doubt some will be injected into the investigation in the future. At this time he is the primary person of interest, or the suspect.'
o'I'm not suggesting the phone tap links him to the murder. As a result of our investigations we have discovered an illegal practice and we are prosecuting in relation to that. He is our prime suspect because our evidence at this time leads us to believe the offence occurred at this house and he is the occupant of the house.'
o'We do believe that that’s the most likely place where she was killed.'
o'We can't say definitively, but we believe that’s the most likely. There are many forensic results that have come back which gives us that indication. We cannot exclude at this time that it happened elsewhere. But we believe that it’s most likely that it happened at that house.'
o'My understanding is that we demanded entry.'
o'We tried to contact the house. We were all there. Mr Rayney was inside the house and he didn’t answer the door. After knocking several times we forced entry. It's not explainable (why he didn't answer).'
o'I'd say we are substantially further than we were'
o'But there is still a long way to go. I think we have the evidence. It's a matter of working out where it all fits together.'

M0291 ‑ The West Australian 'Prime Suspect' 21 September 2007

This article in the West Australian contained the following:
o'by calling a press conference to reveal that Mr Rayney was the prime and only suspect.'
o'Lee said policed also believed Mrs Rayney was killed in the family's Como home…'
o'…also revealed the couple’s young daughters were probably in the house at the time their mother was murdered.'
o'My Rayney was refusing to cooperate with the police… and had refused to allow police to interview his children…'
o'…police broke into Mr Rayney’s Monash Avenue home and raided it after he refused to let them in.'
o'Lee claimed Mr Rayney refused to cooperate with police while they were in the house, so they arrested him and took him to the offices of the major crime squad in Northbridge.'
o'Lee said Mr Rayney was now the prime suspect, but only because forensic evidence suggested Mrs Rayney had been murdered at the family home.'
It also contained the following direct quotes of Inspector Jack Lee:
o'What we are saying is we believe that the offence occurred at Monash Avenue. That makes Mr Rayney a significant person of interest or a suspect in this matter.'
o'He is our only suspect at this time. We do have a number of persons of interest. Some persons of interest have been excluded from this investigation. Some remain. And I have no doubt some will be injected into the investigation in the future. At this time he is the primary person of interest, or the suspect.'
o'I'm not suggesting the phone tap links him to the murder. As a result of our investigations we have discovered an illegal practice and we are prosecuting in relation to that. He is our prime suspect because our evidence at this time leads us to believe the offence occurred at this house and he is the occupant of the house.'
o'We do believe that that’s the most likely place where she was killed.'
o'We can't say definitively, but we believe that's the most likely. There are many forensic results that have come back which gives us that indication. We cannot exclude at this time that it happened elsewhere. But we believe that it’s most likely that it happened at that house.'

M0322 ‑ Transcript of ABC Radio ‑ The World Today- Police name Rayney as suspect in wife's murder 21 September 2007

This contained statements as follows:
oPolice have named the former DPP (Director of Public Prosecutions) prosecutor as the prime suspect in the murder, and today returned to the Rayney home after forcing their way in yesterday and taking Mr Rayney away for questioning.
oDAVID WEBER: Well Eleanor, he has been charged with an offence under the Surveillance Devices Act, relating to the installation of a phone tap on the home phone. Now, Lloyd and Corryn Rayney were living in the same house, although they were estranged.
oELEANOR HALL: Have police said why they're now naming Lloyd Rayney as the prime suspect in the murder of his wife?
oNow, police believe on the night of the 7th of August, she was murdered in the family home. Forensic evidence has led them to believe that. They do have other people of interest, persons of interest in the case, who police say will be brought in at a later stage. They wouldn't be any more specific than that, but police say Lloyd Rayney is the prime and only suspect.
oGrabs of Lee from an ABC radio interview on 21.09.2007 with Geoff Hutchison are played.
oNow that Lloyd Rayney has been named as a chief suspect, if he was ever to be charged, then you would think those concerns would have been heightened.

M0324 ‑ Nine News at 18:00 ‑ 21 September 2007

This contained such content as:
oThe testing follows the revelation that the home is where police now believe Corryn Rayney was killed before her body was buried at Kings Park.
oLloyd Rayney has told police he was at the house with his daughters the night his wife vanished
oPolice taking the unusual move yesterday of naming him as their main and only suspect.

Annexure C

Publication of the Oral Utterance, alternatively the Alternative Utterance, was improper, unjustifiable and lacking in bona fides, in a manner which has aggravated the hurt, damage and distress suffered by the plaintiff in that:

9.1publication of the Oral Utterance, alternatively the Alternative Utterance, was:
9.1.1gratuitous and contained information beyond that which was necessary to update the public in relation to Operation Dargan;
9.1.2naming the plaintiff as the prime suspect and only suspect was a serious departure from the proper standards of conduct expected of investigating officers;
9.1.2recorded by media representatives with the use of video, photographic and audio equipment;
9.1.3conducted in circumstances where media representatives were permitted to ask questions of DSS Lee;
9.1.3included false, prejudicial and inaccurate statements;

Particulars

As at the date of the media conference the plaintiff was not the only suspect in the murder of Corryn Rayney;
As at the date of the media conference there was no 'forensic evidence' which had led the police to 'believe' that it was 'very likely' that Corryn Rayney was murdered at the Rayney Premises;
The plaintiff had not denied access to his house earlier that morning;
The plaintiff had not stopped the police from interviewing his children;
The plaintiff did cooperate with police on 20 September 2007;
The plaintiff was not arrested at his house because he was not cooperating with police;

9.2DSS Lee deliberately elected to hold the Media Conferences and publish the Oral Utterance, alternatively the Alternative Utterance, to the media thereby utilising the wide extent and mode of publication of all forms of media, including via the World Wide Web, so as to maximise the extent of the distribution of the Oral Utterance, or its gist, alternatively the Alternative Utterance, or its gist, to as wide an audience as possible;
9.3DSS Lee, the Western Australian Police Force and the defendant have not apologised to the plaintiff, despite an apology being self‑evidently called for;
9.4statements published by DSS Lee and other serving members of the Western Australian Police Force and the defendant to the media made after publication of the Oral Utterance, alternatively the Alternative Utterance, endorsed and supported publication of the Oral Utterance, alternatively the Alternative Utterance;
9.5none of DSS Lee, serving members of the Western Australian Police Force or the defendant issued any statements after publication of the Oral Utterance, alternatively the Alternative Utterance, to clarify or correct any aspect of the republication, by the media or listeners/recipients and reporting of DSS Lee's publication of the Oral Utterance, alternatively the Alternative Utterance;
9.6statements published by DSS Lee, other serving members of the Western Australian Police Force and the defendant to the media after publication of the Oral Utterance, alternatively the Alternative Utterance, provided additional support to the defamatory matter conveyed by the Oral Utterance, alternatively the Alternative Utterance;
9.7DSS Lee, the Western Australian Police Force and the defendant have failed to apologise to the plaintiff and retract the allegations contained within the Oral Utterance, alternatively the Alternative Utterance despite:
9.7.1on 1 November 2012, the Supreme Court finding the plaintiff not guilty of both wilful murder and the alternative charge of manslaughter in Western Australia v Rayney (No 3) [2012] WASC 404 (Decision at First Instance); and
9.7.2on 23 September 2013, the Court of Appeal dismissing the defendant's appeal against the judgment of acquittal in The State of Western Australia v Rayney [2013] WASCA 219;

9.8DSS Lee, the Western Australian Police Force and the defendant have failed to apologise to the plaintiff and retract the allegations contained within the Oral Utterance, alternatively the Alternative Utterance despite the following comments and determinations by the Honourable Acting Justice Brian Martin in the Decision at First Instance (which comments and determination were upheld by the Court of Appeal) that:
9.8.1Paragraphs 683 ‑ 686:
29 August 2007 press conference - person of interest/suspect
[683]On 29 August 2007 Mr Lee gave a press conference in which he described the accused as a 'person of interest' who was helping police with their inquiries. He said the accused was one of many persons of interest and drew a distinction between a person of interest and a suspect in the following terms:
A suspect indicates that there is some level of evidence against the person having committed the crime. There is no evidence against Mr Rayney having committed any crime. He is not a suspect in this matter.

[684]Mr Lee should not have given the press conference or, if there was another reason for giving the press conference, he should not have nominated the accused as a 'person of interest'.
[685]In evidence, Mr Lee said that the accused was not suspect as at 29 August 2007. He was only a person of interest. I reject that evidence. The totality of the material before me plainly establishes that by 27 August 2007, if not earlier, the accused was a suspect. It was on 27 August 2007 that police obtained warrants to permit the interception of the accused's home and mobile telephone numbers. On 28 August 2007 investigators met with a Dr Saatoff, a visiting American 'profiler'. In the critical decisions log, Mr Correia recorded:
Meeting with Dr Saatoff cemented our thoughts and perception of person of interest Lloyd Rayney (ts 3783).

[686]Notwithstanding the use of the expression 'person of interest' in the log, during cross‑examination Mr Correia agreed that by 28 August 2007 the accused was 'clearly a suspect' and, having discussed various matters with Dr Saatoff, the accused's 'level of … being a suspect' was 'raised'.

9.8.2Paragraphs 690 ‑ 699:
20 September 2007 press conference
[690]Moving to 20 September 2007, the police planned a number of activities that day. They intended to arrest the accused for breaches of the Surveillance Devices Act 1998 (WA) and to execute search warrants at Como and at the accused's chambers. They intended to interview the accused's friend, Ms O'Brien, in Bunbury. The search warrants were executed and a large media contingent was present a Como. The accused was arrested at Como. It was in this context that Mr Lee gave the press conference. The audiovisual record and transcript are ex 307.
[691]It is unnecessary to discuss the content of the press conference in detail. Mr Lee announced the execution of the warrants and said that the ongoing investigations and forensic evidence had led police to believe that it was 'very likely' that the deceased was murdered at Como. He spoke about executing forced entry into the home and said that as a result of further investigations that morning, including the interview of the accused, the police regarded the accused as a 'suspect' in the murder of the deceased. In substance Mr Lee nominated the accused as the 'prime' and 'only' suspect. He advised that the accused had been charged with an offence under the Surveillance Devices Act.
[692]To put the position at its lowest, Mr Lee was gravely in error in identifying the accused as a 'suspect' in the murder of the deceased and in conveying a police view that the accused was the prime and only suspect. Similarly, he should not have informed the media that police investigations and 'forensic evidence' had led the police to 'believe' that it was 'very likely' that the deceased was murdered at Como. Given the presence of the media, Mr Lee probably had no choice but to confirm that police had executed a search warrant at the premises, but he should not have said that police had executed a forced entry after 'access was denied' and there was no need to mention the execution of a search warrant at the accused's business premises. It would have been sufficient to explain to the media that police had executed a search warrant in furtherance of their investigations and that the accused had been charged with an offence under the Surveillance Devices Act.
[693]Mr Lee's lack of judgment was compounded by allowing the media to continue to ask questions and by giving a number of utterly inappropriate responses. In particular, notwithstanding his statement that police did not possess any evidence to suggest that the accused was 'in fact guilty of or is in fact responsible for' the murder of the deceased, naming the accused as a suspect and the prime or only suspect was a serious departure from the proper standards of conduct expected of investigating officers. What occurred on 20 September 2007 in the press conference highlights the dangers associated with such conferences and the undesirability of police giving such open‑ended conferences or interviews concerning ongoing investigations.
[694]Mr Lee remained in his position with the Major Crime Squad until the end of 2007 when he was transferred. There is no suggestion in the evidence that he played any active role in the investigation between 20 September 2007 and the date of his transfer.
[695]Not surprisingly, the press conference on 20 September 2007 was followed by extensive and prominent publicity identifying the accused as the prime and only suspect in the murder of the deceased. The West Australian carried a headline on the front page 'Prime suspect' under which was a large photograph of the accused in the rear of a vehicle alongside a male person in a suit. The image plainly suggested that the person was a police officer. Under the photograph appeared the following headings:
•Husband the only suspect in Corryn Rayney murder: police.
•Detectives say she was probably killed in family home.
•Police break into house after Rayney refuses them access.

[696]The Australian newspaper also carried the story prominently under a heading 'Rayney now suspect in wife's murder'. Under the headline was a photograph of the accused being escorted by police into the family home at Como.
[697]Notwithstanding that he was the officer in charge of the investigation, Mr Correia said he had no idea in advance that Mr Lee was going to say anything like what he said. However, under cross‑examination Mr Correia initially agreed that he and the other officers involved in the investigation held the view that the accused was the 'prime and only suspect'. Shortly after giving that evidence, asked whether anyone else became a suspect as opposed to a person of interest, Mr Correia said he wanted to correct his previous answer. He said the accused was 'certainly a suspect', but he 'certainly wasn't the prime and only' suspect. Mr Correia said that as 20 September 2007 they were looking at other persons he considered were suspects.
[698]At no time did the Western Australian Police correct any impression that had been conveyed by Mr Lee during the press conference. Questioned about police relying on information from the public and the failure to correct what Mr Lee had said, Mr Correia gave the following evidence:
Well, the position was that Lloyd Rayney was a suspect. It wasn't the position that we, as operationally myself, wanted that out in the general public. Now, when it was it certainly didn't stop the public coming forward with information. In fact, I would say it escalated it because we got a lot more information coming out through Crime Stoppers and through other means, which was clearly investigated all the way through (ts 3788).

[699]Given the inappropriate conduct of Mr Lee at the press conference of 20 September 2007, the question must be asked whether, as suggested by counsel for the accused, the police were 'locked in' to endeavouring to prove that the accused committed the crime. There can be no doubt that the primary focus of the investigation was aimed at gathering evidence which might implicate the accused and there were aspects of the police conduct which, to say the least, were inappropriate and unacceptable. However, during the trial counsel for the accused expressly disavowed any attempt to mount a case that the police had failed to investigate adequately other persons of interest and the fact that the investigation focussed on the accused does not of itself lead to a conclusion that any particular aspect of the evidence is unreliable. A narrow focus does not deflect from the central question as to whether the evidence presented to the court proves guilt or otherwise.

9.9When called to give evidence for the defendant, Inspector (formerly Detective Sergeant) Lee:
9.9.1made a gratuitous attack on the plaintiff's reputation (T2980);
9.9.2asserted he held a present belief as to the plaintiff being guilty of murdering his wife despite the plaintiff being acquitted of the charge of murder and an appeal by the defendant being dismissed and further stating 'I believe that there was more information than was ever presented in court because a lot of hearsay evidence was inadmissible' (T2980).

9.10The maintenance by the defendant of the pleas of qualified privilege in paragraphs 37 and 38 of its defence was unreasonable in circumstances where:
9.10.1Inspector Lee said on oath as part of his evidence that he accepted the criticisms of his conduct at the press conference by the Honourable Justice Brian Martin in State of Western Australia v Rayney [No.3] [2012] WASC 404 at [690] ‑ [697] (T3152‑3153) and in particular:
9.10.1.1that it would have been sufficient in the discharge of any duty in the circumstances to explain to the media that police have executed a search warrant in furtherance of their investigations and that Mr Rayney had been charged with an offence under the Surveillance Devices Act [para 692];
9.10.1.2that he (Inspector Lee) had not consulted the officer in charge of the investigation, Detective Correia prior to the media conference [para 697];
9.10.1.3there was no operational imperative for the disclosure of information by Inspector Lee at the press conference [697] beyond the information referred to in paragraphs 9.10.1.1 hereof;

9.10.2maintenance of the pleas required the defendant to lead evidence as to reasonableness and the purported basis for the duty to publish;
9.10.3in view of the matters referred to in paragraph 9.10.1 hereof, there could be no basis for contending that the conduct of Inspector Lee was reasonable as required by section 301(1)(c) of the Defamation Act 2005;
9.10.4in view of the matters referred to in paragraph 9.10.1 hereof, the publication of the additional material beyond that identified by Justice Martin referred to in paragraph 9.10.1.1 hereof could not be the subject of any claim for privilege;
9.10.5accordingly, the maintenance of the pleas was unreasonable and not bona fide.
in all forms of media, including via the World Wide Webb, the plaintiff has suffered.