AW -v- RAYNEY [2010] WASCA 161 (6 August 2010)

AW -v- RAYNEY [2010] WASCA 161 (6 August 2010) - WASCA 2010 case summary — Zoe

[312]

Mr Rayney. Mr Rayney deposed to having retained DG Price & Co in August 2007 when he instructed Amanda Blackburn of that firm 'in matters arising from the murder of Mrs Rayney'. He states the reasons for his belief, formed on the basis of events that he describes, that police 'intended to unfairly charge' him in relation to Mrs Rayney's murder. The Category 2 Files evidence discussions made after 7 August 2007 for 'the purposes of seeking legal advice in respect of potential litigation, using in such potential litigation and seeking legal advice in relation to the discussion'. The recordings were made by Mr Rayney 'holding a handheld dictaphone near his mobile telephone or his mobile phone answering service'. He identifies the other party to each recorded conversation. He describes the significance of the conversation to the potential litigation, deposing to his belief that the content of the conversations may be relevant to issues that he identifies and that he may wish to raise in answer to any criminal charges. In cross-examination, Mr Rayney stated that: the handheld dictaphone that he used to make the original recordings was purchased by him after the discovery of Mrs Rayney's body in August 2007; he did not recall the details of the type of dictaphone or the place of purchase except that the dictaphone was similar to the one used to make the recordings that became the Category 1 Files and he acquired the dictaphone from a similar retailer; the contents of the dictaphone were copied onto a disc in mid-September 2007; the dictaphone was thrown away after the copies were made; he could not recall the place the dictaphone was thrown away or the date of disposal except that it was after 20 September 2007 (the date of execution of the warrants) [48].

Amanda Blackburn. Ms Blackburn deposed to being retained in August 2007 by Mr Rayney 'in relation to issues arising from the murder of' Mrs Rayney. She stated that she had been told by Mr Rayney 'in August and September 2007' that, as a result of his belief that 'police intended to unfairly charge him [in] relation to Mrs Rayney's death', he had used 'a hand held digital dictaphone near the telephone' to record calls with persons he identified to Ms Blackburn. The recordings had not been played to her. Ms Blackburn describes some legal work done by her in anticipation of Mr Rayney being charged over Mrs Rayney's death [49].

[355]

197 As to the first issue concerning dominant purpose, my reasons for finding error are these. First, Mr Rayney did not give or play any of the original recordings to his lawyers, and he did not seek or obtain legal advice on them. This is of significance in that, despite the Category 2 Files having been seized by the police on 20 September 2007, Mr Rayney retained the original recordings until he destroyed them by deliberately throwing out the dictaphone 'over a week after he created the Category 2 Files' [54]. Secondly, the contents of the original recordings, which are summarised in schedule 4 to these reasons, do not reveal any statements by any party to any recorded conversation, or any discussion between the parties to any recorded conversation, in respect of which Mr Rayney could reasonably have sought legal advice, either in the defence of anticipated criminal proceedings against him in connection with the death of his wife or at all. The content of each original recording (in particular, the subject matter and any issues raised by Mr Rayney or his responses to the third party) is relevant in determining Mr Rayney's dominant purpose when the communication in question occurred. Thirdly, the conversations appear to have been recorded without any discrimination as to the possible significance or relevance of each conversation. This is important because most of the conversations were with police officers and there was no evidence that Mr Rayney recorded all of his telephone conversations with the police between 7 August 2007 and 20 September 2007. Fourthly, the matters to which I have referred indicate, objectively, that Mr Rayney's dominant purpose in participating in the conversations and recording them was not to put them before a lawyer with the object of obtaining legal advice or for preparation or use in the defence of anticipated criminal proceedings against him. Rather, the objective probabilities, based on the matters to which I have referred, and the fact that Mr Rayney knew the conversations were being recorded but the other parties did not, are that Mr Rayney's dominant purpose in participating in the conversations and recording them was to assess later whether anything said by any party might be useful or advantageous to him, as matters developed in the course of the police investigation into his wife's death.

[526]

This raises a difficult question as to whether the fact that the conversations were taped contrary to the provisions of the Telecommunications (Interception) Act has the consequence that no privilege attaches to those transcripts where the privilege would otherwise have attached if the transcripts had legally been obtained.

Senior counsel for the NCA referred me to the decision of the High Court in R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, not because the situation that arose in that case was in any way comparable but because of the discussion of principle there contained.

The issue in R v Bell was whether a communication to a solicitor by his client of her address in circumstances where the client, in breach of an order of the Family Court of Australia, had absconded with a child over whom the client's husband had interim custody was the subject of legal professional privilege. It was held that it was not.

As the judgment of Gibbs J in that case points out there are certain cases in which the privilege will not exist even though the communication was made in circumstances of confidence. One example is where the communication was part of a criminal or unlawful proceeding or made in furtherance of an illegal object: Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382. So if the communication in respect of which privilege is claimed is itself a step in the commission of a crime or a civil fraud, the privilege will be found not to exist and it will be immaterial that the solicitor is not a party to the illegal object.

The reason why legal professional privilege is denied in such circumstances is that the maintenance of the privilege in the face of the illegal object would operate to impede the administration of justice rather than to further it: cf per Stephen J in Bell at 151 - 152.

The legislature had seen fit to proscribe the taping of intercepted conversations without the authority of the person whose conversations are taped. It is not necessary in the present case to determine whether Mr Carbone was, in the circumstances, liable to a penalty where it seems he was advised by Mr Waye that what he was doing was not illegal. A significant point is that the communications, in respect of which it is alleged privilege attaches, were themselves obtained in breach of Parliament's proscription. To permit privilege to attach in such circumstances, in my view, would be to impede and indeed discourage the due administration of justice and observance of the law with the consequence that I would hold that privilege does not attach to the transcripts (528 - 529).

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