Ebner v The Official Trustee in Bankruptcy [2000] HCA 62

This judgment was delivered extemporaneously on 11 May 2018 and has been edited from the transcript.

1. By a letter sent to my associate earlier today, counsel for the current appellant has drawn to my attention a number of matters which it has said that should result in me considering whether or not to recuse myself from sitting in relation to this matter. It was appropriate for counsel to bring these matters to my attention and I have given consideration to them, but for the reasons which I will now develop, I have concluded that they are not matters which should result in me declining to sit in these proceedings.
2. The test which I must apply is, of course, whether a fair-minded lay observer, cognisant of all the facts, might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the issues which I am required to decide in the course of this afternoon's proceedings.[1] That test is sometimes described as the 'double might' test. That description emphasises that the test is not demanding and reflects the importance that justice not only be done, but also be manifestly seen to be done.
3. Four matters have been raised for my consideration in the letter from counsel for the appellant. It is convenient to deal with the two matters first and I will read the description of those matters from the letter. Firstly, that I was a witness for the prosecution in the murder trial against Mr Rayney in the State of Western Australia v Rayney and, secondly, that I was a witness for the defence in Mr Rayney's defamation action, and the citations are given for those cases.
4. Both of those assertions are true, in the sense that a witness statement which I provided to authorities was tendered by consent in both of those cases. The witness statement related to a conversation which I had with Mr Rayney in my chambers on the day that the disappearance of his wife was discovered. The fact that I made that statement has been known to Mr Rayney at all material times.
5. He would also be aware, and the fair-minded lay observer cognisant of all the facts would be aware, that I cooperated fully with Mr Rayney's defence team in the course of the criminal trial and conferred with Mr Edwardson of senior counsel who represented Mr Rayney in that trial and answered candidly and fully any questions that he put to me in relation to the matters the subject of that statement.
6. After that conference with senior counsel for Mr Rayney, as I understand it, my statement was tendered in the criminal trial by consent and without the need for me to attend for cross-examination. I understand that a similar approach was taken in relation to the tender of that same statement in relation to the defamation proceedings.
7. It seems to me that those matters are entirely incapable of giving rise to any reasonable apprehension on the part of a fair-minded lay observer that I might be unable to bring an impartial and unprejudiced mind to bear upon the issues to be resolved this afternoon. I note also that the existence of that statement was known to certainly at least Mr Rayney and, presumably, his legal advisers at the time I sat without objection on a previous appeal in these proceedings, being an appeal from a preliminary determination of the State Administrative Tribunal.
8. The third matter raised in the letter from counsel is that during the course of the defamation trial, I had the conduct of the matter and, during the conduct of the matter, received confidential affidavits sworn by then Acting Police Commissioner Dawson, in support of orders which I ultimately made relieving the State of Western Australia from putting up substantive justification defences until after Mr Rayney had been charged with the murder of Mrs Rayney on 10 December 2010. The content of those affidavits, subsequently disclosed to Mr Rayney prior to the murder trial, raise allegations that never formed part of the prosecution case against Mr Rayney and which are said to be deeply prejudicial to Mr Rayney.
9. I accept this is an accurate description of what occurred. I have no present recollection of the matters deposed to in the affidavits, although I do not think that is particularly significant as the fair-minded lay observer would expect that recollection can be stimulated by other facts or information, and could not be expected to base his view upon the frailty and unpredictability of memory. More significant is that the question which I had to resolve at that time was a timetabling issue in relation to the time at which a defence was to be filed in the defamation proceedings. The only issue which I had to determine in that context was whether there was a reasonable basis for deferring the time at which the defence should be filed.
10. The basis advanced, generally, on behalf of the State, was that investigations in relation to Mr Rayney's involvement in the death of his wife were continuing and that there was a prospect that he might be charged with her murder. I have no recollection of any other matters asserted in the affidavit, but if they were not to that general effect, they would have been regarded by me as irrelevant anyway. When I read those affidavits, I viewed the allegations on the basis of the presumption of innocence and taking full account of the fact that Mr Rayney had had no opportunity to respond to those affidavits because he had not been given access to them. In my view, a fair-minded lay observer would expect me to take that approach.
11. Of course, since those events, Mr Rayney was charged with the murder of his wife. He was acquitted and an appeal against that acquittal was dismissed. In my view, no fair-minded lay observer could reasonably apprehend that for some unexplained reason I would still somehow be motivated or influenced by untested allegations made before Mr Rayney's trial and acquittal on those charges.
12. The fourth matter raised in the letter is that affidavits that were sworn by members of the taskforce investigating the murder of the late Ms Rayney in support of telephone intercept or listening device warrants, were dealt with confidentially by me. Those affidavits are also said to have been deeply prejudicial. It is also said that, for example, on 24 August 2007 at 4 pm I met with Detective Sergeant Correia in Dalkeith, which is the suburb in which I live, and granted a 90 day warrant for a listening device.
13. The question that I had to determine in relation to the application for a listening device and any other warrants that I may have issued at the time was whether there was a reasonable basis for the issue of the warrant having regard to the materials before me. As with the material that I saw in the context of the defamation trial, I viewed any allegations made in the context of the presumption of innocence and the fact that Mr Rayney was unaware of the allegations and had been given no opportunity to answer them. In my view, again, a fair-minded lay observer would expect me to take that approach.
14. Since then, as I have mentioned, Mr Rayney has been tried and acquitted, and I do not believe any fair-minded lay observer would apprehend that I might, in the face of that acquittal, bring untested allegations made so many years ago before the trial of Mr Rayney to mind in the resolution of the issues to be determined this afternoon.
15. A fair-minded lay observer would also take into account the fact that the issues to be resolved this afternoon are quite different to the issues raised by the four matters identified in the letter from counsel for the appellant. Those issues were all concerned or somehow related to the possibility or, indeed, the later allegation that Mr Rayney murdered his wife. That issue has now been authoritatively resolved.
16. The issues to be resolved in this hearing are quite different and are quite constrained. Those issues are whether interlocutory orders should be made in relation to two appeals from a finding by the Tribunal of misconduct relating to Mr Rayney's recordings of conversations with his wife and the evidence which he later gave in the Magistrates Court in relation to those recordings. One appeal is from the finding of misconduct, and the other appeal is from the penalty imposed in respect of that misconduct.
17. For the purposes of this afternoon's proceedings the matters that are relevant are, firstly, the fact of those findings by the Tribunal and, secondly, the prejudice which Mr Rayney asserts that he and his clients will suffer if the orders are not granted. There will be no occasion this afternoon to form or express a view with respect to the merits or otherwise of the findings made by the Tribunal. Based on the submissions that have been exchanged by the parties, Mr Rayney does not mount a case for interlocutory orders on the basis that the findings of the Tribunal are manifestly and self-evidently flawed and erroneous, nor does the respondent oppose the relief sought on the basis that the appeals are hopeless or doomed to fail.
18. This afternoon's proceedings will be determined on the basis that, firstly, the Tribunal has made the findings that it has; secondly, Mr Rayney has the right to appeal from those findings; and, thirdly, the appeal can be assumed to be arguable. In that context the question to be resolved will be whether the specific aspects of prejudice asserted on behalf of Mr Rayney sustain all or some of the interim relief sought.
19. The fair-minded lay observer assessing the matters of which he would be cognizant pursuant to the presumption that we make in these matters would also bring to account that the issues to be resolved by me this afternoon are quite different in nature to the issues which were presented to me in connection with the investigation of Mr Rayney in 2007 and 2010. Further, for the reasons I have given, the provision of my statement to police appears to me to have no bearing whatever on those matters.
20. For these reasons, in my view, no fair-minded lay observer might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the issues which I am required to decide, and there is no impediment to me sitting to hear the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Ebner v The Official Trustee in Bankruptcy [2000] HCA 62 [6] (Gleeson CJ, McHugh & Gummow JJ).