Supreme Court of WA|2011-11-30|Before: Mr J

(This is a decision delivered orally on 17 October 2011 and edited from the transcript.)

1 The accused Mr Rayney is charged with the wilful murder of his wife, Corryn Rayney, who was at the time of her death a registrar of the Supreme Court. The indictment presented alleges that:

On or about 7 August 2007 at Perth, Lloyd Patrick Rayney wilfully murdered Corryn Veronica Ann Rayney.
And in the alternative account 1, that on the same date and at the same place Lloyd Patrick Rayney unlawfully killed Corryn Veronica Ann Rayney.

2 Mr Rayney has pleaded not guilty to the charges on the indictment. A trial will take place sometime next year with provisional dates having been set.

3 Mr Rayney applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (the Act), that the trial be a judge alone trial without a jury.

4 The grounds of the application (as set out in written submissions) are that it is in the interests of justice to grant the order for a judge alone trial based upon the following:

(a) the extent and the nature of pretrial publicity has created the danger of a prejudice against the accused;

(b) the accused wishes to waive his right of trial by jury as he is of the view that he will not receive a fair trial;

(d) due to the complexity and length of the trial, it is in the interests of justice that reasons be given for the decision.

5 The application is supported by a lengthy affidavit from Laura Marie Timpano sworn on 2 October 2011. The affidavit contains a considerable amount of material disclosing the extent of the media coverage of the death of the deceased, the investigations of the police and the charging of Mr Rayney.

6 There is a second affidavit sworn on 3 October 2011 by Mr J Sutherland, an experienced solicitor and barrister, who specialises in criminal law. This affidavit states that in Mr Sutherland's experience he has never known a person to be publicly identified by the police as a 'prime suspect' in a criminal investigation where the person has not be charged. This is in fact what occurred to Mr Rayney in September 2007, details of which I will deal with later in this decision.

7 The application by Mr Rayney for a trial by judge alone is opposed by the Director of Public Prosecutions.

8 An application for a trial by judge alone is provided for in s 118 of the Act which provides:

(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.

(2) Any such application must be made before the identity of the trial judge is known to the parties.

(3) On such an application, the court may inform itself in any way it thinks fit.

(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.

(5) Without limiting subsection (4), the court may make the order if it considers -

(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or

(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.

(6) Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.

(8) If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.

(9) If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.

9 The effect of the section is that a judge has a discretion to grant an order for a trial by judge alone if the judge considers 'it is in the interests of justice to do so', providing that if the application is made by the prosecutor, such an order is not to be made unless the accused consents. This proviso is, I believe, of some importance and I will return to this later in this decision.

10 The startingpoint is that the discretion is to allow a trial by judge alone. If the discretion is not exercised, the default position is that the trial will be a trial by jury. The discretion to order a trial by judge alone only arises if the court considers that it is 'in the interests of justice to do so'.

11 The concept of what is 'in the interests of justice' is one which should not be narrowly defined and will vary from case to case: Chapman v Jansen (1990) FLC 92139 (Nicholson CJ). It necessarily involves a judicial evaluation of a number of factors: BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; TVM v The State of Western Australia [2007] WASC 299 [25] (McKechnie J).

12 Section 118(5) and (6) provide some guidance as to what may be relevant, or a particular case even determinative, as to whether it is in the interests of justice to order or refuse an application for a trial by judge alone. However, both subsections specifically state that the factors listed do not limit the general operation of the concept of what might be in the interests of justice: The State of Western Australia v Martinez [2006] WASC 25 [5] (EM Heenan J).

13 In Western Australia there have been a number of decisions of this court which have expressed a difference of opinion as to what weight should be given to various factors when considering what constitutes the interests of justice in a particular case. Three decisions of importance in chronological order are the decision of EM Heenan J in Martinez, the decision of Martin CJ in Arthurs v The State of Western Australia [2007] WASC 182 and the decision of McKechnie J in TVM. All three judges are experienced judges of this court and their opinions must be given careful consideration. To some extent, I believe the differences can be partly reconciled but to the extent they cannot, I will express my own views concerning what I believe to be the proper factors to consider on such an application.

14 In Martinez, EM Heenan J refused an application for a judge alone trial. His Honour stated after considering the wording of the section:

This can only mean, in my view, that one should not approach an application for trial by Judge alone for a serious offence on the footing that there is a preliminary, presumptive or other inclination that trial by jury must be regarded as the preferential starting point. Rather, despite some initial inclinations to the contrary during the course of argument, I am satisfied that one should adopt a neutral position in relation to the preferred mode of trial on any such application and focus upon what are the interests of justice in the particular case. Doing that, as I consider I must, does not mean that one should ignore the expressions of view that cases involving community values, or a combination of factors upon which a judgment reflecting community standards is likely to be necessary, may be better taken by a jury of twelve than by an individual Judge. As earlier explained, s 118(6) of the Criminal Procedure Act 2004 gives recognition to the possible advantages of having a jury decide factual issues which require the application of objective community standards going beyond the five examples mentioned without treating that as being conclusive of any particular application [23]. (emphasis added)

His Honour concluded that on the charge of murder facing the accused persons in that case, there were advantages in obtaining a verdict from 12 people representing the community rather than a single judge [36].

15 In Arthurs, Martin CJ granted an application for a judge alone trial in circumstances where significant prejudicial statements had been made publicly about the accused. These included a false rumour that the accused had been involved in a notorious murder case in the United Kingdom 13 years earlier and had also been involved in another matter (not disclosed in the judgment). Martin CJ agreed with EM Heenan J that the application for a trial by judge alone starts from a neutral position as to the preferred mode of trial [67], but disagreed that cases such as homicide, in which the essential question was whether a particular person had committed an act, is a case which involves an evaluation based upon community standards and therefore preferable to that of single judge [65]. Accordingly, Martin CJ did not agree that in such cases there ought to be a preference for a jury trial.

16 In TVM, McKechnie J refused an application for a judge alone trial. The application had nothing to do with pretrial publicity but the feared prejudice in a murder trial on the basis that the accused and the deceased were homosexuals and Jehovah's witnesses. McKechnie J stated:

In summary, s 118(4) requires a court to do two things. The first is to consider, on information, whether it is in the interests of justice to grant an application for trial by judge alone. If the court so concludes, the next issue is whether to exercise a discretion to grant such an order. In the exercise of that discretion, but without limiting it, the matters, where relevant, contained within s 118(5) and s 118(6) become important.

All this leads me to conclude that, with great respect, I am unable to follow the principle in Arthurs and Martinez that in the resolution of the application a judge starts from a neutral position as to a preferred mode of trial. Instead, it is my view that on an application under s 118 a judge, concluding that it is in the interests of justice for a trial to be held before a judge alone instead of judge and jury, exercises a discretion whether to make the order for trial by judge alone [19] [20].

17 However, I do not believe these expressions of difference carry any significant consequence. In my view nothing said in these decisions is contrary to the clear wording of the section that the discretion is to order a trial by judge alone and if the discretion is not exercised then the trial is to be by trial by jury. What I understand both Martin CJ and EM Heenan J to be saying is that when considering what is in the interests of justice there is not a starting notion that trial by jury is generally preferable to trial by judge alone. Notwithstanding this neutral position, the applicant has the burden of convincing the court that it is in the interests of justice that an order be made for a trial by judge alone and that the discretion should be exercised in favour of such a trial.

Factors relevant to what is in the interests of justice.

18 Any consideration of what constitutes 'in the interests of justice' must necessarily take into account a broad range of considerations. The relevant factors are not capable of exhaustive definition. Further, the weight to be given to any individual factor will vary from case to case depending upon the nature of each case.

19 In Arthurs, Martin CJ suggested that it was relevant to take into account the subjective view of the accused as to whether or not he or she would receive a fair trial from a jury. Martin CJ stated:

It is, I think, entirely consistent with the interests of justice for weight to be given to the subjective views of an accused person, provided of course that they are not fanciful or irrational. Thus, in my opinion an apprehension by an accused person, which is not fanciful or irrational, that he or she may not get a fair trial by jury because, for example, of pre-trial publicity or because of their ethnic, religious, cultural or other peculiar circumstances, may be entitled to significant weight [79].

20 In TVM, McKechnie J expressed the view that a judge hearing an application under s 118 of the Act should be careful not to pay undue account of the subjective views of the accused or conversely, take undue account that a panel of 12 jurors is likely to bring a collective wisdom and evaluation of all the facts proved which would be preferable to that of any single judgment. McKechnie J stated:

One thing is clear: the interests of justice are not coterminous with the interests of an accused: R v Cox [1960] VicRp 102; [1960] VR 665:

'[T]he judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a very different matter.'

To pay undue account to the subjective views of an accused person, as suggested in Arthurs at [79], [80], may have the result that a decision is really being made for the interests of an accused, not the interests of justice. Conversely, to take undue account that a panel of 12 jurors is likely to bring a collective wisdom and evaluation of all the facts proved which would be preferable to that of any single judgment (Martinez [36]) unduly limits the general discretion to order trial by judge alone, reserving it in practical terms to the sorts of cases where it is often used and which I have earlier described [30] [32].

21 The position in the United States and Canada is to give primacy to the wishes of the accused. It is viewed in those countries that trial by jury is a right of the accused designed to protect the accused from the oppression of the State and the partiality of the courts. Being a right of the accused, it is accepted that the right can be waived: Patton v United States [1930] USSC 74; (1930) 281 US 276, 296; Singer v United States; [1965] USSC 34; (1965) 380 US 24; Reg v Crate (1984) 1 DLR (4d) 149; and Reg v Bryant (1984) 48 OR (2d) 732.

22 The High Court of Australia in Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171, rejected the notion that an accused could waive the right to trial by jury contained in s 80 of the Constitution. The issue in Brown's case was whether provisions in South Australia which gave the right of an accused to elect a judge alone trial were inconsistent insofar as federal offences were concerned with s 80 of the Constitution. Section 80 of the Constitution provides, relevantly, that the 'trial on indictment of any offence against any law of the Commonwealth shall be by jury'.

23 The minority (Gibbs CJ & Wilson J) in dissenting judgments were influenced by decisions in the United States and Canada that the right to a trial by jury should be viewed as a right of the accused which could be waived by the accused. The minority concluded that the provisions giving the accused the right to elect a judge alone trial were not inconsistent with s 80 as the section had been inserted for the purposes of providing protection to the accused and the accused person was thereby entitled to waive that protection: Brown [47] (Gibbs CJ), [10] (Wilson J).

24 The majority (Brennan, Deane & Dawson JJ) distinguished the precedents in the United States and Canada as being based on a context of other constitutional provisions which did not apply in Australia. Further, they found that the wording of s 80 was expressed in compulsory terms by the words 'shall be by jury'. Brennan J stated that at common law no waiver of the right of trial by jury is recognised [7]. Deane J stated the constitutional guarantee of trial by jury for federal offences was for the benefit of the community as a whole [2].

25 In an earlier decision of Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, Deane J emphasised the benefit of the trial by jury system to the community. Deane J stated:

The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury's deliberative processes, the jury's isolation (at least at the time of decision) from external influences and the insistence upon its function of determining the particular charge according to the evidence combine, for so long as they can be preserved or observed, to offer some assurance that the accused will not be judged by reference to sensational or selfrighteous pre-trial publicity or the passions of the mob [51] [52].

26 Notwithstanding the views expressed by the High Court majority in Brown and Deane J in Kingswell, the Parliament in Western Australia has clearly seen fit to provide that for State offences a trial by judge alone can be ordered. However, it is not simply a question of the accused having a right to waive his right to trial by jury. The formula provided by s 118 requires the court to first reach the conclusion that it is in the interests of justice that there be a trial by judge alone and then, having reached that conclusion, the court has a discretion to make such an order. Although it is not simply a question of the accused waiving his right, I agree with the Martin CJ in Arthurs that weight should be given to the subjective views of the accused. I believe the history of the system of the jury trial suggests that primarily it involves a protection and a right of the accused. In my view, this is partly recognised in s 118 by the fact that a judge cannot make such an order for judge alone trial unless the accused gives his consent or makes the application. But, as pointed out by McKechnie J in TVM, the subjective wishes of the accused do not necessarily determine the outcome of an application. The interests of justice involve other considerations including providing a trial that is likely to be perceived by the wider community as fair and independent.

27 In Arthurs' case, Martin CJ suggested that the obligation of a judge sitting without a jury to provide detailed reasons for a decision may be relevant. Martin CJ stated:

Nevertheless, the obligation of a Judge sitting without a jury to provide detailed reasons for decision may, in a particular case, be a significant consideration in favour of the grant of an application [76]. (emphasis added)

28 McKechnie J in TVM [32] rejected this. In his view the giving of reasons was of no consequence as there were counter balancing factors in favour of a jury trial without reasons. He considered both modes of trial were equally valid.

29 Although, in my view the fact that a jury does not give reasons is generally compensated by the fact that the jury's verdict must be unanimous (or at least of 10 members of the jury in the case of a majority verdict), it seems to me that the views of Martin CJ and McKechnie J can, to some extent, be reconciled. Martin CJ did not indicate the type of cases where the absence of reasons by a jury may be a significant factor in making an order for a trial by judge alone. In most cases the fact that reasons are given may not provide any comfort to an accused or to the community. However, a relevant consideration whether it is in the interests of justice to make an order for a judge alone trial may be the complexity or technical nature of the evidence (see s 118(5)). In such cases, it may be appropriate to order a trial by judge alone partly on the basis that the accused wishes reasons to be given to ensure that whatever verdict is reached it is based on a correct comprehension of complex or technical evidence. Again the cases where it may be in the interests of justice for reasons to be given cannot be exhaustively defined.

30 It is axiomatic that an overarching consideration in considering whether it is in the interests of justice to grant a request for trial by judge alone is whether the accused can receive a fair trial by jury. Mickelberg v The Queen (No 3) (1992) 8 WAR 236, 251; The State of Western Australia v Veskovich [2005] WADC 111; TVM [29].

31 A common example of where the issue of fairness arises is where pretrial publicity has created an environment in which the accused contends he cannot receive a fair trial: see TVM [29]; Arthurs [86] [87]; and Martinez [31] [34].

32 In Martinez, EM Heenan J, although stating that pretrial publicity most frequently is adequately dealt with by a warning from the trial judge, stated:

It seems to me that trial by Judge alone may, in a particular case, be an effective antidote to a public climate of hostility or prejudice which may have been engendered by pre-trial publicity and, in that situation, that it would be in the interests of justice to order trial by Judge alone [33].

His Honour went on to find that the nature and extent of the publicity in that case, while significant, was not of a nature 'to encourage prejudgment, prejudice or hostility'.

33 In TVM McKechnie J emphasised the extent and nature of the publicity may create an unfair trial. In some cases this can be cured by a direction but in other cases it is in the interests of just to order a judge alone trial. McKechnie J stated:

It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear [29].

34 The issue of pretrial publicity in an application under s 118 has different considerations to an application made to stay a prosecution or adjourn a trial due to pretrial publicity. The test on an application to stay or adjourn a trial is whether it is necessary to grant the application in the interests of ensuring a fair trial: see R v George (1987) 9 NSWLR 527, 532 533 (Street CJ, Yeldham & Finlay JJ agreeing); The State of Western Australia v BLM [2009] WASCA 88 (Buss JA, with whom Owen, Wheeler & Pullin JJA agreed). It is a ground that rarely succeeds. The reason for this is that an order staying or adjourning a trial can have serious repercussions of unfairness to the State and witnesses. Instead the law proceeds on the footing that the jury will receive and follow a direction from the trial judge to ignore any publicity or preconceived ideas and render a verdict based upon the evidence in court only: BLM [70] [73]; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344; R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 603 (Mason CJ & Toohey J). In Glennon Brennan J stated that '[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors' in such circumstances (614) (my emphasis added). However, in an application under s 118 the State or witnesses will not suffer any unfairness if an order for a trial by judge alone is ordered. For this reason I believe there is more scope to take into account the potential of an unfair trial due to publicity and that a jury may not be able to put aside the influence of pre-trial publicity. The law is not driven by the same necessity to rely upon the jury system because on such an application the potential prejudice created by pre-trial publicity can perhaps be removed more effectively by the alternative mode of trial available: see Arthurs [87]. Accordingly, I believe that the law was correctly stated by EM Heenan J in Martinez when he said that an order for a trial by judge alone may be appropriate where there is 'a public climate of hostility or prejudice' [33].

35 Again I believe the subjective views of the accused should also be taken into account if there is objective material suggesting a genuine concern that the accused may not receive a fair trial.

36 There are other factors which may become relevant to the question of whether it is in the interests of justice that a trial be conducted by judge alone. These factors may not be personal to the accused but involve wider considerations concerning the administration of justice: see Mickelberg.

37 The length of the trial may be a relevant consideration. There is not necessarily any saving in time depending upon which mode of trial is used: see Martinez [29]. However, trials of an extreme length create their own special problems. Firstly, there are jury selection problems in finding sufficient jurors who do not have legitimate commitments which would prevent them from sitting as a juror for a long period. Secondly, in some cases, the length of the trial may simply place too great a burden on jury members physically, mentally and emotionally: s 118(5)(a) of the Act. Such trials would be rare, but certainly the potential burden on jurors is a relevant factor in trials of extreme length. Thirdly, the greater the length of the trial, the greater the risk that an injustice will be created to the accused by the potential that a jury will be unable to reach a verdict if the jury is discharged for some reason (for example a hung jury). An advantage in such circumstances in favour of a trial by judge alone is that the accused is generally guaranteed a result (except in the rarest of cases where a judge is unable to complete a case due to illhealth or death). Again, I believe the apprehension of the accused is a relevant consideration to be taken into account.

38 Another issue is whether, in circumstantial evidence cases, there is a public interest in such trials being conducted before a jury. In Martinez, which was a circumstantial evidence case, EM Heenan J appears to take the view that there are advantages in such cases being heard by a jury [36].

39 Both Martin CJ in Arthurs [61] [67] and McKechnie J in TVM [15] took a different view. Both conclude that a preference for a trial by jury did not arise simply because the States case was based upon circumstantial evidence. In my view this is correct. I see no reason why either mode is preferable simply because the matter is a circumstantial evidence case. Circumstantial evidence cases most often involve stringing together a multitude of facts in order to reach a guilty verdict. In some cases the sheer quantity and complexity of evidence may make the trial unreasonably burdensome on a jury as suggested by s 118(5)(a). However, as a general rule I do not believe it can be said one method of trial is preferable to the other.

40 The State has filed an affidavit of Emily Joan Winborne sworn on 13 October 2011 which annexes material which discloses the nature of the State's case in these proceedings. It is clear that the State's case is by its nature a circumstantial evidence case. There is no need for me in this decision to summarise it in detail.

41 The State intends to adduce a large quantity of forensic evidence at the trial from various experts and police officers to establish that on the deceased and her clothing were found items linking her to the family home at 6 Monash Avenue, Como at the time of her death. This evidence will include expert evidence about the scuff marks on the deceased's boots. There will be other evidence presented of red brick particles, soil, red paint fragments, green polyurethane traces and plant material found on the deceased's body and clothing and at the family property at 6 Monash Avenue, Como.

42 The details of the pretrial publicity relied upon in support of Mr Rayney's application are set out in the affidavit of Ms Timpano sworn on 3 October 2011. The details provided are extensive and in this decision I only purport to give an outline sufficient to demonstrate the nature of the publicity but not necessarily the extent of the publicity.

43 The initial media coverage of the death of Mrs Rayney did not include any direct or indirect suggestion that Mr Rayney was involved in his wife's death. According to the indictment, Mrs Rayney died on or about 7 August 2007. The media interests in the case commenced from 8 August 2007 when Mr Rayney reported his wife missing. Initial media coverage included comments from the Attorney General stating that Mrs Rayney's disappearance was not believed to be connected with her work at the Supreme Court. On 12 August 2007, Mr Rayney appeared with Mrs Rayney's sister before the media requesting the public's assistance in police inquiries into the disappearance of Mrs Rayney. This media statement was widely recorded on television and in newspapers in Western Australia.

44 On or about 15 August 2007, the police located the vehicle of Mrs Rayney in Subiaco and by tracking back an oil leak from the vehicle eventually were able to locate a grave in Kings Park in which the body of Mrs Rayney was found. These events were given prominent coverage in all forms of the media. The then Attorney General, Mr McGinty, was quoted in newspaper reports (The Australian on 17 August 2007) as stating:

To have a senior officer from the State superior court murdered is absolutely shocking and I'm sure it will have sent shockwaves through the whole of the court system.

45 Media reports included stating that Mr and Mrs Rayney were estranged but they continued to live with each other. Also there were reports that Mr Rayney was home with his two daughters on the night Mrs Rayney disappeared and that the police had no suspects.

46 On 20 August 2007, there were newspaper reports that the Police Commissioner, Karl O'Callaghan, had stated that there were a number of persons of interest but he was not prepared to give information about potential suspects.

47 On 22 August 2007, there was a newspaper report in The West Australian stating:

The murder of Corryn Rayney has sparked a wave of speculation in Perth not experienced since the evil deeds of the Claremont serial killer gripped the State in the 1990s.

Corryn Rayney probably knew her killer, police said yesterday, in a revelation which means the investigation will now focus on her colleagues, friends and acquaintances.

48 On 23 August 2007, there was a front page photograph of Mr Rayney and an article which stated amongst other things:

The investigation into the murder of Perth mum Corryn Rayney took a sensational twist last night when it was revealed she warned her friends hours before she was killed that she had just had a heated confrontation with a man.

It also emerged that Mrs Rayney had forwarded to friends a series of threatening emails she had received over recent months and asked them to send the correspondence to police if anything should happen to her.

The article went on to state that the police insisted that Mr Rayney 'was not a suspect and that speculation about his involvement may be detrimental to this investigation'.

(c) Police identify Mr Rayney as a person of interest

49 On 29 August 2007, Detective Senior Sergeant Lee was reported as saying that Mr Rayney was 'a person of interest but not a suspect in the death of his wife'. Detective Senior Sergeant Lee further stated that 'a suspect indicates that there is some level of evidence against a person having committed a crime, there is no evidence against Mr Rayney having committed any crime, he is not a suspect'. This statement by Detective Senior Sergeant Lee was widely reported.

50 On 2 September 2007, there was extensive media coverage of Mrs Rayney's funeral. One such report in The Sunday Times stated:

The police have described Mr Rayney as a person of interest in his wife's murder, but not a suspect. It is understood the couple were in the process of separation.

51 In an article in The West Australian newspaper on 6 September 2007 it was stated:

With the city awash with rumours about the highest profile murder investigation since the Claremont serial killings, police have closed ranks as they plough through forensic information and follow hundreds of leads offered by the public.

52 The same report quoted Mr Guy Hall, an Associate Dean at Murdoch University School of Law as saying that Mrs Rayney probably knew her killer. He was quoted as stating:

For the overwhelming majority of situations where a woman such as Mrs Rayney gets murdered the offender knows the victim very well. Normally intimately.

In this case, the body was buried deeply and it seems things were done very carefully. Whoever did this knew what he was doing.

53 There was numerous media reports repeating that Mr Rayney was a person of interest and that the police were confident of 'solving the crime'.

(d) Police name Mr Rayney as the prime and only suspect

54 On 20 September 2007, the police called a press conference in which Detective Senior Sergeant Lee stated that Mr Rayney was being charged with an offence under the Surveillance Devices Act 1998 (WA), s 5. Detective Senior Sergeant Lee, during the course of a media conference stated that Mr Rayney was the prime and only suspect in the murder investigation of his wife. In answer to questions Detective Senior Sergeant Lee also stated that there were a number of other persons of interest. He also stated that police believed that it was likely Mrs Rayney was murdered at her Monash Avenue home in Como. It was also stated that Mr Rayney had not cooperated with police that day, that he was arrested at his home and the police had to force entry into the house. During the course of the media conference Detective Senior Sergeant Lee also said that Mr Rayney had prevented the police from interviewing his two daughters.

55 Following this media conference there was extensive media coverage of Detective Senior Sergeant Lee's comments. For example, on 21 September 2007 The West Australian ran a front page photograph of Mr Rayney and the headlines, 'Prime suspect'. There were further articles at pages 6 7 of the newspaper. The front page repeated the accusation that Mr Rayney had refused to allow police access to his two daughters.

56 On 21 September 2007, Mr Rayney's solicitors issued a press statement. This statement indicated that Mr Rayney wished to make it clear that he had no involvement in the tragic death of his wife. He was enormously distressed that the police, in focusing their attention on him, may never catch the person who robbed his and Corryn's children of their beloved mother. The statement also refuted that Mr Rayney had refused to cooperate with the police. The statement concluded by stating:

Mr Rayney regrets that it is necessary to authorise the making of this statement. He does not wish to join the police in dealing with this tragedy through the media.

57 On 23 September 2007, The Sunday Times, reported in a front page story:

WA Police Chief has challenged murder suspect Lloyd Rayney to let detectives interview his daughters 'unless he's got something to hide'.

58 Subsequently, there were reports in the media debating whether the police had acted correctly in stating that Mr Rayney was the prime and only suspect and alleging that he failed to cooperate with police. Statements were made to the media from the President of the Law Society and the President of the WA Bar Association criticising the police for naming Mr Rayney as a suspect. Mr Rob Johnson, the then Opposition Justice Spokesman, was reported as being critical of the Law Society. He was quoted as saying:

If it had been any other person, Mr Joe Public, you wouldn't see all the lawyers acting and making the comments they are.

59 On 25 September 2007, The West Australian newspaper contained a front page article which reported as follows:

Police are convinced that Corryn Rayney was killed in the family's Como house because they believe they have evidence that her body was dragged from the house, through the garden to her silver Ford Fairmont in which she was taken to at Kings Park and buried.

60 The focus of the media continued on the case as there were reports of Mr Rayney's appearances in court on the Surveillance Devices Act charge. Public interest was further maintained by press reports that the police sought files relating to Ms Gina Rinehart, a client of Mr Rayney's (ts 247).

61 On 4 November 2007, a report in The Sunday Times stated the police investigators into the murder of Mrs Rayney had raided the house of an 'underworld figure'. The article stated:

The bikie associate, who has been accused of murder in the past, was a defendant in a case that was handled by Mrs Rayney's lawyer husband, Lloyd.

He is understood to have been questioned by detectives for more than eight hours about whether he was involved in the death of Mrs Rayney, a Supreme Court Registrar, two months ago.

On the same page was a report pertaining to the Surveillance Devices Act charge against Mr Rayney.

62 On 17 November 2007, The West Australian reported that Mr Rayney had given an interview on the television news show 'Today Tonight' on Channel 7 criticising police for destroying his life and leaving his reputation in tatters. Also in the interview Mr Rayney proclaimed his innocence.

(e) Continuing media interest in the Rayney case

63 In continuing the media's focus on the Rayney case there was extensive reporting that Detective Senior Sergeant Lee had been transferred to Karratha. A report stated that the transfer was not linked to his handling of the Rayney case.

64 Further media coverage of the murder case was generated from another person also being charged in relation to the Surveillance Devices Act. There were also further media reports of police returning to Mr Rayney's house searching for further forensic evidence including plant cutting samples. In The West Australian on 3 April 2008 there was a prominent article with the headlines, 'Police hunt for second will in Rayney Mystery'.

65 On 20 April 2008, there was a front page article in The West Australian with the headlines, 'Rayney's Dad: Let my grandkids talk to me'. The article stated:

The father of murder victim Corryn Rayney has raised questions about why her estranged husband, prominent Perth lawyer Lloyd Rayney, has refused to cooperate with police by blocking detectives from speaking to their two daughters.

A further headlined portion of the article on page 1 stated:

If I had my way, I would have no objection for them to be interviewed.

66 In May 2008, further media interest was generated by suggestions that Mr Rayney was considering a defamation action against the police. For example, there was a front page article with photographs in The West Australian on 20 May 2008.

67 In August 2008, there was further media reports of the police investigation into the matter. One article in The West Australian reported that a friend of Mrs Rayney was also a suspect.

68 On 5 August 2008, there was a large threepage article in The West Australian on page 3 under the headlines, 'Angry Rayney girls deny dad stopped them talking to police'.

69 On 10 August 2008, The Sunday Times contained an article under the heading, 'Murder and PR games', where a journalist compared the murder investigation into Mrs Rayney's death as 'murder entertainment'. The article stated:

The police name Mr Rayney as the 'prime suspect' last October. It was an unprecedented step in one that has left him with a ruined reputation and no chance of a fair trial in WA.

70 In September 2008, there was wide scale reporting of Mr Rayney issuing a writ of defamation against police. One article compared the serving of the writ as a move that 'could see him face allegations in an OJ Simpson style trial in a civil court'. The issue of the defamation proceedings generated extensive media coverage. After the issue of the writ occurred the level of publicity declined with the police not being willing to make further statements.

71 On 8 December 2010, Mr Rayney was arrested near the Bell Tower in the centre of Perth and was later charged with the murder of his wife Mrs Rayney. The arrest and charging of Mr Rayney received widespread media coverage including a description of the arrest process by a passerby who had recognised Mr Rayney.

72 There was also wide coverage of Mr Rayney's initial court appearances and then subsequent application for bail by Mr Rayney. During one of the initial court appearances, senior counsel for the prosecution was reported as advising the court that the case against Mr Rayney was circumstantial and compelling.

73 The affidavit of Ms Timpano states that a search on the search engine Google on the 27 September 2011 under the name Lloyd Rayney delivered 11,700 results, 1,340 photographs and 24 videos.

74 Similarly, a search on 27 September 2011 on the internet search engine Yahoo under the name 'Lloyd Rayney' delivered 14,700 results, 34 images and 21 videos.

75 The affidavit also annexed extracts from two books where the murder case of Mrs Rayney were mentioned. The first publication was a book entitled 'Mad Bad and Mysterious - Murder, Rape and Pillage in Australia' which devoted a chapter to the murder of Mrs Rayney. A second book entitled 'Never Alone - a Medium's Journey' also included a reference to the Rayney murder investigation.

76 There were also details in the affidavit of Ms Timpano of extensive coverage of Mr Rayney's case on internet websites and social chat sites. It is clear from this material that there has been extensive comment and speculation by members of the public as to whether Mr Rayney is guilty of the murder of his wife. There are numerous expressions of opinion by people that Mr Rayney is guilty.

77 Also the affidavit of Ms Timpano contains descriptions of episodes experienced by Mr Rayney where he has been confronted by people accusing him of being the murderer of his wife.

78 The listing certificate filed by the State in this matter estimates the trial will last 100 days. A listing certificate filed on behalf of the accused estimates that with cooperation the trial may be reduced to 30 45 days.

79 Of course it is not unusual for the trial juries to be for a very lengthy periods. The R v Petroulis (No 36) [2008] NSWSC 626 trial (tax fraud) in New South Wales occupied six months and a terrorist trial in Victoria occupied 115 days and 22 days of deliberations (see ex curial paper by the Hon Justice Peter McClellan at the National Judicial College of Australia conference on 25 October 2008). The written submissions of the State cite other examples including the 'Snowtown Murders' trial in South Australia in 2003 that occupied 11 months of evidence.

80 Although there will be a number of expert witnesses called by the State and possibly by defence, much of the nature of the evidence is comparing forensic samples taken from the deceased's body and clothing with forensic samples taken from other localities. Such evidence is not unduly complex although quite detailed.

81 There are many decisions in which the merits of the jury system have been espoused: see for example Heydon J in AK v the State of Western Australia [2008] HCA 8 [90] [98]. Such things as the independence of a jury selected randomly, the bringing together the collective wisdom of 12 members of the public, and the advantage of requiring a unanimous decision as opposed to a decision of a single judicial officer, have been often stated. For my part I agree with these assessments of the advantages of the jury system. However, endorsement of the jury system has not been universal: see AK [91] (Heydon J).

82 For the purpose of this decision, and consistent with Arthurs' case and Martinez's case, I do not base my decision on comparing or evaluating in a general way the respective merits of a trial by jury and a trial by judge alone (see also R v GSR (No 3) [2011] NSWDC 17 [15] (Woods DCJ)), but start from a neutral position.

83 In considering what is in the interests of justice, I turn first to the issue of the length and complexity of the trial. I do not consider either factor is persuasive in this case that it is in the interests of justice that there be a trial by judge alone. Although the trial will be a relatively long trial and will involve some technical evidence, I do not believe the trial is likely to be unreasonably burdensome on a jury. Likewise I do not believe that the complexity of the evidence is such that it is preferable that reasons be given.

84 Secondly, consistent with the views I have expressed earlier in this decision, I do not believe the circumstantial nature of the trial suggests that either mode of trial is preferable.

85 Senior counsel for Mr Rayney has made it clear in his oral submissions that the main ground of the application by Mr Rayney is that the pretrial publicity has created a serious risk of an unfair trial which should be averted by an order for a trial by judge alone. It is submitted on behalf of Mr Rayney that a major cause of the prejudice created against him arises from what is described as the 'unprecedented' move of Detective Senior Sergeant Lee on the 20 September 2007 naming Mr Rayney as the prime and only suspect.

86 The submission of senior counsel for the State, Mr Agius, is that any pretrial prejudice against Mr Rayney is not of a degree that it is likely to cause an unfair trial and can be guarded against by a strong direction by the trial judge. It is contended that this conclusion is in accordance with such authorities referred to earlier in this decision which indicate that juries are capable of excluding prejudicial material. Mr Agius distinguished the factual situation in Arthurs' case, where a trial by judge alone was ordered, on the basis that in Arthurs' case there had been extensive pretrial publicity of false accusations that the accused had committed other serious crimes.

87 Mr Agius acknowledges that the announcement by Detective Senior Sergeant Lee was prejudicial to Mr Rayney but submits this prejudice has been neutralised by a number of factors. Firstly, the prejudice of the announcement of Detective Senior Sergeant Lee, although repeated in the press on a number of occasions, has been eased by the passage of time. Secondly, once a person is charged that is equivalent to the police announcing a person is the prime and only suspect. Accordingly, the prejudice suffered by Mr Rayney by being named as the prime and only suspect has now been absorbed by him being charged. Thirdly, it is anticipated that Mr Rayney's counsel will seek at the trial to use the naming of Mr Rayney as the prime and only suspect as a positive to the defence case by alleging the police conducted their enquiries in a blinkered fashion.

88 However, in my opinion the real prejudice created by the police announcement was that it heightened the media's and the public's interest in the case and spurred speculation and debate in the community as to Mr Rayney's guilt over a sustained period. The period of time between the naming of Mr Rayney as the prime suspect and him being charged (a period of over three years) has meant that the prejudice created against Mr Rayney is likely to have become well entrenched.

89 The naming of Mr Rayney as the prime and only suspect also placed considerable pressure on Mr Rayney to respond in the media to defend his reputation and attempt to negative the prejudice against him. Mr Rayney's decision to respond via the media in part created more publicity and potentially heightened the prejudice against him.

90 The landscape of public opinion against Mr Rayney was further significantly affected by the police accusing Mr Rayney of not cooperating with police by denying police access to Mr Rayney's two daughters and stating publicly that in the opinion of investigating police Mrs Rayney was killed at her home.

91 The extent of public speculation about Mr Rayney is to some extent revealed by the internet material contained in the affidavit of Ms Timpano, although I acknowledge, as submitted by senior counsel for the State, that the material is only a snap shot of public opinion and possibly only represents the opinions of persons holding extreme views.

92 The question of prejudicial publicity is inevitably one of degree: TVM [33]. It is not necessary that the publicity be in the nature of the publicity of Arthurs' case for an applicant to be successful: TVM [29]. Having considered all the publicity material contained in the affidavit of Ms Timpano, I conclude in this matter that the extent and nature of the pretrial publicity has been exceptional. I conclude, that the pretrial publicity has created a community climate where there has been speculation about Mr Rayney's guilt and created an atmosphere of prejudice against Mr Rayney. There is a real potential that jurors will have formed strong preconceived ideas about his guilt prior to trial. I take into account that Mr Rayney has this apprehension and the primary basis of his application is that there is a risk of an unfair trial. Although the courts in the past have placed great faith in juries to follow directions and put aside preconceived ideas or prejudice, in a case like this I believe that the best cure of the danger of such prejudice is to order a trial by judge alone.

93 I accept that there is a countervailing public interest factor in this case which requires consideration. This arises because the deceased Mrs Rayney was a Registrar of this court at the time of her death and Mr Rayney is a wellknown barrister who has appeared as counsel in this court. The Chief Justice of Western Australia will also be called by the State to give of evidence. Also a number of lawyers will be called who either knew the deceased or Mr Rayney. Because of these circumstances the court has informed the parties that it will make appropriate arrangements to ensure that any judge who hears this case (whether by trial by jury or judge alone) will be suitably impartial and who is seen to be impartial. One possibility is that a judge from outside the State of Western Australia will be appointed an acting judge to conduct the trial. The State's submission is that the best guarantee of obtaining an impartial verdict is by having a jury trial where 12 persons selected at random are to decide the case. It is argued that such a process is likely to be more universally approved by the general public. However, in my opinion, this public perception issue must give way in this case to issues which go directly to the question of the accused receiving a fair trial. From the State's point of view, it cannot be said that there is any unfairness if the trial proceeds on a trial by judge alone basis. Further the obligation to give reasons in the event of a trial by judge alone will give added transparency to any verdict and should dispel any reasonable public perception issues.

94 For the above reasons, I conclude that it is in the interests of justice that there be a trial by judge alone and hereby exercise my discretion to make such an order.

Judgment Suppressed [2011] WASC 326 (17 October 2011)

At a glance

Court

Decision date

Before

Source

Judgment (138 paragraphs)

Factors relevant to what is in the interests of justice.

(c) Police identify Mr Rayney as a person of interest

(d) Police name Mr Rayney as the prime and only suspect

(e) Continuing media interest in the Rayney case

Legislation Cited (2)

Cases Cited (7)