LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [2016] WASAT 142 (19 December 2016)

LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [2016] WASAT 142 (19 December 2016) - WASAT 2016 case summary — Zoe

[201]

[83] It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial.

...

[101] In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.

[102] The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.

[468]

Ground 1 of the LPCC's referral is that Mr Rayney engaged in professional misconduct by recording conversations between himself and Mrs Rayney on a dictaphone without the knowledge or consent of Mrs Rayney in contravention of s 5(1) of the Surveillance Devices Act 1998 (WA). Grounds 2 and 3 of the LPCC's referral are that Mr Rayney engaged in professional misconduct by swearing an affidavit, and giving evidence on oath, when he knew, or was recklessly indifferent to whether, the evidence was false.
Each of the three grounds relate back to a single issue: whether the dictaphone recordings were made with Mrs Rayney's knowledge and consent.
The substance of the evidence that is alleged to be false, in Grounds 2 and 3, is Mr Rayney's assertion that the dictaphone recordings of conversations with Mrs Rayney were made with her knowledge and consent. It is the lack of knowledge and consent that grounds the allegation, in Ground 1, that the recordings were unlawful because they were made in contravention of the Surveillance Devices Act 1998 (WA).
The question whether the dictaphone recordings were made with Mrs Rayney's consent - which is the critical issue in the LPCC proceeding - was not in issue at the hearing of Mr Rayney's review application. The Tribunal's decision records, at [122], that it was unnecessary to make findings as to whether the recordings were made with or without Mrs Rayney's consent.
It is also evident that in Mr Rayney's review proceedings:
- Counsel for the Board informed the Tribunal that the use of the dictaphone to record conversations between Mr and Mrs Rayney was not an issue before the Tribunal (Exhibit C pages 420421).
- Counsel for the Board informed the Tribunal that he did not propose to cross-examine about, and did not propose to litigate, matters that were not in issue in Mr Rayney's review proceedings (Exhibit C page 481).
- When Mr Rayney was cross-examined there was no challenge to his evidence that the dictaphone recordings were made with Mrs Rayney's consent (Exhibit C pages 566577).
Also emphasising the difference in the nature and substance of the issues in Mr Rayney's review proceedings and the LPCC proceedings is that, in the review proceedings, no party submitted that the Tribunal should listen to the dictaphone recordings (Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 at [432]. Presumably the Tribunal did not do so. But the recordings themselves are critical evidence for the purpose of the LPCC proceedings. Before Magistrate Flynn and Brian Martin AJ the recordings themselves were critical to the findings in those proceedings that the dictaphone recordings were made without Mrs Rayney's consent (Ex parte AW (unreported; 17 December 2009; Flynn SM) [35], [40] & [40(e) and (f)]; State of Western Australia v Rayney (No 3) [2012] WASC 404 [643], [651] & [654] (see also at [641])).

[477]

CUERDEN MR: And I should have asked you this and said this, but your position is that in relation to the conversations that you recorded with your late wife, they were all with her consent? - - - Yes.

CUERDEN MR: And of those nine conversations on the Dictaphone and then on the disc, seven were faceto-face discussions you had with her? - - - Yes.

Correct? And two of those were telephone conversations between you and your late wife that you recorded? - - - Yes.

And your evidence is that on each of those nine occasions before the conversation you obtained her consent to the recording? - - - Yes.

But her giving the consent wasn't recorded on the recording? - - - That's right. Not - not - not a given consent as in words. The very first time I told her what I intended, she had agreed, and every time thereafter she had agreed by participating (indistinct)

Okay. So it was a standing consent, in effect? - - - If you want to (indistinct)

Before the first conversation, which is probably back in April - - -? - - - Yes.

- - - you said to your wife, 'Do you mind if I record this conversation', or words to that effect? - - - No, not at all like that.

How did it go? - - - We had been arguing; bickering, I suppose, is the best way - myself equally as guilty as Corryn, but some things small, some things major, and each of us said to the other, 'But that's not what I said; I said this', and - and so important things we just hadn't reached agreement both about what we said and what we said before and it was in one of these situations that I said to Corryn, 'I'm going to make a record of what we said', I recall.

And so you then went and bought a Dictaphone? - - That's right.

And you bought a - it was a digital Dictaphones, wasn't it, that you bought? - - - It was one - yes, without a cassette.

It didn't require the microcassette? - - - That's right. Yes.

So you went off to Dick Smith or one of those electronic retailers and bought a relatively inexpensive digital Dictaphone? - - - Yes.

Can you - do you have any recollection of the cost or the approximate cost? - - - I - I remember that it wasn't expensive. It was cheap. I can't tell you the cost.

And - - -? - - - But if I had to guess, maybe $50, something less than that.

And then after you had acquired that Dictaphone, you then told Corryn - I should say Mrs Rayney - that you had acquired a Dictaphone for the purpose of recording your conversations? - - - No.

So how did it go? - - - The first time I used the Dictaphone, I produced it, showed it to her and recorded. She had previously agreed and that's what I did.

Okay. And she could see it because it was out in the open? - - - Yes .

So that was a face-to-face conversation? - - - Yes.

And on each of the seven face-to-face conversations that were recorded that's what you did. You took the Dictaphone out and you placed it in open view? - - - (indistinct) was there and of those seven, some of them may have been recordings on the same day.

Yes? - - - (indistinct) actual period of time.

And the two telephone conversations that were recorded, obviously she couldn't see the Dictaphone as being present? - - - Yes.

Did you say to her - did you tell her that you were recording the conversation? - - -I can't remember the exact words I said, but I definitely made it known to her.

You definitely? - - - Made it known to her.

Okay. Separately on each of those occasions you made it known? - - - (indistinct)

By saying - because obviously she couldn't see anything in terms of what you were doing? - - -Yes.

You said to her words to the effect, 'Corryn, I'm recording this conversation'? - - - If not that, 'There will be a record of' words to that effect, which I took that she would understand.

Conveying to her that it was being recorded and she agreed with that? - - - She didn't disagree.

No? - - - She never said (indistinct)

She acquiesced in it after you told her? - - - (indistinct)

BENNETT, MR: The witness hadn't finished the answer.

CUERDEN, MR: Okay. Fair enough.

THE WITNESS: You asked me if she agreed. She didn't - she never said, 'I agree with you accordingly', but she had on the first time agreed and thereafter in person it was visible. She could see it. She knew what was happening, And the phone discussion, I thought that what I had said had made it apparent that that's what I was doing, but she never said, 'I agree with you accordingly'.

Okay. So in relation - - -? - - - So it was implicit when she did continue to talk, that she knew that that was happening.

In relation to the phone conversations, you made it known that you were either recording it or making a record of it? - - - Yes.

And she continued? - - - Yes.

She acquiesced in you recording, in effect? - - -That's right. (indistinct).

...

(Exhibit C pages 566569)

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LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY [2016] WASAT 142 (19 December 2016)

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