AW v Rayney [2010] WASCA 161

Braysich v R [2011] HCA 14; (2011) 243 CLR 434

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Dixon v Legal Practice Board of Western Australia [2012] WASC 79

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

In re Davis [1947] HCA 53; (1947) 75 CLR 409

Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56

Law Society of NSW v Foreman (1994) 34 NSWLR 408

Legal Profession Complaints Committee and Wells [2014] WASAT 112

Legal Profession Complaints Committee v Bachmann [2011] WASC 309

NOM v Director of Public Prosecutions (2012) 38 VR 618

Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151

Re Mulligan; Ex parte Isidoro [1979] WAR 198

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517

Smolarek v Roper [2009] WASCA 124

Sudath v Health Care Complaints Commission [2012] NSWCA 171; (2012) 84 NSWLR 474

That's Entertainment (WA) Pty Ltd v Commissioner of Police [2013] WASC 75

The State of Western Australia v Rayney (No 3) [2012] WASC 404

The State of Western Australia v Rayney [2013] WASCA 219

Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

1 The year 2007 must have been a nightmare for Lloyd Rayney. His father died. His marriage was in difficulties. His wife was murdered and he was named as the only suspect in her murder.

2 Over subsequent years, Mr Rayney faced a number of criminal trials and multiple court appearances.

3 On 14 July 2012, Mr Rayney's trial for wilful murder commenced. He was acquitted on 1 November 2012. The State appealed the acquittal. The appeal was dismissed. In April 2015 he was tried for telephone interception. He was acquitted.

4 When Mr Rayney sought to resume legal practice after these acquittals and the dismissal of the appeal, the Legal Practice Board of Western Australia (the Board) cancelled his local practising certificate (practising certificate) from 21 July 2015.

5 Mr Rayney now seeks a practising certificate by order of this Tribunal.

6 Mr Rayney made an application to the Tribunal dated 20 July 2015, pursuant to s 78(a)(ii) of the Legal Profession Act 2008 (WA) (LP Act), to review the decision of the Board dated 17 July 2015 to cancel his practising certificate.

7 The issue for determination by the Tribunal is whether the available information is sufficient to satisfy the Tribunal that Mr Rayney is a fit and proper person to hold a practising certificate under the provisions of the LP Act.

8 Section 403(1)(b) of the LP Act provides that 'professional misconduct' includes:

conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (Tribunal emphasis)

The Board must not grant a local practising certificate unless it is satisfied that the applicant ­

is a fit and proper person to hold the certificate.

(1) This section has effect for the purposes of section 45 or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.

(2) The Board may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section[.]

(3) A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Board consider that the circumstances warrant the determination.

The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in this Part ... ­

12 The effect of s 465 of the LP Act is that the matters relevant to whether a person is 'fit and proper' are not circumscribed by specific matters set out in the LP Act.

The legislation ­ the procedure for cancelling a practising certificate

If the Board believes a ground exists to amend, suspend or cancel a local practising certificate (the proposed action), the Board must give the holder a notice that ­

(a) states the proposed action ...

(b) states the grounds for proposing to take the proposed action; and

(c) outlines the facts and circumstances that form the basis for the Board's belief; and

(d) invites the holder to make written representations to the Board within a specified time of not less than 7 days and not more than 28 days, as to why the proposed action should not be taken.

If the Board decides to amend, suspend or cancel the practising certificate, the Board must give the holder an information notice about the decision.

The legislation ­ the Tribunal's review jurisdiction

A person may apply to the State Administrative Tribunal for a review of ­

(ii) to amend, suspend or cancel a local practising certificate[.]

16 Whether Mr Rayney is fit and proper is to be decided as at the time of the hearing, not as at the time of the conduct (A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor) at [21]).

17 Fitness to practise law requires that the practitioner must command the personal confidence of clients, fellow practitioners and judges ­ see: In re Davis [1947] HCA 53; (1947) 75 CLR 409 (In re Davis) at 420; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 at [46]; Dixon v Legal Practice Board of Western Australia [2012] WASC 79 (Dixon) at [19].

18 Unprofessional conduct includes conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, which includes, but is not confined to, conduct which occurs in the course of legal practice (Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61]).

19 The assessment of fitness and propriety in legal practitioners involves a range of broad public interest considerations. The relevant interests are the interests of the public, the interests of the Court and the maintenance of the high reputation and standards in the legal profession (Dixon at [27]).

20 In Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 (Prothonotary) the Court stated at [29]:

In Foreman, the Court of Appeal indicated that in determining whether someone is a fit and proper person to be a solicitor the relevant considerations may include: the protection of the public against similar conduct, the character of the solicitor, and the effect which an order will have on the understanding (within the profession and amongst the public), of the standard of behaviour required of solicitors, the effect upon relationships which must exist between solicitors and the circumstances surrounding the impugned conduct.

21 The allegations against Mr Rayney relate to alleged conduct occurring otherwise than in connection with the practice of law.

22 In Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 (Ziems) at 250, Fullagar J said:

Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister ... But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former.

(See also A Solicitor at [19])

23 The High Court said at [20]­[21] in A Solicitor:

The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise. And there may be an additional dimension to be considered. It was explained by Kitto J in Ziems:

'It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.'

Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether or not it amounts to professional misconduct, may have occurred years earlier. At the same time, personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness, and require an order of removal. ...

24 In Prothonotary at [19] the Court stated:

In McBride v Walton [1994] NSWCA 199 (at [61]-[62]) the Court noted the matters to be considered when determining whether a finding of proven misconduct should be followed by a consequential finding that the practitioner was not of good character (in the context of fitness to practise medicine) as being:

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other misconduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.

25 At [30] in Prothonotary the Court also stated:

The Prothonotary accepts that a criminal conviction, even for a serious offence, does not automatically render a person unfit to be on the Roll and that it is necessary to assess the nature and quality of the criminal conduct and its relevance to the practice of law (Ziems v Prothonotary of the Supreme Court of NSW [1957] 46; [1957] HCA 46; 97 CLR 279).

26 In deciding whether a person is a fit and proper person, the court may, in accordance with the circumstances, consider those aspects of the character of the practitioner relevant to the office of a legal practitioner.

27 Mr Rayney tendered a large number of character references (Exhibit S). There can be no doubt that prior to 2007, Mr Rayney was regarded as, and was, of impeccable character and entirely fit and proper to hold a practising certificate.

28 The Board submits that character involves, among other things, the acceptance of high standards of conduct, acting in accordance with those standards under pressure, and that '[c]haracter is tested not by what one does in good times but in bad' (Law Society of NSW v Foreman (1994) 34 NSWLR 408 (Foreman) at 449 per Mahony JA).

29 It is important to note that the stresses to which the practitioner was subject in Foreman were essentially to meet the firm's costs targets. The practitioner's position in Foreman is in no way comparable to the position in which Mr Rayney found himself at the relevant times.

30 The Board also submitted that 'pressure and external stressors are likely to be more relevant where the conduct in question involves neglect or oversight, rather than deliberate criminal conduct - see eg Dal Pont, Lawyers' Professional Responsibility (5th ed, 2013) at [23.150]' and the cases cited at note 176.

31 The Tribunal accepts the correctness of Dal Pont's text, however, that is not to say that external pressure is irrelevant even if the practitioner's conduct is deliberate or unlawful.

32 In cases where there is an order that a practitioner be struck off, the position is as stated by Fullagar J in Ziems at 297­298:

... the possibly disastrous consequences of disbarment to the individual concerned [are such that] a court to which an appeal comes as of right is bound to examine the whole position with meticulous care.

(See also A Solicitor at [16])

33 This is not a case in which an order is sought that Mr Rayney be struck off. However, the effect of Mr Rayney's practising certificate being cancelled is clearly analogous and has possibly disastrous consequences for Mr Rayney and is equivalent to that of being struck off. Accordingly, the Tribunal is required to examine the whole position with meticulous care.

34 In the hearing before this Tribunal, the Board accepted that it bore the onus of proof (Board Opening Submissions (BOS) at [13]).

35 In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated:

The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].

(See also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 (Reifek))

36 In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.

37 The standard of proof required in a civil case where serious allegations are made was stated in Rejfek where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:

The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. ...

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.

38 In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:

... mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.

39 The allegations made against Mr Rayney are analogous to those of dishonesty in that they involve a degree of concealment.

40 In Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 (Braysich) at 455, the majority cited the observation of Cockburn CJ in R v Rowton [1865] EngR 53; (1865) Le & Ca 520 at 530 [169 ER 1497 at 1502], where he stated:

The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried.

41 Accordingly, an accused may lead evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged: Braysich at [40].

42 Mr Rayney led extensive character evidence (Exhibit S). That evidence establishes that he has a favourable character.

43 Such evidence is relevant to Mr Rayney's objective purpose. It is relevant to the question of whether Mr Rayney was unlikely to have the prescribed dishonest purpose.

44 The Tribunal starts with the presumption that Mr Rayney was unlikely to have a dishonest purpose.

45 Before turning to an analysis of the facts in this application, it is useful to give a brief chronology of the more significant events from 2007 to 2015 concerning Mr Rayney to put the factual analysis that follows in overall context.

46 Prior to Mrs Rayney's death, probably commencing in April 2007, Mr Rayney used a handheld dictaphone to record conversations between them. In July 2007 Mr Rayney caused a recording device (the Device) comprising a Sony Notebook recorder (Sony Notebook) and a CRU2 to be installed at the Rayney home.

47 Mrs Rayney was last seen alive on 7 August 2007. She died during the late evening of 7 August or the early morning of 8 August. Mrs Rayney's grave was discovered in Kings Park on 15 August 2007.

48 On 21 August 2007, a search warrant was issued under s 42 of the Criminal Investigation Act 2006 (WA) to search the Rayney home (Exhibit I page 1). The warrant was executed on 22 August 2007.

49 Mr Rayney used a second handheld dictaphone to record telephone conversations between him and the Police in late August/September 2007.

50 The recordings from the handheld dictaphones were transferred to the Compact Discs (CDs). The handheld dictaphones were then disposed of by Mr Rayney. On 19 September 2007, a second search warrant was issued to search the Rayney home (Exhibit I page 7) and Mr Rayney's office at Francis Burt Chambers (Exhibit I page 15). These warrants were executed on 20 September 2007.

51 Mr Rayney subsequently claimed legal professional privilege over all of the records seized from Francis Burt Chambers. Those records included the CDs of the recordings:

1. between Mr and Mrs Rayney using the handheld dictaphone; and
2. between Mr Rayney and members of the Western Australia Police (Police) using the second handheld dictaphone.

52 Mr Rayney was named by the Police as the only suspect in Mrs Rayney's murder at a media conference on 20 September 2007 (Exhibit I pages 515­516) and was arrested for Mrs Rayney's murder on the same day (Exhibit I page 36 at [227])

53 Mr Rayney was charged with an offence under the Surveillance Devices Act 1998 (WA) on 20 September 2007 (Exhibit N at [781], Exhibit [I] page 112).

54 On 15 September 2008, Mr Rayney was charged with two offences under s 7(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Telecommunications Charges) (Exhibit A page 1758) and the charge under the Surveillance Devices Act was withdrawn (Exhibit I page 112).

55 The trial of the Telecommunication Charges was originally scheduled for 3 March 2009 but was adjourned until the completion of Mr Rayney's trial for wilful murder and any appeal (Exhibit I page 112).

56 On 8 December 2010, Mr Rayney was again arrested for his wife's murder (Exhibit N at [663]).

57 Mr Rayney's claim for legal professional privilege was determined on 17 December 2009 in the Magistrates Court before Magistrate Flynn. An appeal from Magistrate Flynn's decision was determined by the Court of Appeal on 6 August 2010 (AW v Rayney [2010] WASCA 161 (AW)).

58 Mr Rayney was tried for wilful murder in the Supreme Court of Western Australia before Brian Martin AJ. The trial commenced on 14 July 2010. Brian Martin AJ delivered his reasons on 1 November 2012 (The State of Western Australia v Rayney (No 3) [2012] WASC 404). Mr Rayney was acquitted.

59 The State appealed against Mr Rayney's acquittal. The Court of Appeal delivered its reasons dismissing the appeal on 23 September 2013 (The State of Western Australia v Rayney [2013] WASCA 219).

60 Mr Rayney was tried on the Telecommunications Charges in the District Court before Stavrianou DCJ which commenced on 28 April 2015. At the end of the trial, Mr Rayney's no case submission was successful and he was acquitted.

61 As a consequence of the charges laid against Mr Rayney, the Board sought a number of undertakings from him.

62 Relevantly, on 13 December 2012, the Board sought an undertaking from Mr Rayney that he had ceased legal practice and that he would not recommence legal practice without first giving the Board 42 days' notice in writing of his intention to do so (Exhibit A page 1783). Mr Rayney gave the undertaking on 17 December 2012 (Exhibit A page 1786).

63 Following Mr Rayney's undertaking, the Board issued a practising certificate to Mr Rayney (Exhibit A pages 1793­1794).

64 On 8 May 2015, Mr Rayney's solicitors wrote to the Board asking what steps Mr Rayney would need to take to resume practice (Exhibit A pages 1795­1796). On 18 May 2015, Mr Rayney's solicitors gave formal notice that he intended to recommence practice after 42 days (Exhibit A page 1799).

65 On 2 June 2015, the Board gave notice to Mr Rayney, pursuant to s 56(2) of the LP Act, of its intention to cancel his practising certificate (Notice of Intention). The Notice of Intention stated that the Board was considering cancelling Mr Rayney's practising certificate on six grounds (Exhibit A pages 1800­1804).

OUTLINE OF THE FACTS AND CIRCUMSTANCES THAT FORM THE BASIS FOR THE BOARD'S BELIEF

1. In considering whether a holder of a local practising certificate is no longer a fit and proper person to hold a local practising certificate, the Board may take into account any matters relating to the holder the Board considers are appropriate (see LPA s 38(2)(f)).
2. The following facts and circumstances, which are set out in the reasons for decision of the Court of Appeal in AW v Rayney [2010] WASCA 161 delivered on 6 August 2010 and of Brian Martin AJ in The State of Western Australia v Rayney (No 3) [2012] WASC 404 delivered on 1 November 2012, form the basis of the Board's belief that you are no longer a fit and proper person to hold a local practising certificate[.]

(i) You deliberately disposed of the Dictaphone used to [secretly] record the conversations [you had with Mrs Corryn Rayney using a hand held Dictaphone] ... and a Dictaphone used to record conversations with other third parties and thereby destroyed the original recordings ([2010] WASC 161, at [217], [351]).

(j) You did so after the execution of search warrants on 22 August 2007 and 20 September 2007 ([2010] WASCA 161, at [351]).

(k) You knew that the non-electronic and electronic records sought by the police under the search warrants included Dictaphones ([2010] WASCA 161, at [217]).

(l) You made copies of the recordings and disposed of the Dictaphones to ensure that the Dictaphones and the original recordings were placed out of the reach of the authorities ([2010] WASCA 161, at [41]-[44]; [353]).

Arranging for Recordings of Telephone Conversations

(m) In or about July 2007, you arranged for a third person to intercept and record telephone conversations at your home address ([2012] WASC 404, at [180]-[185]).

(n) In doing so you wanted to record and listen to Mrs Rayney's conversations ([2012] WASC 404, at [214]).

(o) You were aware that the third party had taken steps to record both ends of telephone conversations including enabling him to enter the roof space of the house, where he installed a recorder and digital notetaker ([2012] WASC 404, at [185], [191]).

(p) You would have been well aware that the activity of intercepting and recording telephone conversations was an illegal activity ([2012] WASC 404, at [185], [214]).

(q) The third person obtained copies of recordings made from the roof space of the house and provided CD copies of the recordings to you ([2012] WASC 404, at [197]).

67 Obviously, the Notice of Intention relied heavily on the reasons of the Court of Appeal in AW and of Brian Martin AJ and the findings therein.

68 On 17 July 2015, following correspondence between Mr Rayney's solicitors and the Board, the Board issued a notice to Mr Rayney under s 56(4) of the LP Act.

69 Ultimately, in deciding to cancel Mr Rayney's practising certificate, the Board relied on only two of the grounds set out in the Notice of Intention and added a third ground ­ lack of candour in responding to the Board.

70 The Cancellation Notice essentially relied on Mr Rayney's alleged conduct as set out under the heading 'Disposing of Dictaphones' and 'Arranging for Recordings of Telephone Conversations' as set out in the Notice of Intention.

1. The following facts and circumstances form the basis of the Board's belief that you are no longer a fit and proper person to holder a local practising certificate:

(a) You deliberately disposed of the Dictaphone used to record conversations you had with Mrs Corryn Rayney and a Dictaphone used to record conversations with other third parties and thereby destroyed the original recordings.

(b) You did so after the execution of search warrants on 22 August 2007 and 20 September 2007.

(c) You knew that the non-electronic and electronic records sought by the police under the search warrants included Dictaphones.

(d) You made copies of the recordings and disposed of the Dictaphones to ensure that the Dictaphones and the original recordings were placed out of the reach of the authorities.

Arranging for Recordings of Telephone Conversations

(e) In or about July 2007, you arranged for a third person to intercept and record telephone conversations at your home address.

(f) In doing so you wanted to record and listen to Mrs Rayney's conversations.

(g) You were aware that the third party had taken steps to record both ends of telephone conversations including enabling him to enter the roof space of the house, where he installed a recorder and digital notetaker.

(h) You would have been well aware that the activity of intercepting and recording telephone conversations was an illegal activity.

(i) The third person obtained copies of recordings made from the roof space of the house and provided CD copies of the recordings to you.

1. At a meeting held on 16 July 2015, the Committee considered the matters set out at paragraphs 1 to 9 above and resolved to cancel your local practising certificate on and from 21 July 2015.

72 Although the s 56(4) Cancellation Notice did not specifically identify the passages from the judgments that were identified in the s 56(2) Notice of Intention, it is clear that the Board relied on those passages.

73 The effect of the notice of 17 July 2015 was that the Board cancelled Mr Rayney's practising certificate with effect from 21 July 2015 (the Cancellation Notice) (Exhibit A pages 1936­1941).

74 The allegation of 'Secret Recordings and Breach of Surveillances Devices Act 1998' in paragraph (a) of the Notice of Intention was not relied upon by the Board in the Cancellation Notice.

75 The Board's case was not that it was the recordings of the conversation by Mr Rayney using the Device that of itself makes him not a fit and proper person. Rather that it was the alleged illegal recordings that make him not a fit and proper person.

76 Therefore, the Board must establish not only that the recordings were made but that they were made illegally.

77 However distastefully people might regard Mr Rayney's conduct in recording, or attempting to record, his conversations with his wife, the Board's case is not that that conduct is a ground for refusing to issue a practice certificate.

The relevance of findings of other Courts to the Tribunal hearings

78 In certain circumstances, the evidence and findings of a court in criminal proceedings may be relevant to findings made by this Tribunal.

79 Where a practitioner has been convicted, the position is as stated in Sudath v Health Care Complaints Commission [2012] NSWCA 171; (2012) 84 NSWLR 474 (Sudath), where Meagher JA, Whealy JA agreeing, held:

[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.

80 Mr Rayney was acquitted of all charges he faced. As such, Sudath which applies to convictions does not apply, although the reasoning is instructive in relation to findings.

81 Mr Rayney relies upon observations in Re Mulligan; Ex parte Isidoro [1979] WAR 198 (Re Mulligan) for the proposition that the Board's case in this Tribunal seeks to improperly controvert his acquittal in the District Court.

82 An acquittal does not prevent subsequent disciplinary proceedings (see Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 (Litchfield) at 634-636; Smolarek v Roper [2009] WASCA 124 at [94]; and That's Entertainment (WA) Pty Ltd v Commissioner of Police [2013] WASC 75 (That's Entertainment) at [45], [46], [50], [60]­[61]).

83 In relation to the findings made by Brian Martin AJ, it is important to note that Mr Rayney did not give evidence at his trial for wilful murder. Further, Mr Rayney was constrained in the presentation of the defence case in his wilful murder case by the fact that he still faced a trial of the Telecommunications Charges. The constraints he faced are set out in the evidence of Mr David Edwardson QC (Exhibit R and Exhibit I Volume 2 Tab 27 pages 513­516). The Board did not seek to challenge the evidence of Mr Edwardson QC. The Tribunal accepts the evidence of Mr Edwardson QC.

84 The Court of Appeal's decision was from a decision of a magistrate on a claim for legal professional privilege. The Magistrates Court hearing was not a hearing of a charge.

85 The position is that the Tribunal must make its own findings of fact in reaching a conclusion as to whether Mr Rayney is a fit and proper person to hold a practising certificate. The Tribunal had the benefit of Mr Rayney giving evidence and being cross­examined.

86 In the Board's opening submissions, it identified three grounds, as set out below, for the cancellation of Mr Rayney's practising certificate as the basis for finding that he is not a fit and proper person to hold a practising certificate:

The first ground ­ installation of the Listening Device

1. In the context of the practitioner experiencing an acrimonious breakdown in his marriage with the late Mrs Rayney from no later than April 2007, the practitioner instructed or requested a third party, Mr Timothy Pearson, to install a listening device in the roof space of their matrimonial home.
2. The practitioner's purpose in doing so was to record Mrs Rayney's private telephone conversations with third parties, without her knowledge or the knowledge of the other participants.
3. The Board contends that the device was installed by Mr Pearson on 23 July 2007, and aside from a period in which it was temporarily removed from 26 July until about 29 July 2007, it remained in the roof space of the matrimonial home until it was removed on or about 5 August 2007.
4. The Tribunal will be invited to infer that a number of Mrs Rayney's private telephone calls were recorded.
5. The practitioner committed offences against s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth), and counselled or procured Mr Pearson to do so.
6. Alternatively, the practitioner committed offences against ss 5(1) and 34 of the Surveillance Devices Act 1988 (WA), and counselled or procured Mr Pearson to do so.
7. The practitioner knew that he was committing an offence or offences, and that he was counselling or procuring Mr Pearson to do so.

The second ground ­ concealment and destruction of dictaphones

1. The second ground is that after 20 September 2007, after the police had executed search warrants at the practitioner's home and chambers which the practitioner knew included two handheld digital dictaphones, and after the practitioner had been named as the prime and only suspect in his wife's murder, the practitioner deliberately disposed of the dictaphones to ensure that the dictaphones and the original recordings contained on them were placed out of the reach of authorities.
2. To deliberately dispose of the dictaphones in these circumstances was an unlawful destruction of evidence contrary to s 132 of the Criminal Code, and an attempt to pervert the course of justice contrary to s 143 thereof.

The third ground ­ lack of candour in responding to the Board

1. Thirdly, in responding to the Board's show cause notice, the practitioner failed to give a candid explanation of matters raised in the notice with respect to the installation of the listening device in the matrimonial home.

87 Before turning to a detailed factual analysis, it is useful to make a number of general points in relation to the Tribunal's overall finding.

88 The majority of the relevant events happened some years ago, as far back as 2007.

89 That circumstance makes it likely that Mr Rayney's ability to recall events could well be affected as a result of the passage of time rather than a conscious effort to re­write history.

90 In addition to the passage of time, Mr Rayney gave evidence before the Tribunal that the events of 2007 and subsequently have caused him significant trauma and affected his recollection (Exhibit N at [11]­[13]). The Tribunal accepts that Mr Rayney's recollection was significantly affected by these events and it is not surprising that his recollection has been so affected.

91 Decisions made by Mr Rayney that may have seemed illogical to others in the cold light of day may have seemed logical to Mr Rayney or to anyone else who found themselves in Mr Rayney's traumatic circumstances. As a result, the adverse inferences that might otherwise be drawn if Mr Rayney was not affected by those events are less likely to be drawn.

92 Mr Rayney's submissions were very critical of the conduct of the Police in the investigation of his wife's murder. It is unnecessary and unhelpful to make any findings or any comments in relation to the conduct of the Police. Those criticisms have played no part in the Tribunal's findings on the issues before it. The serious allegations against Mr Rayney were sufficient of themselves to have caused Mr Rayney extraordinary stress.

93 In late 2006, Mr Rayney's father was permanently hospitalised as a result of brain damage suffered in a fall while being treated for cancer. He remained in hospital for the last four months of his life (Exhibit N at [740]. He died in January 2007 (Exhibit N at [741]; T:236).

94 By early 2007, Mr Rayney's and his wife's marriage was in difficulties (Exhibit N at [66]).

95 Mr Rayney engaged Mr William Carr of Carr & Co, a prominent family lawyer, to advise him in relation to his marriage separation. They first met on 16 April 2007 (Exhibit I page 108 ­ Affidavit of W Carr).

96 Mr Rayney gave evidence before this Tribunal that at some stage in early 2007, probably around April, Mrs Rayney made an extremely serious oral insinuation against him (Exhibit N at [703]-[710]).

97 The Board did not contest that such an insinuation was made.

98 The Tribunal finds that an oral insinuation as described by Mr Rayney was made by Mrs Rayney since she repeated the insinuation in writing in an email to Mr Rayney on 13 July 2007 (Exhibit N at [734]; Exhibit A page 1749; T:242, T:249, T:258 and T:268). Mr Rayney responded to that email on 14 July 2007 (Exhibit A page 1748).

99 It is unnecessary to provide details of the insinuation. However, Mr Rayney's conduct thereafter needs to be seen in the light of that insinuation and its effect on him. The Tribunal accepts that such an insinuation would be, and was, deeply distressing to him. In relation to the insinuation, the Tribunal notes that there is absolutely no evidence to support any allegation of impropriety on Mr Rayney's part, or in any way supports such an insinuation.

100 Mr Rayney's evidence before this Tribunal was that he sought to record conversations between him and his wife firstly, by the use of a handheld dictaphone and secondly, by the Device.

101 Mr Rayney's evidence of his reason for the recordings, and attempted recordings, of conversations with Mrs Rayney is that he sought to obtain a recording of Mrs Rayney in which she acknowledged to him that her insinuation was not true or that it did not mean what he believed it to mean (Exhibit N at [733], [877] and [1053]). Mr Rayney's evidence was that he hoped that the discussion of other topics might lead to the insinuation being discussed and withdrawn (Exhibit N at [755]). Mr Rayney's evidence was that he could then use a successful recording to give to his lawyer for advice or use in any future litigation (Exhibit N at [749]).

102 The Board put to Mr Rayney that he used the Device to record conversations between his wife and third parties, without Mrs Rayney's or the third parties' knowledge. Mr Rayney denied that this was his purpose (T:254; BOS at [4]).

103 The Board suggested that the motive for Mr Rayney recording conversations between Mrs Rayney and third parties was 'to get inside Mrs Rayney's head ... and see what she was saying to her friends and relations about [him]' (T:269). Mr Rayney denied this.

104 The Tribunal finds it is difficult to see what a recording of Mrs Rayney speaking to third parties could have achieved.

105 Mr Rayney explained that his purpose was to record a telephone conversation he proposed to have with Mrs Rayney while she was holidaying in Melbourne, in which he would try and get her to qualify in some way the 'insinuation'. The Board submitted this explanation was, with respect to Mr Rayney, 'simply absurd'.

106 The Board submitted that Mr Rayney acknowledged that his attempts to record a withdrawal of the insinuation with the dictaphone had been 'futile' (T:232­233, T:254, T:266, T:268, T:254, T:266, T:269). The Tribunal accepts this submission and finds accordingly.

107 The Board submitted that Mrs Rayney was going to Melbourne with their two daughters and other family members. Mrs Rayney left for the airport at around 4:30 pm on Wednesday, 25 July 2007 (Exhibit A, Vol 5, Tab 10, page 1746). They would not arrive at their apartment in Melbourne until sometime after midnight, Melbourne time. Mrs Rayney was returning to Perth on 30 July 2007 (Exhibit P; T:261 T:262). The Tribunal accepts this submission and finds accordingly.

108 The Board submitted that, accordingly, Mrs Rayney would be in Melbourne for four full days from 26 to 29 July 2007 and then whatever time she had in Melbourne on the 30 July 2007 before flying back to Perth. On one of these days, she would be at a Collingwood football game (T:262, T:263). The rest of the time she would be shopping, dining, and generally holidaying in Melbourne with her daughters and family (T:262, T263­264). She did not have a mobile phone (T:212) although their two daughters did. The Tribunal accepts this submission and finds accordingly.

109 The Board submitted that Mr Rayney's explanation comes down to this:

1. although his previous attempts to obtain a recording of the confirmation he wanted from Mrs Rayney had been futile,
2. he said that during the four or five day period that Mrs Rayney was holidaying in Melbourne, watching football, shopping and dining with her daughters and family, he intended to engage her, at the appropriate or opportune moment (T:264, T:268-269) in a telephone conversation on his home telephone (not his mobile or work phone),

1. on the serious subject of their marital problems and the 'insinuation' and attempt to obtain from her, some sort of qualification about what she had said about the 'insinuation' which would be recorded (T:254­255, T:262­269),

1. he said he would 'get one go and one go only' at this supposed conversation (T:267).

110 The Board submitted, that for this purpose, Mr Rayney went to the trouble and expense of engaging Mr Pearson to install the listening device in his home.

1. Mr Rayney originally said that this supposed conversation would have to take place when Mrs Rayney was in her apartment in Melbourne, when she had access to the landline (T:263);
2. he would have to sit by his home phone (T:263); and

1. he then said he could speak with her while she was with one of their daughters because she would have been able to use one of their mobile phones (T:263).

112 The Board submitted that it was inherently improbable that Mrs Rayney would have engaged with Mr Rayney in a serious conversation about their marital issues and the 'insinuation' in these circumstances, while she was holidaying in Melbourne, either at her apartment or out and about with her daughters (and possibly also with other family members present).

113 Mr Rayney's evidence to the Tribunal was that he thought that Mrs Rayney would be in a more relaxed frame of mind while she was in Melbourne (T:265).

114 The Tribunal finds that despite the fact that other members of the family travelled to Melbourne with Mrs Rayney, there is no reason why Mrs Rayney could not have had a private conversation with Mr Rayney. As a matter of common experience, Mrs Rayney could, for example, easily have gone into a bedroom and closed the door.

115 The Board submitted that the whole supposed plan, as suggested by Mr Rayney, was simply ridiculous. The Board submitted that Mr Rayney's explanation was 'utter rubbish' (T:265).

116 The Tribunal accepts that there is a degree of wishful thinking on Mr Rayney's part in imagining that Mrs Rayney would withdraw the insinuation whilst being recorded. However, having regard to all the circumstances including the impact of his father's death, a failing marriage and the content of the insinuation, the Tribunal does not find Mr Rayney's explanation for his actions to be completely implausible.

117 The Board has not offered any convincing rationale other than what Mrs Rayney was saying to her friends, for Mr Rayney seeking to record Mrs Rayney's telephone conversations. The Tribunal is satisfied that a not unreasonable rationale for recording the conversations was to attempt to obtain a withdrawal of the extremely serious insinuation and finds this may well have been the case. The Tribunal rejects the Board's submission that it is 'utter rubbish'.

Mr Rayney's recordings of conversations between him and Mrs Rayney (The Rayneys' conversations)

118 Mr Rayney's evidence before the Tribunal was that the first attempts to record a withdrawal of the insinuation were made using an inexpensive handheld dictaphone that cost about $50 (Exhibit N at [732], [807], [209] and [210]). However, the dictaphone was not successful in recording such a conversation with Mrs Rayney (Exhibit N at [1049]­[1040]).

119 Mr Rayney's evidence before the Tribunal was that Mrs Rayney was aware that he was recording their conversations. He said he informed her of this on the first occasion that he made a recording of their conversation (T:209); Exhibit N at [748], [757] and [794]).

Corryn couldn't care less that I tried to record our conversations. She did not use those words but it was almost like saying 'Go ahead, give it your best shot.'

(See also T:237­239)

121 The recordings do not commence with a statement of the date and time. Similarly, the recordings do not commence with a statement that Mrs Rayney had consented to the recordings (Exhibit N at [754]). Mr Rayney's explanation is that to do so would have made it a 'formal event' which he wished to avoid (Exhibit N at [752]).

122 As noted, the Board did not pursue an allegation of a breach of the Surveillance Devices Act in relation to the use of the dictaphone to record conversations with Mrs Rayney. It is therefore unnecessary to make a finding as to whether this was done with or without Mrs Rayney's consent.

123 The significance of the first dictaphone recordings, their transfer to CDs, and the subsequent disposal of the first dictaphone and the second dictaphone by Mr Rayney, is that it provides part of the factual basis for the Board's allegation that improper disposal of the dictaphones was illegal.

A brief summary of the respective cases relating to the Device

124 There is no issue that Mr Timothy Pearson attended at the Rayney home to install the Device. However, the date on which Mr Pearson attended is very much in issue.

125 The Board alleges that Mr Pearson installed the Device at the Rayney home on 23 July 2007. The Board alleges that except for a period from 26 July until about 29 July when the Sony Notetaker was removed, the Device remained until 5 August 2007. The Board says that recordings were made throughout this period and that these recordings were illegal.

126 The Board's case in relation to the Device relied heavily on the objective evidence set out below and Mr Pearson's evidence given in previous proceedings (BOS at [46] and [62]). Unfortunately, Mr Pearson did not attend before the Tribunal to give evidence and the Board were unable to subpoena him to attend.

127 The Board submitted that the falsity of Mr Rayney's explanation was demonstrated by the objectively established or agreed facts, contemporaneous events and documents, the evidence of Mr McKemmish (a forensic computer expert) and the apparent logic of events.

128 The Board submitted that the weight to be attributed to Mr Pearson's evidence alone may be affected by the fact that he was not cross­examined, but aside from some inconsequential errors about some dates and the precise sequence of events, his evidence was in all material respects consistent with the objective and contemporaneous matters which demonstrate the falsity of Mr Rayney's explanation.

129 Mr Rayney's case was that the Device was installed on 25 July 2007, the Sony Notetaker was removed on 26 July 2007 and the CRU2 was removed before 30 July 2007 which effectively means, on Mr Rayney's evidence, that the Device was installed and removed while Mrs Rayney was away in Melbourne.

130 In considering the use of the Device, there are three objective sources as to the dates and times of events:

131 A number of schedules of telephone records were in evidence. However, there is no complete record of the telephone communications to and from the various numbers during the relevant period. For example, there were no telephone records in evidence before the Tribunal of the automated calls to the alarm monitoring company ARM. No adequate explanation was offered as to why the complete records were not provided. The Tribunal would have had more confidence in drawing inferences from the date and timing of the communications if the telephone records were complete. The fact that the records are incomplete makes the drawing of inferences based on the number of calls fraught with difficulty.

132 In the statement of facts read to the Magistrates Court when Mr Pearson pleaded guilty to charges under the Telecommunications (Interception and Access) Act 1979 (Cth), it was said that, between 23 July 2007 and 4 August 2007, there were 126 calls (Exhibit A pages 895 and 901).

133 Relevant telephone communications are set out in tables in these reasons.

134 The Tribunal has used the expression 'telephone communications' rather than 'calls' because it does not follow that because there was a telephone communication between two numbers, there was necessarily a call in the form of a conversation between two persons.

135 The Rayneys had a monitored alarm system at their home. The alarm system was monitored by ARM, a security company. The alarm system was monitored by ARM via the Rayney home telephone and produced an alarm log. The alarm log was annexed to Exhibit C, a statement by Mr Vincent, a security alarm specialist. Evidence as to the meaning of the various codes in the alarm log was given by Ms Grace Glass, an employee of ARM.

136 An expert report on the contents of various computers seized by the Police was prepared by Mr McKemmish. These computers included computers at the Rayney home and at Mr Rayney's office (Exhibit A pages 55­56). Mr McKemmish has been able to identify certain times at which, or by no later than, recordings were accessed on the Rayney home computer at Monash Avenue (the Monash Tower). Mr McKemmish was unable to determine which files had been played. It does not follow that because a file of a recording has been accessed that the recording in the file was actually played.

1. 29 August 2007 (Exhibit A pages 1­25);
2. 3 October 2007 (Exhibit A pages 26­50) - this statement is substantially identical to his statement of 29 August 2007; and
3. 13 February 2009 (Exhibit A pages 51­53).

138 Mr Pearson swore an affidavit on 12 November 2009 which was filed in the Magistrates Court proceedings. This affidavit incorporated the three statements from the Police set out above (Exhibit A pages 1303­1318).

139 Mr Pearson gave evidence under oath in the Magistrates Court, the Supreme Court and the District Court. He also pleaded guilty to an offence under the Telecommunications (Interception and Access) Act (Cth) in the Magistrates Court on 14 February 2008 (Exhibit A pages 894­916). Mr Pearson pleaded guilty on the basis of the facts as read out in the Magistrates Court.

140 Despite the Board's efforts, it was unable to serve a witness summons on Mr Pearson. As stated earlier, Mr Pearson did not attend at the Tribunal hearing to give oral evidence or to be cross­examined which was unfortunate. The weight to be given to Mr Pearson's statements and transcripts of evidence, albeit that some of them were on oath in other courts, was less than had he given evidence before this Tribunal.

141 The alarm system container at the Rayney home were installed above the top shelf of a walk­in­robe, immediately below a manhole in the ceiling. There were power points next to the alarm container (Exhibit N at [1005]; Exhibit J).

142 Photographs of the alarm system below the manhole and the wiring in the roof space above the manhole appear in Exhibit J. These photographs were taken by Mr Jonas Thompson, a forensic investigation officer.

143 The alarm system appears to connect to two metal containers which are either side of a three plug power board. The power board is plugged into a power point. Two of the power points in the power board have transformers plugged into them. In addition, there is an orange telephone socket.

144 A photograph of the wiring in the ceiling was submitted in evidence but it was not very illuminating.

145 As part of its reasons the Tribunal has given a detailed chronology because

1. this was the manner in which both parties conducted the case,
2. it is important for the drawing of inferences submitted by both parties, and

1. it is important in assessing the reliability of the evidence of Mr Rayney and Mr Pearson.

146 Mr Rayney gave evidence before this Tribunal that he had originally planned to go to Melbourne with his family on 25 July 2007. However, Mrs Rayney asked him not to go. Mr Rayney knew from about 13 or 14 July 2007 that he would not be going to Melbourne with his family (T:323). Mr Rayney also knew that Mrs Rayney would be away in Melbourne from 25 July to about 30 July 2007 (T:257).

Mrs Rayney repeats the insinuation in writing on 13 July 2007

147 Mr Rayney gave evidence before this Tribunal that he had not pursued his 'amateurish' and unsuccessful attempts to use a dictaphone to record a conversation between him and Mrs Rayney about the insinuation. He had 'let it slip'.

148 On 13 July 2007, Mrs Rayney sent an email to Mr Rayney repeating the insinuation.

149 Mr Rayney's evidence before this Tribunal is that when Mrs Rayney repeated the insinuation in writing in the email of 13 July 2007, Mr Rayney again became distressed about it (T:266­268).

150 The Tribunal finds that the fact that Mrs Rayney repeated the insinuation in writing on 13 July 2007 is critical in the sense that it again focused Mr Rayney's mind on obtaining a withdrawal of the insinuation.

151 The Board sought to attach weight to the fact that the insinuation was not made in a lawyer's letter. The Tribunal finds that the fact that the insinuation was not in a lawyer's letter is of no significance. Its sting is no less because it does not appear under letterhead.

152 On the evening of Friday 13 July 2007, Mr Rayney met with a fellow practitioner, Ms Claire O'Brien (Exhibit N at [928]; T:215, T:217 and T:258). During a conversation between them, the topic of recording telephone conversations came up. They discussed recording conversations between Mr and Mrs Rayney. Mr Rayney's evidence was that he wanted a recording of what he and Mrs Rayney discussed that was accurate. He and Ms O'Brien discussed which conversations, including phone conversations, could be recorded lawfully (Exhibit N at [939]­[943]; T:251).

153 The Board submitted that there was an inconsistency between Mr Rayney's discussions with Ms O'Brien about recording conversations between him and Mrs Rayney generally and Mr Rayney's stated purpose of recording a withdrawal of the insinuation. The Board submitted that Mr Rayney had told Ms O'Brien and Ms Black (another practitioner) about the insinuation The Board submitted that Mr Rayney did not have a definite plan at that stage (BCS [73]).

154 In his evidence before the Tribunal Mr Rayney was adamant that he never told anybody the purpose of why he wanted Mr Pearson to install a call recording unit. Mr Rayney did not 'isolate the insinuation as something [he] wanted a recording [of to Ms O'Brien]' (T:250).

155 The Tribunal does not accept the Board's submission as to the apparent inconsistency is of any significance. The fact that Mr Rayney and Ms O'Brien may have had a general conversation about recordings does not mean that Mr Rayney did not seek to record a withdrawal of the insinuation by Mrs Rayney.

156 Ms O'Brien's brother, Mr Nick Krasenstein, had a friend, Mr Pearson, who ran a surveillance business (Exhibit N at [944]). Ms O'Brien offered to have her brother contact Mr Pearson.

157 Mr Krasenstein subsequently contacted Mr Pearson on 14 or 15 July 2007 (Exhibit A page 1734). There were a number of calls between Mr Pearson and Mr Krasenstein over 14/15 July 2007. Precisely when the relevant call was made is not significant.

158 The telephone records disclose that Mr Pearson first contacted Mr Rayney on Sunday 15 July 2007 at 12:35 pm and that Mr Pearson rang Mr Rayney's mobile from his home phone. The call lasted 2'28".

159 Mr Pearson's evidence in the District Court was that Mr Rayney told him 'maybe ... he'll contact me at a later stage' (Exhibit A page 417).

160 Mr Rayney's evidence before this Tribunal was that he did not have a specific recollection of the content of each of the conversations between him and Mr Pearson (Exhibit N at [999].

161 Mr Rayney's evidence to this Tribunal was that he had decided to install a device by about Monday 16 July 2007 (T:258) on the basis that:

I believed that over the course of the days when Corryn was away I thought I would have an opportunity to speak with her by telephone. As she would be in a better mood and more likely to speak more openly with me because she would be on holidays with the children, shopping and enjoying herself away from her work and me.

(Exhibit I at [1050]; T:265)

162 The telephone records disclose that there were two telephone communications between Mr Rayney and Mr Pearson on 16 July 2007.

163 Mr Rayney's evidence before this Tribunal was that Mr Pearson's workshop was at his home (Exhibit N at [969]). During one of the calls on 16 July 2007, Mr Pearson invited Mr Rayney to his home in Dalkeith (Exhibit N at [956]). They met there on 16 July 2007.

164 Mr Rayney's evidence before this Tribunal is that he became aware when he visited Mr Pearson's home on 16 July 2007, that he was being recorded by surveillance cameras (Exhibit N at [957]­[967]). He visited again on 17 July 2007.

165 Mr Rayney asked Mr Pearson if Mr Pearson could install a device to record telephone conversations on the Rayney home phone. Mr Rayney stressed to him that the recordings had to be done legally and lawfully (Exhibit N at [980]­[982]).

166 Mr Pearson's evidence in the District Court was that Mr Rayney emphasised to him that everything Mr Pearson did to install a device had to be done lawfully and legally (Exhibit A page 571).

167 Mr Rayney's evidence before this Tribunal is that Mr Pearson told him he had worked for the Police doing information technology work (Exhibit N at [978]). Mr Pearson was doing work for the Police during the period of his interaction with Mr Rayney. Mr Rayney's evidence is that as a result of this, he was confident Mr Pearson would act lawfully in making any recordings of telephone conversations (Exhibit N at [955]).

168 Mr Rayney's evidence before this Tribunal is that he left the selection of a device and its installation entirely to Mr Pearson (Exhibit N at [990]­[992]; T:498­499). Mr Pearson's evidence in the District Court was that Mr Rayney played no part in the choosing, ordering, assembly, installing, locating or testing of the equipment (Exhibit A pages 564­567).

169 Mr Rayney's evidence before this Tribunal is that Mr Pearson initially told Mr Rayney that he could record telephone conversations using a scanner. Mr Pearson's evidence and his police statement of 29 August 2007 confirms this (Exhibit A, page 6 at [43]). Mr Rayney's evidence before this Tribunal is that he did not understand what a scanner was in a technical sense.

170 On Tuesday 17 July 2007, there were four telephone communications between Mr Pearson and Mr Rayney.

171 Mr Rayney and Mr Pearson met at Mr Pearson's home for a second time on 17 July 2007. Mr Pearson's evidence in his police statement of 29 August 2007 was that after Mr Rayney's first visit, Mr Pearson tested a scanner on his own phone but it was not very effective as it only recorded one side of the conversation (Exhibit A, page 8 at [61]).

172 Mr Pearson's evidence in the District Court was that he purchased a Uniden scanner and a Sony Notetaker on 17 July 2007. He identified Exhibit 3 in the District Court trial as an invoice for those purchases (Exhibit A pages 531­532).

173 Mr Pearson's evidence in his police statement of 29 August 2007 was that he suggested an alternative device consisting of two pieces of equipment, a CRU2 and a Sony Notetaker. The Sony Notetaker was the actual recording device. Mr Rayney agreed for Mr Pearson to purchase a CRU2 (Exhibit A at [61]­[62]).

174 Mr Pearson ordered the CRU2 from National Communications on 17 July 2007.

175 On Wednesday 18 July 2007 Mr Pearson paid for the CRU2 (Exhibit B).

176 Between Thursday 19 July and Sunday 22 July 2007, there were four telephone communications between Mr Pearson and Mr Rayney.

177 The CRU2 was delivered to Mr Pearson's house. There is some uncertainty about the precise date when the CRU2 was delivered but it was probably 19 or 20 July 2007. Although Mr Williams', the supplier's, evidence (Exhibit C) was that Mr Pearson received the device on 18 July 2007, it is more likely that it was received slightly later, on Thursday 19 July or Friday 20 July 2007, bearing in mind that it was only paid for on 18 July 2007 and sent by overnight express.

178 Mr Pearson's evidence in the District Court was that he then tested the CRU2 and Sony Notetaker on his own home phone for a few days (Exhibit A page 540).

179 Mr Pearson's evidence in his police statement of 29 August 2007 was that:

I didn't hear back from Lloyd, so on Sunday I rang him again. I spoke too [sic] Lloyd for a minute or so. I told him it worked and made arrangements for me to attend his house at 6 Monash Avenue in Como the following day at 1.00pm.

(Exhibit A page 9 [74])

180 There were two telephone communications between Mr Rayney and Mr Pearson on 23 July 2007.

181 Mr Pearson's evidence in his police statement of 29 August 2007 is that:

The following day Lloyd called me at about 12.00am to confirm I was coming around. I'm pretty sure this was a Monday.

(Exhibit A pages 9­10 [75])

182 Mr Rayney's evidence before this Tribunal was that on Tuesday 24 July 2007 Mrs Rayney sent emails to Mr Rayney confirming that she would be leaving for the airport at 4:30 pm on 25 July 2007 and returning on Monday 30 July 2007 (T:256 and T:261; Exhibit P; Exhibit A page 174).

183 On Wednesday 25 July 2007 at approximately 4:30 pm, Mrs Rayney and her daughters left the Rayney home for the Perth airport to fly to Melbourne.

184 Mr Rayney's evidence before this Tribunal was that Mr Pearson attended at his home on Wednesday 25 July 2007 after 4:30 pm to install the Device (T:180; Exhibit N at [1003]).

Mr Pearson's installation of the Device in the roof space

185 Mr Pearson installed the Device in the roof space above the alarm system containers. Mr Pearson's evidence in his police statement of 29 August 2007 was:

1. Lloyd then took me inside the house and I asked to see the man hole.
2. Whilst doing this I observed the alarm system connected to the phone line in the walk in robe of the front bedroom. This is just near the man hole.
3. I decided this would be a good place to put the recording device.
4. I told Lloyd that I needed to place the recording device in the manhole. This was because there was a phone point in the walk­in­robe as well and I needed access to a phone point.
5. Lloyd went and got a ladder and set it up in the walk-in-robe.
6. I climbed up the ladder and put my body halfway into the roof space. I saw a power point in the roof about a metre and a half away from the manhole.
7. I had my own tools with, me and I connected one end of a black telephone cord, which I had brought along myself, to the telephone outlet inside the walk-in-robe.
8. Then the other end of the telephone cord I connected to the telecommunications recording unit.
9. I fed the new telephone cord up through the existing hole that the original telephone cord went through into the ceiling.
10. I connected the recording device to the power point inside the ceiling.

(Exhibit A pages 10­11; see also Mr Pearson's evidence in the District Court, Exhibit A pages 541­548)

186 Mr Pearson's evidence in both trials was the he went into the roof space to determine where the network termination boundary was and that he installed the Device on the house side of the Network termination boundary rather than on the Telstra side (Exhibit A page 565). This is of significance when the Tribunal turns to consider whether the Board has established that Mr Rayney's conduct was illegal.

187 The Board relied heavily in its submission on that the fact that the Device was installed in the roof space as evidence of Mr Rayney's intention to conceal the Device and in effect, to have it operative for an extended period of time.

188 Mr Rayney's evidence before this Tribunal was that when Mr Pearson came to the house 'to set up the recording', Mr Pearson suggested it be in the walk through wardrobe next to the bedroom, below the manhole entrance to the roof space:

When Tim came to my home to set up the recording, he decided where to place it, not me. I did not see the device.

He suggested it be in a walk through wardrobe next to the main bedroom, below the manhole entrance to the roof space.

(Exhibit N at [990]­[991])

189 Mr Rayney's evidence was that he went off and did something else while the Device was being installed (see also Mr Pearson's evidence in the Magistrates Court, Exhibit A page 1176).

190 The Board further submitted that Mr Rayney admitted in his evidence before this Tribunal that he either got Mr Pearson a ladder, or showed him where the ladder was. The Board invited the Tribunal to infer that Mr Rayney must therefore have known that Mr Pearson had installed the Device in the roof space. Mr Rayney said that Mr Pearson would have needed a ladder to access the area where the alarm was, even without gaining access to the manhole (Exhibit N at [1004]­[1006]).

191 The Board submitted that Mr Pearson's conduct in installing the listening device in the roof space was itself direct evidence of the nature of Mr Rayney's instructions to him.

192 The Tribunal does not accept that such an inference can be drawn. The evidence of Mr Rayney and Mr Pearson is that the installation of the Device was left entirely to Mr Pearson.

193 The Board submits that the CRU2 could have been connected to any phone socket in the house (Exhibit A, Volume 5, Tab 10, pages 1714, 1716; Exhibit B (second last page)).

194 Mr Pearson's evidence is that he chose a position near the alarm system because of the significance of the position of a phone socket near the alarm system (Exhibit A page 1176). Connecting the Device to a telephone socket in the alarm system hardly seems calculated to conceal the Device.

195 The Board's submissions as to the place of the installation are premised on the proposition that the CRU2 could have been connected to any phone socket in the house. This is based on the contents of the CRU2 manual (Board Closing Submissions (BCS) at [100]; Exhibit A pages 1714 and 1716). The fact that the CRU2 could have been connected to any phone socket in the house is only significant if Mr Rayney was aware of this. However, the manual was never put to Mr Rayney. The Tribunal finds that there is no basis to draw any conclusion that Mr Rayney was aware of the mechanics of the installation or the specific requirements of the CRU2.

196 The Tribunal finds that there is no evidence that Mr Rayney gave any instruction to Mr Pearson on how or where to install the Device. In fact, all of the evidence shows that it was left entirely to Mr Pearson's discretion.

197 No inference can be drawn from the fact the Mr Rayney did not issue a negative instruction.

1. the Device was installed in the roof space;
2. Mr Pearson was the expert;

1. Mr Pearson was not acting on Mr Rayney's instructions as to the location of the Device;

1. Mr Rayney did not instruct Mr Pearson that the Device did not need to be installed in the roof space;
2. Mr Pearson's conduct in installing the device in the roof space does not provide a basis for an inference that Mr Rayney instructed or requested Mr Pearson that the installation be covert or clandestine; and
3. no inference against Mr Rayney can be drawn from the fact that Mr Rayney did not tell Mr Pearson not to install the Device in the roof space.

199 The alarm log showed 'LPT Low Power Trouble' on 25 July 2007 at 20:18:48 (Exhibit C). LPT indicates that the mains power had been cut to the alarm system (Exhibit K at [21]).

200 As a result of ARM receiving an LPT alert, Mr Kyle Maning, an employee of ARM, rang the Rayney home and spoke to Mr Rayney (Exhibit K at [22]).

201 The telephone records disclose that later that evening, Mr Rayney rang Mr Pearson on three occasions:

202 Mr Rayney gave evidence before the Tribunal that the alarm started sounding on the evening of 25 July 2007 and that he rang Mr Pearson (Exhibit N at [1068]). Mr Rayney's evidence is that the alarm malfunction continued until Mr Pearson attended the following morning (Exhibit N at [1072]).

203 The Board submitted that the fact that, when the alarm went off on the evening of 25 July 2007, Mr Rayney called Mr Pearson for assistance, rather than ARM, is evidence of concealment by Mr Rayney. Before the Tribunal, Mr Rayney explained his conduct on the basis that there was a logical connection between the alarm going off and Mr Pearson's installation of the listening device (T:287­290).

204 The Tribunal finds that Mr Rayney was aware that Mr Pearson was working in the area of the alarm boxes. It was logical that he would contact Mr Pearson.

205 The Tribunal does not draw any adverse inference against Mr Rayney from the fact that he contacted Mr Pearson on the evening of 25 July 2007, rather than ARM.

206 On 26 July 2007 at 7.07.56, the alarm log showed 'LBP Low Battery Power' (Exhibit C).

207 As a result of the LBP alert, Mr Merton Glass, an employee of ARM, rang the Rayney home and spoke to Mr Rayney (T:164; T:178; T:179; T:183; Exhibit C).

208 The evidence of Ms Glass was that the code LBP is an indication that the backup battery to the alarm system is starting to fail (Exhibit K at [27]). A backup battery lasts for 24 hours or more when it is new. When the battery is old it will not last as long (Exhibit C at [30]). The Tribunal finds that there is no evidence as to when the alarm system or the backup battery were installed.

209 The Board submits that Ms Glass's opinion is expressed in terms of a minimum, not a maximum battery life of 24 hours.

210 The Tribunal finds that over time batteries run down, even if Ms Glass's opinion was expressed as a minimum battery life, that can only have been the case when the battery was new. Over time, the battery life may well be less than 24 hours.

211 The telephone records disclose that following the call from ARM, Mr Rayney used his mobile to call Mr Pearson on his mobile at 7:15 am. The call lasted 1'27".

212 On 26 July 2007 at 7:24 am, a 'Tamper Alarm' was logged. This usually indicates that the alarm panel has been opened (Glass Exhibit K at [33]­[34]).

213 Mr Rayney's evidence before the Tribunal is that following his call to Mr Pearson, Mr Pearson came to the Rayney home and attended to the alarm (T:100, T:107, T:293; Exhibit N at [1022] and [1024]).

214 Mr Pearson's evidence in his police statement of 29 August 2007 is that he attended at the Rayney home to fix the alarm a couple of days after installing the Device (Exhibit A at [100] page 12).

215 In the District Court, Mr Pearson gave evidence that he attended the Rayney home the day after he installed the Device because of a problem with the alarm system arising from the power adaptor becoming detached from its socket (see below, Exhibit A pages 549­550).

216 Mr Pearson's evidence in the District Court was that when he attended the Rayney home following Mr Rayney's call about the alarm, he found that the alarm was flashing but not sounding (Exhibit A page 568).

217 At 8 am, a second LBT and a second alarm were logged (Glass Exhibit K at [36]).

218 Mr Rayney's evidence before the Tribunal was that when Mr Pearson attended on 26 July 2007, he told him that a power point had been nudged out of the power socket (T:292; Exhibit A page 549). Mr Pearson told Mr Rayney he had simply put the power plug back into the socket properly. Mr Pearson's evidence in his police statement of 29 August 2007 at [105]­[106] was:

I went into the walk-in-robe and checked the alarm system. I saw that the power adaptor had been nudged and was moved slightly, so even though it still looked plugged in, there was no power getting to the system, and that's why it was going off all the time.

I plugged the power adaptor back into the power point properly and this stopped the alarm going off.

(Exhibit A page 13­14)

219 At 8:25 am, a 'Restore' on the 'Low Battery Trouble' was logged. This indicates that the problem with the backup battery had been rectified. It could have been that the battery had been replaced or recharged from the mains power (Glass Exhibit K at [38]­[39]). The Tribunal finds that it is probable that the battery had been recharged from the mains power following the plug being plugged in properly by Mr Pearson.

220 Mr Rayney's evidence before this Tribunal was that after the alarm had been sorted out, Mr Pearson removed the Sony Notetaker from the roof space, and told him that he had removed it (Exhibit N at [1024]; T:292­293).

221 Mr Pearson's evidence in the District Court was that he never removed the CRU2 from the ceiling (Exhibit A page 553).

222 Mr Rayney's evidence before this Tribunal was that Mr Pearson went into the area of the manhole twice ­ first, to install the Device and, secondly, to remove the Sony Notetaker (Exhibit N at [1065]).

223 Mr Pearson's evidence in his police statement of 29 August 2007 at [107]­[109] was:

At the same time I took down the recording device, because we wanted to see what was on it.

Lloyd then asked me if I could copy the telephone voice recordings onto a disc for him.

I told Lloyd I could copy it onto his computer. He asked me how long it would take, and I told him about an hour. Lloyd then asked me if I could do it at my place.

224 Mr Pearson's evidence in the District Court was:

Did you do ­ did you have any cause to go up into the roof that day when you went to fix the alarm problem?---No, the ­ the alarm system's just below the ceiling space, so I don't believe there would be any necessity to ­ to do that.

All right. Did you ever go back up into the roof space?---Yes, I ­ I did attend those premises at a ­ on a ­ on a later occasion.

All right. Do you know how ­ how much later?---It may have been a week, perhaps.

All right. And why did you go back to those premises?---I ­ I returned to the premises to ­ to ­ to ­ to check on the existing CRU2 apparatus and to check the contents of the Sony 8500.

That's the recorder?---Yes.

...

You've told us that you then had ­ the CRU2 itself was still in the ceiling, but you had the recorder. Did you ever have cause to go back in the ceiling?---No, just only ­ only just to return the ­ the Sony Notetaker.

Right?---Yeah.

How many times did you go up into the roof?---On several occasions, yeah. Perhaps two or three, yeah.

Three?---Yeah.

Well, you told us about two, about when you ­ when you fitted it and then when you took the ­ the recorder - - -?---Yeah.

- - - and you downloaded and you put them on disc and you gave them to Mr Rayney?---Yeah.

When was the third time?---Yeah, I ­ I ­ I ­ I ­ probably say ­ say two. I ­ I wouldn't say there was a third occasion, so, yeah, I ­ I can't exactly remember. For that reason I ­ I ­ I'm sure that I went up there twice.

(Exhibit A pages 550, 553)

225 Mr Pearson's evidence in the District Court was that he was sure that he went up into the roof space twice (Exhibit A page 555; see also Exhibit A page 842 Stavrianou DCJ).

226 The Tribunal finds that Mr Pearson obviously went into the roof space on the first occasion to install the Device. Since the Sony Notetaker was removed from the ceiling on 26 July 2007, Mr Pearson must have entered the roof space again on 26 July 2007.

227 Mr Pearson's evidence in the District Court is that he downloaded the information from the Sony Notetaker onto a CD (Exhibit A page 551). Mr Pearson's evidence in his police statement of 29 August 2007 was:

1. I took the recording device back to my place and the next day I downloaded the recordings onto my hard drive and saved them into a folder.
2. I would have saved them-into my folder #########, or, Output, or Out, l'm not sure which one but my computer records might show it.
3. It took 112 minutes to download the telephone conversations.
4. Once these downloads were completed I copied them from the folder onto a DVD.
5. I did not listen to all of the conversations that had been taped, but I did hear about 40 to 45 seconds of one of the first telephone conversations recorded.
6. The voice was of a female, which I presumed was Corryn RAYNEY, who appeared to be talking to a close female friend.
7. One of the females voice every now and then had a slight Indian accent to it. The other female voice was a normal Australian accent.
8. The female with the Indian Accent was saying something about she could sense his fear, and about what he was going to lose, and that he should move out and get an apartment. This same female voice also said that he was a very wicked man.
9. That's about all I heard of the recording because I turned the sound down after that.
10. I only had the sound up at the start to make sure it was recording properly. I remembered what Lloyd had said to me about this being confidential and for this reason I did not listen to any more of the recordings.
11. Once I had downloaded the recordings onto my computer, I then burnt them onto a disc for Lloyd. I made two copies of the recordings as this is what Lloyd had requested.

(Exhibit A pages 14­16; see also pages 507­551)

228 Mr Pearson's evidence in his police statement of 29 August 2007 was that he used a program called 'Cool Edit' to process and divide up the recordings from the Sony Notetaker. Using the Cool Edit program Mr Pearson created a series of files identified by a number, the word 'Call', a number and the file extension .wav. Thirty files were created.

229 Mr Pearson's evidence in the District Court was that he listened to the phone conversations very briefly. He also gave evidence that there were a substantial number of conversations (Exhibit A page 551). Mr Pearson did not give any evidence in the District Court as to the content of the conversations.

230 At 11.40.47 WST (13.40.47 EST), a folder 01.wav. link was created on a CD (Exhibit D page 4; McKemmish T:159­162).

231 At 12.02.20 (WST) (14.02.20 EST), a restore point was created (Exhibit D page 5; T:160­162). This means that whoever was preparing the CD was working on it between 11.40 and 12.02 (WST), that is, 22 minutes (McKemmish T:162).

232 Mr Pearson did not state the basis for his statement that it took 112 minutes to download the conversations [paragraph 113]. Mr Pearson's evidence of the download time of 112 minutes is difficult to reconcile with the objective facts established by Mr McKemmish that it took 22 minutes.

233 Mr McKemmish analysed the data from the Monash Tower. The data does not disclose the length or duration of each wav file, apart from Call 01.wav which lasts 22 seconds. Nor does the data identify whether the wav file is a recording of a voice or a recording of something else (McKemmish T:165).

234 Mr Rayney's evidence was that Mr Pearson came back to the Rayney home on 26 July 2007 with the CD (T:291). He then put the CD in the Monash Tower. He played a call (Exhibit N at [1021]­[1026]; T:295).

235 Mr Rayney's evidence before the Tribunal was that it was probable that on this occasion he asked Mr Pearson about problems he had with the computer (Exhibit N at [1027]).

236 Mr Pearson's evidence was that he gave the CD to Mr Rayney. He also gave evidence that he may have put it into a computer at the Rayney home and shown Mr Rayney how it worked (Exhibit A page 552).

237 Mr Pearson's evidence in his police statement of 27 August 2007 was:

1. The next day I rang Lloyd and told him the discs were ready and he asked me to come around and drop them off.
2. I don't remember what time he told me, but it was at night when I went around.
3. Lloyd was the only one home when I got to his place. This time I drove my white SAAB hatchback and parked it on the street.
4. I gave Lloyd the two discs and told him how to play them. I asked him if he wanted me to show him and he said, 'Yes'.
5. He took me into a room in the house that looked like a study, it had a table and a computer set up in it.
6. It was a black desktop P.C. with a black CRT monitor.
7. Lloyd put one of the discs into the hard drive and I showed him how to play the recordings. He played one of the files and it worked. I don't remember what the recording was that he played.

(Exhibit A pages 16­17; see also Exhibit A pages 552­553)

238 At 8:24 pm WST (12.0.24 (UTC)), Call 01.wav was accessed in Windows Media Player on the Monash Tower (T:163; Exhibit D page 6).

239 At 8.24.57 pm WST (10:24.57 EST), Call 01.wav was deleted from the Monash Tower. The effect of this was to move the file Call 01.wav to the recycle bin of the Monash Tower (T:156; T:163).

240 The fact that the CD was created on 26 July 2007 and accessed on the Monash Tower on 26 July 2007 means that Mr Pearson must be wrong about retrieving the Sony Notetaker the next day (which would have been 27 July 2007). The Tribunal finds that Mr Pearson must have provided the CD to Mr Rayney on 26 July 2007 for it to be played on that day.

241 The Board and Mr Rayney differed as to whether the recording Call 01.wav was of an outgoing call or an incoming call.

242 Mr Rayney submitted that the Board's submission ignored Exhibit L, the witness statement of Clifford James Ferguson, an employee of the Police. Mr Ferguson's evidence was that the Call 01.wav file recorded an outgoing call because of the four digits heard at the start of the recording.

243 The Board played only one recording - Call 01.wav - to the Tribunal in the course of its case (Exhibit E).

1. whatever those four digits represent, if one listens closely to the recording, the female's breathing can be heard after the outgoing line has hung up;
2. this suggests that the female who answered the call was within the location where the recording device was installed, that is, within the Rayney home, in which case the only logical explanation is that it was one of Mr Rayney's daughters;

1. if that is the case, then it is direct evidence that the listening device was installed before Mr Rayney's daughters (and therefore Mrs Rayney) left for Melbourne;

1. as previously observed the call charge records do record a call lasting 16 seconds from Mr Rayney's mobile to his home phone at 11.59 am on 23 July 2007,the day on which the Board says the Device was installed; and
2. this may have been a test call following the installation of the device on that day.

245 The Tribunal finds that the quality of the recording is poor. Although there is a very brief sound, it is difficult to draw any conclusion as to whether it is breathing or not. Any conclusion as to what the sound is and what inferences are to be drawn are purely speculative and the Tribunal is not prepared to draw any such inference.

246 The Tribunal accepts the evidence of Mr Ferguson to the effect that the recording Call 01.wav is an outgoing call.

247 It follows that the Tribunal does not accept the Board's contention that the Call 01.wav recording is one of Mr Rayney's daughters answering the phone and therefore that it must have been recorded before 4:30 pm on 25 July 2007.

248 On 26 July 2007 at 8:25 pm, Mr Rayney called ARM to ask that any alarms recorded for the next 15 minutes be ignored (Glass T:303; Exhibit K at [40]). There is no evidence as to why Mr Rayney called ARM on this occasion.

1. On this same night I removed the whole of the recording device from the ceiling at the request of Lloyd.
2. I did this because Lloyd wanted me to make some modifications to the unit so I could remove the recorder and replace it with another one inside the ceiling.
3. By doing this I did not have to take the whole of the unit away with me to copy the recordings. I could just unplug the recorder and replace it with another. This way no telephone conversations would be missed whilst I had the unit at my place.
4. Lloyd then showed me to the door and I left with the recording unit.

250 On one view, the explanation may be that Mr Rayney thought that unplugging the recorder might have activated the alarm, but there is no evidence on his part and such an inference is entirely speculative. As such, the Tribunal is not prepared to draw an inference.

251 The alarm log shows a periodic test of the alarm system on Friday 27 July 2007 at 3:27 EST.

252 Mr Rayney's evidence before the Tribunal was that he asked Mr Pearson about a problem with the Monash Tower. Mr Pearson attended the Rayney home again while the family were in Melbourne (Exhibit N at [1030]).

253 Mr Rayney's evidence before the Tribunal was that on 27 or 28 July 2007, Mr Pearson attended at the Rayney home in order to fix the Monash Tower (T:299).

254 On Saturday 28 July 2007 before 9:20 am, Call 29.wav, Call 22.wav, Call 08.wav, Call 30.wav, Call 26.wav and Call 25.wav were accessed in Windows Media Player on the Monash Tower (McKemmish T:163; Exhibit D page 7).

255 At 9:20 am on 28 July 2007, Call 27.wav was accessed on the Monash Tower. This was the last file to be accessed (McKemmish T:163; Exhibit D page 7).

256 At some stage Call 02.wav was accessed but the date is unknown (T:163; Exhibit D page 6).

257 Mr Rayney said to this Tribunal in his evidence that the morning of 28 July 2007 was the last time Mr Pearson was at the Rayney home.

258 Mr Pearson's evidence is that he never returned to the Rayney home to remove the CRU2 from the roof space (Exhibit A page 553).

259 Mr Rayney's evidence was that all of the recording equipment, save for a black wire, was removed by him while the family was in Melbourne (Exhibit N at [1037]).

260 The Board alleged that on Sunday 29 July 2007, Mr Pearson reinstalled the listening device.

261 The evidence is that there was a telephone communication between Mr Pearson and Mr Rayney on 29 July 2007.

262 Mr Pearson's evidence in his police statement dated 29 August 2007 was:

1. I made the modifications to the unit the following day or the day after, I'm not quite sure but it was on a weekend.
2. Once I finished the modifications I rang Lloyd to let him know. Then I went around to his place about 3.00pm. This was either a Saturday or a Sunday.
3. I presumed there was nobody else home but Lloyd because I didn't see anyone else.
4. I re-installed the recording unit in the ceiling.
5. Lloyd paid me $250.00 for the modifications and the re-instalment of the unit.
6. Lloyd paid me In cash again, all in $50.00 notes.
7. Lloyd then thanked me again and said he appreciated it and I left.

263 There was a telephone communication between Mr Pearson and Mr Rayney on Monday 30 July 2007.

264 Mrs Rayney and the children returned from Melbourne on 30 July 2007 (T:261, T:262).

265 On Thursday 2 August 2007 there were four telephone communications between Mr Pearson and Mr Rayney.

266 Each of the communications is extremely short. The Tribunal finds that it is difficult to infer that there were any conversations, let alone any of substance. The Tribunal does not find that there were any conversations between Mr Rayney and Mr Pearson on 2 August 2007.

267 Mr Rayney's evidence is that by early August 2007, he and his wife had agreed to sensibly discuss how to resolve their separation (Exhibit N at [78]).

268 On Friday 3 August 2007 there were three telephone communications between Mr Pearson and Mr Rayney.

269 Mr Pearson's evidence in his police statement on 27 August 2007 was:

1. It was about a whole week that went by before I heard from Lloyd again. It was on a Friday during the day whilst I was at work that he sent me a text message asking me to call him.

[In the statement of facts in the Magistrates Court a date of [Friday] 3 August 2007 was given (Exhibit A page 900)].

1. I rang Lloyd on the Friday night and he asked me to purchase a new Sony recorder and come by on Saturday night to retrieve the recordings and swap the recorders over with the new one.

270 Mr Pearson's evidence in the District Court was that he went up into the roof space about a week later. On that occasion, he retrieved the Sony Notetaker. Once the Sony Notetaker was removed, the system was not capable of recording anything. The CRU2 was not itself a recorder (Exhibit A pages 550­551).

271 On Saturday 4 August 2007 there were two telephone communications between Mr Pearson and Mr Rayney.

272 Mr Pearson's evidence in his police statement dated 29 August 2007 was:

1. I know it was a Saturday night [4 August] he wanted me to come around, because I had a party to go to this night and I was a bit hesitant to go over.
2. So I went over to Lloyd's house, around 8.00pm. Lloyd appeared to be the only person home at this time.
3. I swapped the recorders over for Lloyd.
4. Lloyd paid me $400.00 in cash and this was $300.00 for making the copies and $100.00 for the cost of the new voice recorder.
5. Before leaving Lloyd's house he said to me, 'Now remember Tim this is confidential, I don't know you, this never happened'.
6. I took the recorder that I had removed from Lloyd's house back to my place and then I went to the party.

273 There were four telephone communications between Mr Pearson and Mr Rayney on Sunday 5 August 2007:

274 Mr Pearson's evidence in his police statement dated 29 August 2007 was:

1. The next day, Sunday [5 August], Lloyd rang me at about 2.00 pm and he wanted to drop past my place and pick up the recording.
2. I told him that I had not even done them yet, but I could have them done by 5.00 pm and if he comes to my place at this time he could pick them up.
3. I was in my car when he called me and I arrived home around 2.15 pm and immediately started transferring the voice recordings to my computer.
4. At about 4.45pm I tested the voice recordings to see if they were working. The sound card had not been working properly and the recordings were fragmented and unreadable.
5. I rang Lloyd straight away and told him that it had stuffed up and it would take another 3 hours for me to complete the copies.
6. We agreed that he could come around to my place at 8.00 pm and collect them then.
7. I re-started the process of copying the voice recordings and listened to part of one of the recordings to make sure it had work this time.
8. The conversation was the very last file on the computer, so it would have been one of the last telephone conversations recorded before I removed the recorder on the Saturday night.
9. It was the same female with the Indian accent speaking to another lady. The other lady was talking about something like an affidavit or some type of legal document.
10. The female with the Indian accent cut the other lady of short, saying we'll discuss it later, as if she didn't want to talk about it in anymore detail over the phone.
11. The female with the Indian accent said that she would meet the other lady at 1.30 at Ocean Reef.
12. That's all I can remember of that conversation. I then finished the copying.
13. Lloyd came around my place around 8.20 pm on this Sunday night to pick up the discs.

1. I gave him the disc and asked for another $100.00 as it took me an extra 3 hours to copy the recordings.
2. Lloyd asked me how to completely remove the telephone recording device from the ceiling.
3. I told him that he would need to remove the 4 way power extender, the box itself, and the power adapters that connect onto the power board.
4. I also told him that he would have to disconnect the black telephone cable that is connected to the middle socket on the call recorder.
5. I didn't tell him how to remove the black telephone cable from the telephone module point that is part of the alarm system. He's pretty clumsy when it comes to electrical stuff and he would have probably kept setting the alarm off.-
6. Lloyd gave me the $100.00 and before leaving told me, 'that if anyone asks, just tell them that you fixed my computer'.
7. That was the last time that I spoke to Lloyd. I did try and call him on his mobile the next day on Monday the 5th of August at 2.15 pm.
8. I wanted to speak to him to confirm that he could open the files I had copied for him, so I could delete the files on my computer.
9. Lloyd's mobile only rang twice and then went to message bank, but I hung up without leaving a message.
10. I deleted the files of my computer straight away.
11. I had no more dealings with Lloyd RAYNEY.

275 Mr Pearson's evidence in the District Court was that he gave Mr Rayney two CDs. Each CD was given to Mr Rayney on a separate occasion (Exhibit A page 555).

276 On Monday 6 August 2007 there were two telephone communications between Mr Pearson and Mr Rayney:

277 Each communication was extremely short. The Tribunal finds that there could not have been a communication of any significance.

278 The Board's case is that Mr Pearson's evidence is largely corroborated by the objective evidence. So before turning to Mr Pearson's evidence it is appropriate that the Tribunal considers what the objective evidence discloses.

The absence of any comparable data relating to the recordings from the Device after 26 July 2007

279 The Board led evidence from Mr McKemmish as to the evidence of recordings from the Device played on the Monash Tower relating to the point when the Sony Notetaker was removed from the roof space on the morning of 26 July 2007. That evidence forms part of the Board's objective evidence that the Board submits supports Mr Pearson's evidence.

280 The evidence led by the Board shows that the Police had access to Mr Pearson's computers and seized those computers, including the computer used to create the CDs. The witness statements at Exhibit M from Mr Davies, the Police computer forensic analyst, makes it plain that a forensic examination of Mr Pearson's computers also occurred.

281 The Tribunal finds that no evidence was adduced by the prosecution in the wilful murder trial of Mr Rayney before Brian Martin AJ of the forensic analysis of Mr Pearson's computer. For example, the data on the hard drive of Mr Pearson's computer was not copied and provided to Mr McKemmish for forensic analysis (T:154). No evidence was led before the Tribunal.

282 The Tribunal finds, more importantly, despite the fact that Mr McKemmish analysed the Monash Tower, there is no further evidence of any recordings other than those downloaded from the Sony Notetaker when it was removed by Mr Pearson on the morning of 26 July 2007. There is no evidence of any recordings being accessed on the Monash Tower other than those from no later than 26 July 2007.

283 No objective evidence by way of computer analysis of Mr Pearson's computers or Mr Rayney's computers was led in relation to Mr Pearson's allegation that he downloaded recordings from a Sony Notetaker after he allegedly reinstalled the Sony Notetaker in the Rayney home some time after the morning of 26 July 2007. The Board did not lead any such evidence or make reference to it in its submissions. In fact, the Board's case relied only on the specific computer analysis by Mr McKemmish in Exhibit D. Exhibit D was an extract from Mr McKemmish's report tendered by the Board.

284 The Tribunal finds that if Mr Rayney wanted and was given a CD of further recordings, the only reason would be that he wished to listen to those recordings. Yet, based on Mr McKemmish's evidence, there is no data from the Monash Tower to support further recordings being accessed. The Board did not put to Mr Rayney in cross-examination that he may have used another computer to access the alleged recordings by the Device. There is no objective evidence to support Mr Pearson's allegations that he provided Mr Rayney with CDs of recordings made by the Device after the morning of 26 July 2007 beyond those supplied on 26 July 2007.

The absence of phone calls between 23 July 2007 and 25 July 2007

285 The Board submits that the fact that there were no phone calls between Mr Pearson and Mr Rayney between 23 July 2007 and 25 July 2007 indicates that the CRU2 must have been installed on 23 July 2007.

286 In fact, the evidence is equivocal. The Tribunal finds that an inference could be drawn that an arrangement was made in the last phone call of 23 July 2007 to install the Device on 23 July 2007. Equally, an inference could be drawn that an arrangement was made to attend on 25 July 2007.

287 The Board alleged that on or about 5 August 2007, Mr Rayney collected a further disc of recordings from Mr Pearson and that Mr Rayney removed the listening device.

288 The Board's case that calls were recorded up until 5 August 2007 is not supported by any objective evidence. It depends on accepting one version of the evidence of Mr Pearson in his statements and rejecting aspects of his evidence before the courts. The Tribunal is not prepared to accept Mr Pearson's evidence in his statement and prefers his evidence in the courts.

289 The Board's submissions accepted that when Mr Pearson has given evidence orally, his recollection has been more vague and general than his written statements and affidavit would suggest and that Mr Pearson's evidence as to the precise dates and intervals between events is not accurate (BOS at [55]­[56]).

290 However, the Board submitted that Mr Pearson's evidence is consistent with the contemporaneous documents and record of relevant surrounding events and therefore reliable (BOS at [62]).

291 The Board submitted that Mr Pearson had been 'friendly' to Mr Rayney when giving evidence. The Board referred to certain observations made by Brian Martin AJ (Exhibit A pages 1382­1383; BOS at [60]).

292 Mr Pearson was not called to give evidence before the Tribunal. The Tribunal is in no position to evaluate Justice Martin's observations and commentary on the demeanour of Mr Pearson when he gave evidence before him.

293 The Board's submissions seem to be premised on a belief that Mr Pearson's witness statements (proofs) and affidavits should be given greater weight than his oral evidence where he was examined and cross­examined.

294 The Tribunal is unable to accept that as a valid premise. In our justice system the proof is not the truth. The truth is to be determined on the basis of the oral evidence of a witness or their written statement, subject to cross­examination. The fact that a witness has not come up to proof impunges the proof, not the oral evidence given under oath.

295 To the extent that the Tribunal has accepted Mr Pearson's evidence, where there is a conflict in Mr Pearson's evidence between his statements and transcripts of his oral evidence, the Tribunal has given greater weight to his oral evidence.

296 The Board submitted that Mr Pearson had no incentive to make up allegations against Mr Rayney (BOS at [57]). However, the Tribunal notes that it does not follow that because a witness is honest his recollection is necessarily reliable.

297 In Mr Pearson's statement of 29 August 2007, he stated that he received a call from Mr Krasenstein sometime around 20 July 2007 (Exhibit A page 1 at [6]).

298 In Mr Pearson's evidence of 1 May 2015 in the District Court, he stated that he first met Mr Rayney in August 2007 (Exhibit A page 528). Although Mr Pearson subsequently identified the date of the meeting between him and Mr Rayney as being in July 2007 (Exhibit A page 535) it was plain that he was led by counsel for the Crown as to the date (Exhibit A page 487 and 490).

299 The evidence establishes that Mr Pearson and Mr Rayney first met on 16 July 2007, that is, four days before Mr Pearson's recollection of the first telephone call from Mr Krasenstein. Mr Pearson did not give any other dates in his statement of 29 August 2007 until he identified dates in August 2007.

300 In Mr Pearson's statement of 29 August 2007, he did not give a date in relation to the installation of the Device (Exhibit A page 1). Neither does he give a date in his statement of 31 October 2007 (Exhibit A page 31).

301 It is not until Mr Pearson's statement of 3 October 2007 that a date of 16 July 2007 is mentioned (Exhibit A page 28 at [24]). No explanation is offered as to the change of date. No useful purpose is served by inferring why Mr Pearson's evidence as to the date changed.

302 There is no issue as to the date of the first meeting. However, the fact that counsel for the Crown in the District Court found it necessary to lead Mr Pearson as to the date shows that Mr Pearson had no real idea of the relevant dates and that any evidence he gave as to dates was essentially a reconstruction. The Tribunal is not critical of Mr Pearson for reconstructing the dates. The Tribunal simply finds that Mr Pearson's evidence as to dates is unreliable.

303 The Tribunal finds it strange that the Board on the one hand asks the Tribunal to accept Mr Pearson's evidence and on the other hand draws attention to Brian Martin AJ's criticism of him as a witness. The Board has also sought to cherry pick Mr Pearson's evidence so that it accords with the Board's case. This is unsatisfactory. The Board did not establish any basis for preferring Mr Pearson's evidence in his statements to his evidence before the courts.

304 The Tribunal has concluded that Mr Pearson is an unreliable witness. His evidence was inconsistent and his recollection was poor.

305 The Tribunal does not accept the Board's submission that the objective evidence supports Mr Pearson's evidence, particularly after 26 July 2007.

306 Mr Rayney gave his evidence in a straightforward manner. The Tribunal found him to be endeavouring to give his evidence to the best of his recollection, bearing in mind that these events occurred some years ago and that during and since that time, Mr Rayney has gone through significant personal trauma.

307 The Tribunal prefers the evidence of Mr Rayney over that of Mr Pearson.

308 Apart from the contents of Call 01.wav, the only evidence as to the recordings' content is the evidence of Mr Pearson from his police statement of 29 August 2007 (at [115]­[118]). Substantial questions remain in respect of Mr Pearson's evidence as to the content of the recordings and the supposed telephone conversations between Mrs Rayney and third parties and the Tribunal is not prepared to accept that evidence without it being tested or substantiated.

309 The Tribunal is left in the position that there is no reliable evidence as to the contents of the calls recorded by the Device.

310 Mr Rayney made all payments to Mr Pearson in cash. The Board sought to have the Tribunal draw an adverse inference against Mr Rayney from the fact that he paid Mr Pearson in cash (BOS at [79]­[84]). The Tribunal assumes that the Board's contention is that by paying in cash, Mr Rayney was somehow trying to conceal his involvement.

311 Paying tradespeople in cash is not unusual and payment by cash of itself does not lead the Tribunal to draw an adverse inference. The Tribunal would only draw such an inference if there was associated conduct such as giving a false name.

312 If Mr Rayney wished to conceal his activities, as suggested by the Board, it is difficult to accept that he would have taken up Ms O'Brien's suggestion and contacted a technician such as Mr Pearson through Ms O'Brien's brother. It would have made far more sense to contact a third party without links to Mr Rayney or his friends and associates.

313 Mr Pearson's evidence is that Mr Rayney was completely open about his name, address and telephone number (Exhibit A page 562). There is no evidence that Mr Rayney endeavoured to conceal his visits to Mr Pearson or Mr Pearson's subsequent visits to the Rayney home.

314 The Tribunal does not accept that there was anything untoward in the fact that Mr Rayney visited Mr Pearson in the evening and telephoned him in the evening. It strikes the Tribunal that Mrs Rayney might have expected Mr Rayney to be home in the evenings rather than during the day. If Mr Rayney had sought to avoid Mrs Rayney being aware of his absence, it is more likely that he would have visited or telephoned Mr Pearson during the day.

315 Mr Rayney dealing with Mr Pearson in the evening was simply consistent with any practitioner attending to his personal affairs ­ out of hours.

316 The Tribunal does not draw any adverse inference against Mr Rayney from the fact that he paid Mr Pearson in cash.

317 The Tribunal does not accept that Mr Rayney was trying to conceal his involvement.

Were children present when the Device was installed?

318 Mr Pearson gave evidence that a child, or children, were home when he arrived to install the Device. That would be consistent with his attendance at the Rayney home on 23 July 2007, a pupil free day.

319 In Mr Pearson's police statement of 29 August 2007, he gave evidence that when he attended the Rayney home on the first occasion he was 'met at the door by his daughter, she was young, I wouldn't want to guess her age' (Exhibit A page 10 at [79]; Exhibit A page 35 at [79]).

320 At the District Court trial, Mr Pearson gave evidence that only Mr Rayney and his two children were present (Exhibit A page 559).

321 Mr Rayney's evidence before the Tribunal was that he was the only person home when Mr Pearson arrived on 25 July 2007. That is consistent with Mrs Rayney and the children having left for the Melbourne flight at 4:30 pm.

322 The Board submitted that Mr Rayney's children were relatively young at the time and, on Mr Rayney's evidence, he left Mr Pearson to install the Device, which would be consistent with him looking after the children at the time.

323 In fact, Mr Rayney's children were 10 and 13 and it is not inconceivable that Mr Rayney would not have needed to look after the children at that age. However, the Tribunal finds that other inferences are equally open to it, such as, Mr Rayney might have returned to working on a case or he might have watered the garden. There are many possibilities. The inference suggested by the Board is one of many open and entirely speculative.

324 The Board submitted that what remains completely unexplained is why, on Mr Rayney's version of events, any calls would have been downloaded or played or otherwise accessed from the CD on his computer on 26 July 2007 given that, on his evidence, he knew he had not had a phone conversation with Mrs Rayney, that there would have been very few calls recorded over the evening of 25 July 2007 (and certainly far less than 30), and on his evidence he would have had no interest in listening to any of them (T:296). The Board submitted that this provides a basis for drawing inference that the Device must have been installed before 25 July 2007.

325 Mr Rayney's explanation to the Tribunal as to why a CD was made by Mr Pearson on 26 July was that Mr Pearson was to show Mr Rayney how a CD could be inserted into his home computer, how to access a wav file and how to play it. The Tribunal finds that this is consistent with one call being copied onto the hard drive and then deleted. In effect, it may well have been a test to see if the system was working.

326 In relation to the alleged call on 23 July 2007, the Board argued that there may have been a test call following the installation of the Device.

327 The Tribunal accepts Mr Rayney's evidence as to why he accessed the recordings on 26 July 2007 ­ that is, to test the Device to see if it was recording successfully.

Why wasn't the Sony Notetaker reinstalled after 26 July 2007?

328 The Board argued that if Mr Rayney's explanation were true, this would make absolutely no sense at all. The Board submits that:

1. according to Mr Rayney, the listening device had only been installed on the afternoon of 25 July 2007, supposedly for the purpose of recording a telephone call which Mr Rayney intended to have with Mrs Rayney;
2. according to Mr Rayney, he had a window of only four or five days to have that call;

1. but the Device was then removed by Mr Pearson the following day, before Mr Rayney had even spoken with Mrs Rayney (T:293­294).

1. Mr Rayney says he did not object to Mr Pearson removing the device (T:295);
2. he let him remove it (T:294);

1. he did not tell Mr Pearson to put the Device back, even though (so Mr Rayney says) the whole purpose of engaging Mr Pearson to install it was to record a proposed telephone conversation with Mrs Rayney;

1. further, he had paid Mr Pearson quite a lot of money to install it (T:297­298);
2. Mr Rayney's evidence was that when Mr Pearson came back on 26 July 2007 with the CD of recordings, he did not reinstall the listening device and Mr Rayney did not ask him to;
3. Mr Rayney did not recall whether Mr Pearson brought the Device with him when he came back on 26 July 2007, but said that if he did, he did not reinstall it (T:294­298);
4. after Mr Pearson had taken the Device away on 26 July 2007, there was no telephone contact between Mr Rayney and Mr Pearson on 26, 27 or 28 July 2007;
5. he did not telephone Mr Pearson to ask him to reinstall the Device, even though he had only a four or five day window to record the telephone conversation that he says he wanted to have with Mrs Rayney (T:298­299); and
6. in fact, and again entirely inconsistent with Mr Rayney's explanation, Mr Rayney says that Mr Pearson came back on 27 or 28 July 2007 to fix his computer (even though there is no record of any telephone contact between them on either of those days), but he still didn't ask Mr Pearson to reinstall the listening device (T:299­300).

330 The Board submitted that if Mr Rayney's explanation were true, it simply makes no sense that Mr Pearson would have removed the Sony Notetaker on 26 July 2007, that Mr Rayney would have let him, or that Mr Pearson would have made a disc of recordings from the device when it had been installed for less than 24 hours and Mr Rayney had not had the supposed telephone call with Mrs Rayney which, he says, was the sole purpose for the device being installed [119], when on Mr Rayney's evidence, he knew there was nothing on the disc for him to listen to (T:296).

331 The Board submitted that the true position, consistent with Mr Pearson's evidence and all the contemporaneous documents, events and circumstances, is:

1. that Mr Pearson installed the listening device on 23 July 2007;
2. that is why Mr Pearson removed it on 26 July ­ because it had already recorded two or three days of Mrs Rayney's private telephone conversations on the home telephone over the period 23 to 25 July 2007, before she went to Melbourne;

1. that is why Mr Pearson copied the recordings to disc on 26 July 2007;

1. that is why there were at least 30 calls with the file naming structure 'call ##.wav' recorded on the listening device and copied to disc;
2. that is why 10 audio files with the file naming structure 'call ##.wav' were accessed on Mr Rayney's computer on 26 and 28 July 2007;
3. that is why there was no telephone contact between the practitioner and Mr Pearson from 26 to 29 July (after the 7.15 am call on 26 July) ­ because Mrs Rayney was still away until 30 July, and Mr Pearson had taken the device away as requested by the practitioner and he reinstalled it on 29 July 2007.

332 The Tribunal finds that the objective evidence does not support the Board's case.

333 The Tribunal accepts that Mr Rayney has offered no adequate explanation as to why he did not have the Sony Notetaker reinstalled after 26 July 2007. However, the fact that Mr Rayney did not offer any adequate explanation cannot provide a basis for drawing an inference contrary to the objective evidence, based on the computer analysis, that there were no such recordings.

334 Objective evidence from the computer analysis could have provided a basis for drawing the suggested inferences. However, in the absence of such evidence, the suggested inferences are purely speculative. Indeed, the absence of such evidence leads to the inference that there was no such recordings because there is no objective evidence.

Can anything be made of the number of telephone calls on the Rayney home landline?

335 One might have expected a complete record of the number of telephone records of calls to and from the Rayney home landline during the relevant period to be tendered as evidence. This did not occur.

336 The Board submits that Mr Rayney's evidence that the Device was installed on 25 July 2007 fails to accommodate the fact that the file names given to the audio files downloaded by Mr Pearson plainly suggest that at least 30 audio files were on the disc that was played on Mr Rayney's computer, and the fact that 10 audio files were accessed on his computer on 26 and 28 July 2007.

337 As mentioned, the Tribunal has a problem in drawing an inference from the number of telephone calls because the telephone records are incomplete.

338 The alarm at the Rayney home was monitored by a telephone system. The alarm was triggered by the dislodging of the mains power socket as there were automated 'calls' in the period; calls from the alarm company to the house; attempted calls by Mr Rayney to Mr Pearson (to have him come and fix the alarm) and actual calls by Mr Pearson.

339 The Tribunal finds that no firm inference can be drawn from the number of files created by Mr Pearson. For example, there were four telephone communications between Mr Rayney and Mr Pearson on 4 August 2007. Plainly, none of these calls were of any substance.

Records of telephone contact between Mr Rayney and Mr Pearson

340 The Board submitted that although Mr Rayney says in his SIFC at paragraph 16 that his communications with Mr Pearson after their initial meeting (on 16 July 2007) were 'limited in number', the call charge records demonstrate significant telephone contact between Mr Rayney and Mr Pearson over the period 15 July to 6 August 2007 (Exhibit A, Vol 5, Tab 10, pages 1733­1738).

341 The evidence shows, of the 32 telephone communications between Mr Pearson and Mr Rayney, 16 were less than 30 seconds in duration. After 28 July 2007, only one call was longer than 45 seconds.

342 In total, the Board submitted, there were 32 telephone calls between them and two SMS messages.

343 Mr Rayney submitted that, significantly, Mr Pearson's recollection was similar to that of Mr Rayney's (Exhibit A Vol 3, page 1182). Mr Pearson was asked 'and how many times you spoke to each other on the phone? ­ 6 or 7'. The calls that Mr Pearson made may have been diverted to Mr Rayney's chambers or to his secretary (T:309) or simply (after a few seconds) abandoned.

1. there were a further 17 phone calls or SMS messages between Mr Rayney and Mr Pearson between 29 July and 6 August 2007;
2. that these 17 further telephone calls and messages were completely unexplained on Mr Rayney's evidence, other than the explanation offered from the bar table that Mr Pearson saw Mr Rayney as a 'cash cow' or 'soft touch' (T:185) ­ an explanation which was but faintly embraced by Mr Rayney who was effectively unable to explain any of these calls (T:303­310); and

1. that these further calls took place because, as Mr Pearson says, the device remained in place until 5 August 2007 or thereabouts when Mr Rayney removed it.

345 The Board invited the Tribunal to draw an adverse inference from the fact that Mr Rayney said in chief that most telephone calls with Mr Pearson were to organise his attendance or meetings (Exhibit N at [999]). In cross­examination, he qualified this to 'meetings or payments' (T:309).

346 The Tribunal does not regard the difference as significant and is not prepared to draw an adverse inference.

Would Mr Rayney have used his dictaphone if he only wanted to record his telephone conversation/s with Mrs Rayney?

347 The Board submitted that given Mr Rayney could have used a cheap disposable dictaphone rather than the Device, for Mr Rayney to arrange for Mr Pearson to install a call record unit to record a conversation that he proposed to have with his wife was 'ridiculous'.

1. Mr Rayney first recorded nine conversations with her using his handheld digital dictaphone in an attempt to try and obtain a record of her qualifying in some way the insinuation which he says she made. Two of those conversations were by telephone. The other seven took place face to face;
2. on Mr Rayney's evidence, his purpose in recording those earlier telephone (and other) conversations with Mrs Rayney was exactly the same purpose he says he had for engaging Mr Pearson in July 2007 to install the listening device in July 2007;

1. Mr Rayney had been unsuccessful in those earlier conversations in obtaining the record that he says he wanted in relation to the insinuation;

1. but this lack of success had nothing to do with the means of recording, that is, the use of the dictaphone;
2. rather, it was either because they started arguing or their conversations were interrupted, because (on his evidence) Mrs Rayney knew their conversations were being recorded, or perhaps because she simply refused to say what he wanted her to say to him;
3. Mr Rayney still had the dictaphone in July 2007 ­ his evidence is that he still had it as at 6 August 2007 when he played it to Mr Carr, and his evidence left no room for uncertainty or doubt about that;
4. in any event, he said it was a relatively inexpensive digital dictaphone, costing about $50. Cost was plainly not the issue, particularly given that he was prepared to pay Mr Pearson 'high hundreds' of dollars to install the listening device;
5. in fact, on Mr Rayney's own evidence he effectively regarded the digital dictaphones as disposable devices, which (if one accepts his evidence on this point) he simply threw away after he had used them;
6. in all these circumstances, Mr Rayney's explanation that he went to the trouble and expense of engaging Mr Pearson to install a listening device simply to record a particular telephone conversation that he proposed to have with his wife, is with respect ridiculous;
7. Mr Rayney used his mobile phone quite regularly;
8. but under his supposed plan, he would have to have been home at exactly the right time to make or receive the intended call on the home telephone;

1. on his explanation, he could not, for example, make or receive the call on his mobile or work telephone, even though three of the five days in question were weekdays, Thursday 26 July, Friday 27 July and Monday 30 July 2007;

1. on the other hand, Mrs Rayney did not have a mobile phone. She used the home telephone to make and receive phone calls when she was at home (T:212­213);
2. those were the telephone conversations which the practitioner wanted to (and did) record.

349 Mr Rayney submitted that subjectively he needed a clear and indisputable retraction, or acknowledgment that no insinuation was made or intended of what had been put in writing by Mrs Rayney on 13 July 2007. Mr Rayney gave clear evidence as to what he contemplated doing (T:264, T:265).

1. quite obviously, he intended at some time whilst Mrs Rayney was in Melbourne and when the opportunity arose such as when his daughters were asleep in one of the apartments) that he would have a conversation with Mrs Rayney utilising either the land line at the apartment or one of his daughters' mobile telephones;
2. the conversation, he hoped, was to talk about the children, be pleasant and suggest to her that they would both have to do things (himself included) to put the interests of the girls first;

1. in that context, he genuinely hoped to be able to have Mrs Rayney either recant from the insinuation contained in her email or say that there was no insinuation intended;

1. it is not surprising that Mr Rayney, in those circumstances, would want a clear lawful recording that could be used if Mrs Rayney ever sought to raise again the insinuation.

351 In effect, Mr Rayney submitted that he used the Device because of the quality of the recordings. The Tribunal accepts Mr Rayney's evidence as to his reason for using the Device.

Did Mr Pearson install the Device on 23 or 25 July 2007?

352 We know from Exhibit C that the alarm problem arose on 25 July 2007 and not on 23 July 2007. If Mr Pearson's evidence in the District Court that he attended the day after he installed the Device to fix the alarm system is accepted, he must have installed the Device on 25 July 2007. An installation on 25 July 2007 is consistent with the alarm log (Exhibit C).

353 The Board submitted that nothing in the fact that the alarm went off on the evening of 25 July 2007 is inconsistent with the listening device having been installed on 23 July 2007, in that unless the alarm started to sound immediately upon Mr Pearson installing the device (there is no suggestion that it did, and if it did then Mr Pearson would have rectified the problem at the time), it would be speculation as to exactly when or how the power plug became loose (Board's Closing Submissions (BCS) at [109]).

1. there would be no reason why the alarm would sound on the evening of 25 July 2007 if Mr Pearson had installed the Device and knocked the electric plug or failed to adequately reinsert into the socket on 23 July 2007;
2. the suggestion made from the bar table by Senior Counsel for the LPB of 'gravity' is illogical;

1. and, in any event, inconsistent with the photographs attached to Mr Thompson's statement at Exhibit J; and

1. the suggestion that the device operated on battery power from 23 July 2007 overlooks the first alarm on 25 July 2007 noting mains power had been cut.

355 The Tribunal finds that the logical explanation for the LPT at 8 pm on 25 July 2007 is that Mr Pearson knocked the power plug of the power cord to the alarm system while he was installing the Device on 25 July 2007, causing the LPT. This is the more probable explanation of the LPT on 25 July.

356 The Tribunal finds that thereafter, the alarm system operated on battery power. The alarm sounded on the evening of 25 July 2007 causing Mr Rayney to call Mr Pearson.

357 The Tribunal finds that Mr Pearson installed the CRU2 at the Rayney home on 25 July 2007. The Tribunal accepts Mr Rayney's evidence that Mr Pearson attended on 25 July 2007 and that he attended after Mrs Rayney and the children had left, that is, after 4:30 pm. This was Mr Pearson's first attendance at the Rayney home.

358 The Tribunal accepts the evidence of Mr Rayney before this Tribunal and Mr Pearson in the District Court that Mr Pearson attended on the following day, 26 July 2007 in the morning, to fix the problem with the alarm.

359 The Tribunal accepts Mr Pearson's evidence in the District Court that the cause of the alarm failure was that he dislodged the power plug to the alarm system from the power socket and that he remedied it by inserting the power plug properly into the socket.

360 The Tribunal finds that Mr Pearson entered the roof space for a second time on 26 July 2007 to remove the Sony Notetaker so that he could take it to his home to download the recordings onto a CD.

361 The Tribunal finds that Mr Pearson attended Mr Rayney's home again on 26 July 2007 when he gave the CD to Mr Rayney and showed him how to access the CD.

362 The Tribunal finds that Mr Pearson attended Mr Rayney's home again on 28 July 2007.

363 The Tribunal finds that Mr Pearson never re-installed a Sony Notetaker into the ceiling on the basis that:

1. Mr Pearson's evidence in the District Court was that he only went into the roof space twice;
2. Mr Rayney's evidence; and

1. the absence of any evidence of recordings after 26 July 2007.

364 The Tribunal rejects Mr Pearson's evidence in his statements that he entered the roof space a third time to re­install the Sony Notetaker and that further recordings were made.

1. Mr Rayney's statements about lawfully recording the conversations were self­serving;
2. Mr Rayney and Ms O'Brien discussed recording telephone conversations;

1. it is a matter of general knowledge that recordings of telephone conversations may be unlawful;

1. Mr Rayney gave similar evidence about giving an instruction to Mr Pearson that the installation was to be 'lawful' (T:258, T:273-274, T:277);
2. this is similarly self­serving;
3. it was described by Brian Martin AJ as 'disingenuous' (Exhibit A, Vol 4, page 1383 at [183]-[185]);
4. see also Mr Pearson's re-examination on the subject in the District Court trial (Exhibit A, Vol 2, pages 532­533).

366 Brian Martin AJ did not have the advantage of seeing Mr Rayney give evidence.

367 Mr Rayney's statements also need to be seen in the context of the fact that:

1. he did not attempt to conceal his involvement; and
2. Mr Pearson was working for the Police at the time.

368 It is not unreasonable to infer that if someone is working for the Police they will generally act lawfully. It is not unreasonable to infer that Mr Pearson would have the necessary information to act lawfully when installing the Device.

369 The fact that recordings may be unlawful makes sense of Mr Rayney asking Mr Pearson and engaging him.

370 In these circumstances there is no adequate basis for inferring that Mr Rayney's statements were self­serving and the Tribunal does not accept that Mr Rayney's statements were self­serving.

Not passing over telecommunications system - section 7(1) of the Telecommunications (Interception and Access) Act 1979

371 The Board adduced no evidence as to the nature of the CRU2.

372 The prohibition in s 7(1) of the Telecommunications (Interception and Access) Act 1979 is in the following terms:

(a) intercept;

(b) authorise, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunication system.

[50]

373 Section 5 of the Telecommunications (Interception and Access) Act 1979 defines a 'Telecommunications Network' as:

... a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication.

374 Stavrianou DCJ accepted the defence submission that the mere fact of recording a telephone conversation is not unlawful unless the means by which the conversation is recorded is a means which is in contravention of the Telecommunications (Interception and Access Act) 1978 (Exhibit A page 884).

375 In the District Court, Mr Rayney submitted that:

Specifically, we have no evidence that identifies the practical boundaries of the telecommunications network and what, if any, significance there might be from a legal and practical perspective of the distinction between the carrier side of the telecommunications network and the customer side of the telecommunication network.

(Exhibit A page 883)

1. it was unnecessary to adduce expert evidence as to the phrase 'telecommunication network';
2. the point of the definition of 'telecommunication network' the Telecommunications (Interception and Access) Act 1978 is to distinguish a telephone line, or telephone communication, from a radio communication;

1. a telecommunication system is defined in the Telecommunications (Interception and Access) Act 1978 by reference to a telecommunication network.

The preamble to the Telephone Interception Act states that:

This is an Act to prohibit the interception of another access to telecommunications, except where authorised in special circumstances, or for the purpose of tracing the location of callers in emergencies and for related purposes.

Section 5 is a very broad interpretation provision and it commences with the words:

In this Act, unless the contrary attention appears, no such contrary intention appears in relation to the definitions of telecommunication system or telecommunications network.

Section 5(5) of the Act seeks to elucidate the definitions of telecommunications network being within Australia and it refers to earth­based facilities and there's also reference in that same section to satellite-based facilities.

I do not accept the Crown's submission as to the definition a telecommunication network is specifically defined as by reference to guided or unguided electromagnetic energy. It is not the case where the jury could be told, as suggested, that a line was a part of a telecommunication network.

That is because a telecommunication network has a specific quality referable to its means for carrying communication, that is, by means of guided or unguided electromagnetic energy. It is accepted that no evidence was adduced in that respect. The charge cannot accordingly be established as the jury could not be satisfied that the communication had passed over the telecommunication system.

(Exhibit A page 886)

378 Although Judge Stavrianou's ruling was obiter, the Tribunal agrees with and adopts His Honour's reasoning in support of his ruling as set out above.

379 The Board could have led expert evidence to address his Honour's ruling but did not do so.

380 Given that the Board's case did not establish that the Device recordings were unlawful, the submissions made by it that Mr Rayney knew his conduct was unlawful are misplaced and irrelevant.

Surveillance Devices Act 1998 (WA) s 5(1) and s 34

381 The Board alleges that Mr Rayney's conduct in relation to the Device constituted offences against s 5(1) and s 34 of the Surveillance Devices Act 1998 (WA).

382 Section 5(1) of the Surveillance Devices Act 1998 provides:

1. Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device ­

(a) to record, monitor, or listen to a private conversation to which that person is not a party; or

(b) to record a private conversation to which that person is a party.

383 Section 34 of the Surveillance Devices Act 1998 provides:

A person shall not possess a surveillance device in the knowledge that it is intended or principally designed for use in contravention of any of section 5, 6 or 7.

384 It is important to bear in mind that Mr Rayney was originally charged with an offence under the Surveillance Devices Act 1998 which was subsequently substituted with charges under the Telecommunications (Interception and Access) Act 1979.

385 The evidence in the trial before Stavrianou DCJ was directed to the Telecommunications (Interception and Access) Act 1979. The Board relied on that evidence before the Tribunal. Mr Rayney was not cross­examined by the Board as to the elements of the Surveillance Devices Act 1998. While that may not have been strictly necessary, it is inherently unfair that the Board failed to do so in disciplinary proceedings which are quasi-criminal.

386 There is an obvious potential inconsistency between the Surveillance Devices Act 1998 and the Telecommunications (Interception and Access) Act 1979 under s 109 of the Commonwealth of Australia Constitution Act (Constitution).

387 Despite s 109 of the Constitution being raised in argument, the Board did not address a s 109 inconsistency by reference to any authority (T:59­61).

388 In the absence of the Board arguing or establishing that the Surveillance Devices Act 1998 is consistent with the Telecommunications (Interception and Access) Act 1979, the Tribunal is not prepared to find that Mr Rayney's conduct in relation to the Device was in breach of the Surveillance Devices Act 1998.

1. after the Police had executed search warrants at the Rayney home and office on 20 September 2007;
2. when Mr Rayney knew the search warrants included the first and second dictaphones;

1. when the search warrants were executed after Mr Rayney had been named as the prime and only suspect in his wife's murder;

1. Mr Rayney had deliberately disposed of the dictaphones to ensure that the dictaphones and the original recordings contained on them were placed out of the reach of authorities.

390 The Board alleged that to deliberately dispose of the first and second dictaphones in those circumstances was an unlawful destruction of evidence contrary to s 132 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and an attempt to pervert the course of justice contrary to s 143 thereof.

Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a crime, and is liable to imprisonment for 7 years. (Tribunal emphasis)

Any person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.

393 An allegation of a breach of s 132 and s 143 of the Criminal Code against a practitioner is an extremely serious allegation.

394 The Board's allegations arose from Mr Rayney using a hand held dictaphone to record conversations between himself and Mrs Rayney using the first dictaphone and between himself and the Police using the second dictaphone. The contents of each of the dictaphones were transferred to separate CDs by Mr Rayney.

395 The two CDs of the Rayney conversations and the Police conversations were kept at Mr Rayney's office and were seized by Police when they searched his office on 20 September 2007 (Exhibit N at [909]­[910]).

396 Thereafter, Mr Rayney made a claim of legal privilege over the CDs.

397 Mr Rayney's claims for legal professional privilege were heard in the Magistrates Court on 19 November 2009.

398 The onus of establishing legal privilege before Magistrate Flynn rested on Mr Rayney (AW at [23]). Magistrate Flynn found Mr Rayney had not discharged the onus on him to establish that legal professional privilege applied to the recordings on the CDs.

399 The Court of Appeal upheld Magistrate Flynn's finding that the dominant purpose of those recordings was not to obtain legal advice and therefore that the recordings were not legally privileged.

400 The Board submitted that its case in respect of the disposal of the dictaphones was straightforward, and ultimately turned upon Mr Rayney's own evidence at the hearing (T:311­319) and the findings of the Court of Appeal (Exhibit F).

The first dictaphone and Mr Rayney's meeting with Mr Carr

401 Mr Rayney's evidence before this Tribunal was that, before 6 August 2007, he had decided not to record further conversations with his wife (T:207).

403 Mr Rayney's evidence before this Tribunal is that, at the meeting with Mr Carr, he played either one or two recordings of his conversations with Mrs Rayney using the first dictaphone (Exhibit N at [798]; see also Exhibit A page 1077). He believed that he transferred the recordings from the first dictaphone to the CD on 6 or 7 August 2007 (Exhibit N at [804]; T:206).

404 Mr Carr's evidence before Magistrate Flynn was that he made a file note of the contents of the recording Mr Rayney played to him (Exhibit A page 1040).

405 The contents of the file note appear at Schedule 6 to the Court of Appeal's decision in AW.

The file note dated 6 August 2007 made by Mr Carr

Lloyd Rayney attended the office on 6 August 2007 in response to his request for an urgent appointment. He came armed with some tapes of recordings with his wife in which she made certain threats about doing physical harm to him. I suggested to him that she was simply venting her anger and there was nothing much in them.

He also said that he would be available to attend counselling and would let me have his available dates depending upon his commitments with the CCC.

406 In the trial before Brian Martin AJ, Mr Carr gave evidence of the recording that was played to him by Mr Rayney (Exhibit I page 430). In answer to questions from Brian Martin AJ, Mr Carr described Mr Rayney as having a very calm demeanour and behaving in a very appropriate manner at the meeting (Exhibit I page 441).

407 The Tribunal finds that it is reasonable to infer that Mr Rayney would have been aware that Mr Carr was taking notes of what Mr Rayney played to him. There is no suggestion that Mr Rayney endeavoured to conceal the CD of the first dictaphone recording and he would have been aware that there was a file note of the recording played to Mr Carr.

408 In those circumstances it is difficult to infer that Mr Rayney sought to dispose of the first dictaphone to conceal evidence when Mr Carr had heard at least one recording and was aware of the existence of the first dictaphone.

Were all of the recordings from the first dictaphone transferred to the CD?

409 There were nine recordings from the first dictaphone on the CD before Magistrate Flynn.

410 Mr Rayney's evidence before this Tribunal was that all recordings from the first dictaphone were transferred by him to a CD (Exhibit N at [738]). Mr Rayney's evidence before this Tribunal was that seven were recorded face to face and two were of a telephone conversation (T:209).

411 Mr Rayney's evidence before the Tribunal was that it was likely that to record the two telephone calls he held the dictaphone up to the phone as he was talking (T:214).

412 Mr Rayney's evidence before the Tribunal was that the nine recordings commenced in April 2007. Mr Rayney accepted the evidence he gave in the Magistrates Court that the recordings commenced in May­July 2007 was incorrect (T:207), Exhibit A page 1069).

413 Magistrate Flynn found that Mr Carr's file note dated 6 August 2007 described the content of a recording which did not correspond with the contents of any of the Category 1 files on the CD (i.e. the Rayney conversations) and that the CD did not contain a record of all the telephone conversations between Mr Rayney and his wife which he had recorded on the first dictaphone (AW at [76]), in particular, the recording that had been played to Mr Carr on 6 August 2007 (AW at [78]). The contents of Mr Carr's file note were not the subject of submissions before the Tribunal.

414 Before the Tribunal Mr Rayney denied that there were additional recordings between him and Mrs Rayney which were not transferred to the CD despite the Magistrate's finding to the contrary (T:214).

415 The Tribunal finds that Mr Rayney may have been mistaken in his evidence before the Tribunal and that the recording from the first dictaphone played to Mr Carr was not transferred to a CD.

When did Mr Rayney dispose of the first dictaphone?

416 Mr Rayney's evidence before the Tribunal was that he disposed of the first dictaphone on 6 or 7 August 2007, after he met with Mr Carr (T:312).

417 Mr Rayney's evidence before Magistrate Flynn was that he disposed of the first dictaphone because having transferred the contents to a CD he only wanted one copy of the recording and he had no use for it anymore (Exhibit A page 1071).

418 Mr Rayney accepted that the evidence he gave before the Tribunal is at odds with the evidence he gave in the Magistrates Court, in that his evidence before Magistrate Flynn was that he disposed of both dictaphones after 20 September 2007 (Exhibit A page 1078).

419 Mr Rayney signed two affidavits in the proceedings before Magistrate Flynn (2 February 2009 and 11 November 2009). Neither referred to the disposal of the dictaphones (Exhibit N at [766]). The disposal of the dictaphones was first raised in cross­examination of Mr Rayney in the Magistrates Court. Before this Tribunal, Mr Rayney gave evidence that the cross­examination in the Magistrates Court was the first time he had turned his mind to the disposal of the dictaphones (Exhibit N at [767]).

420 The Tribunal accepts Mr Rayney's evidence that he disposed of the first dictaphone on 6 or 7 August 2007 after he had transferred the recordings to a CD.

Did Mr Rayney dispose of the first dictaphone deliberately?

421 In relation to the first dictaphone, the Board submitted that:

1. the circumstances in which Mr Rayney says he disposed of the first dictaphone are themselves ­ on Mr Rayney's own evidence ­ extremely suspicious;
2. Mr Rayney says that he met with his solicitor Mr Carr on 6 August 2007 and played him a recording from the dictaphone;

1. he then disposed of that dictaphone by throwing it in the bin on either 6 or 7 August 2007, that is, between the day of his meeting with Mr Carr and the day that he learned that Mrs Rayney had gone missing (which was 8 August 2007) (T:205-207, T:228-229, T:311, T:313).

1. there is nothing suspicious in his explanation;
2. there had been discussions between the respective solicitors ­ Mr Carr for Mr Rayney and Ms Anderson for Mrs Rayney ­ of the appointment of a practitioner, Ms Catherine Doran, to act as a family law mediator (T:319);

1. prior to this, there had been an exchange of correspondence between the respective solicitors as to whether Mrs Rayney had been aggressive or rude towards Mr Rayney in front of the two children (T320);

1. this was plainly reflected in the correspondence (Exhibit A Vol 3, pages 1279 and 1288);
2. his purpose in playing a dictaphone recorded conversation to Mr Carr was to demonstrate to Mr Carr that Mrs Rayney's unequivocal denial that she had ever been rude or aggressive in front of the children was wrong.

423 The Board submitted that disposing of the first dictaphone on 6 and 7 August 2007 was suspicious in the light of the fact that Mrs Rayney went missing on 8 August 2007.

424 Had Mr Rayney disposed of the first dictaphone on 6 or 7 August 2007 and had Mrs Rayney not been murdered, there would have been nothing suspicious in Mr Rayney's conduct.

425 The unspoken premise of the Board's case is that the first dictaphone contained a recording of a conversation between Mr and Mrs Rayney that might have implicated him in his wife's murder. The Board moves from that premise to subscribing a motive for Mr Rayney disposing of the first dictaphone, that is, to delete evidence that may have implicated him in his wife's death. However, that itself proceeds from the premise that Mr Rayney was implicated in his wife's death. To make good that premise, the Board would have had to submit that Mr Rayney was implicated in his wife's death. The Board made no such submission and did not cross­examine Mr Rayney on that basis. Therefore the Tribunal rejects that premise of the Board's case in relation to the first dictaphone. The Tribunal does not find that there was anything suspicious in Mr Rayney's disposal of the first dictaphone.

426 Before the Tribunal could draw an inference that all of the recordings were deliberately not transferred it was incumbent on the Board to establish that the recordings were deliberately not transferred.

427 It is not sufficient to move from a finding that because all of the conversations recorded on the first dictaphone were not transferred to the CD that all of the recordings were not transferred intentionally.

428 The Tribunal notes that Mr Rayney was not cross­examined as to precisely how he transferred the contents of the first dictaphone to a CD. Mr Rayney gave evidence before the Tribunal that he required assistance from someone at Francis Burt Chambers to make the transfer. If there was a conversation or conversations that were not transferred by Mr Rayney, it is as likely to have been omitted by mistake as by design.

429 In order for the Board to establish that Mr Rayney had disposed of the first dictaphone deliberately so as to conceal the contents of the recordings, the Board would have to establish a basis for a finding that they were incriminating or potentially incriminating.

430 Mr Rayney's disposal of the first dictaphone is akin to disposing of handwritten notes after they have been typed up.

431 There is nothing adverse to Mr Rayney in Mr Carr's file note of the recording.

432 Magistrate Flynn characterised the recorded conversations between the Rayneys as prosaic (dull, common place) (at [377]). That description was not challenged on appeal (AW at [77]). Buss JA described the recordings as mundane (at [325]). No submission was made by either party that the Tribunal should listen to the recordings.

433 The Tribunal accepts Mr Rayney's explanation for his mistaken evidence before Magistrate Flynn as to the date of the disposal of the first dictaphone.

434 Given the mundane matters on the CD and Mr Carr's file note, it is difficult to see how the contents could have amounted to some form of incriminating, or potentially incriminating, evidence.

435 The Tribunal finds that at the time of the disposal of the first dictaphone, Mr Rayney had no reason to believe that anything recorded on the first dictaphone could ever be used in evidence, or that it would be material to a subsequent prosecution for wilful murder, or otherwise.

436 The Tribunal is not satisfied that there was anything suspicious, incriminating, or potentially incriminating, in the conversations recorded by Mr Rayney on the first dictaphone.

437 The Tribunal is not satisfied that Mr Rayney disposed of the first dictaphone with the intention of destroying evidence or perverting the course of justice.

438 Mr Rayney's evidence before the Tribunal was that as a result of events surrounding the search of the Rayney home in August 2007, he began to believe that the Police were not being entirely honest with him (Exhibit N at [256]).

439 Mr Rayney's evidence before the Tribunal was that he purchased a second dictaphone to record some of his telephone conversations with the Police. He did so because he was concerned with the conduct of the Police (Exhibit N at [810] and [858]).

440 Mr Rayney's evidence was that he recorded a series of telephone calls of his conversations with the Police with a hand held dictaphone held next to his mobile phone. Those recordings probably began in early September 2007 (T:215). Mr Rayney accepted that they were made without consent. He said that he did so because of his belief about the conduct of the Police (Exhibit N at [820]­[821]) and his belief that they were trying to implicate him in his wife's murder (Exhibit N at [840]).

441 Mr Rayney's evidence was that he believed that whether a recording of a telephone conversation was lawful depended on:

1. whether the person recording it was a part to it;
2. the manner in which it was done; or

1. whether the person making the recording had a lawful interest.

442 Mr Rayney said that he believed that he had a lawful interest in making a recording of his conversations with the Police.

443 Mr Rayney's evidence before this Tribunal is that the recordings of his phone conversations with the Police on the second dictaphone were transferred to a CD before 20 September 2007 (T:316).

444 Before this Tribunal, Mr Rayney's evidence was that the CDs seized by the Police in the execution of the search warrants on 20 September 2007 contained the originals of the recordings on the second dictaphone which he had copied to a CD (T:316-317).

445 Mr Rayney's evidence before this Tribunal was that his solicitors had given him a room from within their office from which he could work. He placed the second dictaphone in the room.

446 Mr Rayney's evidence before this Tribunal is that he had the second dictaphone on him at the time of the Police search of the Rayney home on 20 September 2007 (T:317).

447 Mr Rayney's evidence before this Tribunal was that after the execution of the search warrants on 20 September 2007, he placed the second dictaphone in his solicitors' office, and once he had confirmed that the CD was in the safe custody of the Court, subsequently retrieved the second dictaphone several days later, and then disposed of the dictaphone whilst making a claim for privilege over the discs seized by the Police (T:313­314, T:316-319; see also Exhibit A page 1083).

448 The Board submitted that when Mr Rayney disposed of the second dictaphone, he knew it was covered by the search warrants.

449 Mr Rayney's evidence before this Tribunal was that he did not read the search warrant at the time of the search on 20 September 2007 (Exhibit N at [871]). The Tribunal accepts Mr Rayney's evidence.

450 When Mr Rayney read the search warrant subsequently, he believed that it did not cover the second dictaphone (Exhibit N [872]). There does not appear to be any evidence as to when he read the search warrants in relation to the date when he disposed of the second dictaphone.

451 Copies of the warrants were produced to the Tribunal by Mr Rayney.

452 Mr Rayney submitted that the search warrant listed two Sony 256Mb digital dictaphones of a particular model number (Exhibit I, Tab 2, page 8). Mr Rayney submitted that the description of the dictaphones in the search warrant did not cover the dictaphone which Mr Rayney had in his pocket.

453 Mr Rayney's evidence before this Tribunal is that he did not dispose of the dictaphones to deprive the Police of the original recordings (Exhibit N at [876]). His evidence was that the conversations transferred to the CDs were no different to what was on the dictaphones (Exhibit N at [876]).

454 Mr Rayney's explanation before this Tribunal for disposing of the second dictaphone was that 'it had served the purpose for which I had it and I didn't need it anymore [to] record Police conversations ... I didn't need it for that purpose anymore, and secondly, I was not about to be recording conversations with Police or do anything to draw their attention to myself after that time' (T:318).

1. Item 6 of the search warrant included 'any other electronic storage media ...';
2. Mr Rayney knew that the dictaphone was covered by the search warrants which had been executed;

1. the dictaphone which Mr Rayney had in his pocket was a digital dictaphone with the original recordings on it;

1. the Court of Appeal has already held, relevantly, that when Mr Rayney deliberately threw out the dictaphone, and thereby destroyed the original recordings, he knew that the non­electronic and electronic records sought by the Police under the search warrants included dictaphones (Exhibit F at [41]­[44] and [381]);
2. and also that when he deliberately threw out the dictaphone he knew what conversations and other information were contained on it (Exhibit F at [217], [351], and [43]).

456 The Board submitted that it is significant that, on 20 September 2007 Mr Rayney had been named as the only suspect in Mrs Rayney's murder (T:315) and, accordingly, when he placed the second dictaphone in his solicitor's office, and then subsequently retrieved it and disposed of it, he knew he was a, indeed the only, suspect.

1. the circumstances in which Mr Rayney disposed of the second dictaphone after 20 September 2007 are inexplicable;
2. his explanation at T:316-319 was utterly implausible; and

1. if, as Mr Rayney says, the second dictaphone contained the originals of recordings of his telephone conversations with various police officers which he regarded as vital to his defence, it simply beggars belief that he ­ an extremely experienced criminal lawyer and prosecutor - would have just thrown it away (T:318-319).

1. there is no suggestion ever made by the Police that Mr Rayney perverted the course of justice or destroyed evidence;
2. necessarily, the Police would well know the contents of the second Dictaphone ­ they had their own recordings of the same conversations; and

1. the suggestion that only Mr Rayney would know the contents of the second dictaphone is factually incorrect.

1. it was not put to Mr Rayney before the Tribunal that he had not transferred all the recordings from the second dictaphone to the CD;
2. it was not put to Mr Rayney that he had the skill to edit out particular conversations; and

1. no member of the Police was called to give evidence that there were other conversations despite the fact that the Police were recording their conversations with Mr Rayney (Exhibit N at [539]; see also Exhibit I page 448 and recording between Mr Rayney and Amanda Blackburn made on 20 September 2007).

460 Mr Rayney would only have a motive to dispose of the second dictaphone if there was something on it that was incriminating or potentially incriminating. For the reasons stated in relation to the first dictaphone we are not satisfied that he had such a motive.

1. Mr Rayney transferred all of the content of the second dictaphone to the CD;
2. Mr Rayney retained the CD and did not attempt to conceal it;

1. the Police knew the content of their telephone conversations with Mr Rayney; and

1. there is no evidence that there was any incriminating, or potentially incriminating evidence on the second dictaphone.

462 For a legal practitioner to knowingly destroy evidence is a very serious matter which may well lead to the practitioner being regarded as not fit and proper to hold a practising certificate.

463 The Tribunal notes the findings of the Court of Appeal in respect of the second dictaphone, however, as stated in Sudath at [83]:

... 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. ...

464 Disposing of the second dictaphone invited suspicion particularly given the Police suspected Mr Rayney of involvement in his wife's murder. However, acting suspiciously is not of itself sufficient to provide a basis for a conclusion that Mr Rayney had breached s 132 or s 143 of the Criminal Code.

465 The Tribunal accepts Mr Rayney's evidence that he did not read the warrant on 20 September. In order for the Board to lay a basis for Mr Rayney disposing of the second dictaphone before he read the warrant it needed to establish that he disposed of the dictaphone with knowledge of the terms of the warrant. The Board failed to do so.

466 Had the Board been able to persuade the Tribunal that Mr Rayney knew the terms of the warrant before he disposed of the second dictaphone, the Board would also need to establish his state of mind as to whether the terms of the warrant covered the second dictaphone. The Board failed to do that also. Therefore the exact terms of the warrant are irrelevant.

467 Had it been necessary to make a finding as to whether the terms of the warrant covered the second dictaphone, the Tribunal finds that it is arguable that the terms did not for the reasons submitted by Mr Rayney.

468 Although Mr Rayney made a claim for legal privilege over the seized documents it was not necessary for the purposes of that claim that he was aware of the terms of the warrant.

469 Based on the evidence before it the Tribunal is not satisfied that Mr Rayney disposed of the second dictaphone with the intention of destroying evidence or perverting the course of justice.

470 The Board invited Mr Rayney to make written submissions to the Board as to why his practising certificate should not be cancelled.

471 There followed extensive submissions made on Mr Rayney's behalf and an exchange of correspondence with the Board. The Board had proposed to deal with the cancellation on 25 June 2015, but due to the large volume of materials provided, it deferred its consideration to 16 July 2015 (Exhibit A page 1877).

...

Secondly, in relation to the submissions provided to date, it is noted that for some matters there is an absence of explanation for the conduct the subject of the Board's Notice. In light of the seriousness of the allegations and findings, it is open to Mr Rayney to proffer an explanation and provide some evidence supporting any exculpatory explanation of his conduct. The Board wishes to draw to Mr Rayney's attention that the duty of candour which a practitioner owes the Board means that it is open to the Board in resolving a matter to take into account the failure of a practitioner to provide an explanation for conduct which otherwise may lead to an inference that he is not a fit and proper person to hold a practising certificate.

For example, at paragraphs 69 to 70 of the Written Representations in Response to Notice Pursuant to Section 56(2) there is reference to a strategic decision by Mr Rayney's Senior Counsel not to contest certain evidence. However, Mr Rayney has not offered any explanation for his conduct which would give the Board an evidentiary basis for reaching a conclusion as to whether the purpose of procuring the installation of a telephone conversation interception and recording device was a lawful purpose. In the absence of such an explanation the Board will be left to draw an inference from the circumstances known to it as to whether a legal practitioner could be reasonably regarded as acting properly in procuring the installation of a telephone conversation interception and recording device.

The Board would welcome any further evidence or materials which would assist it in its deliberations.

...

(Exhibit A pages 1877­1878)

473 Mr Rayney's solicitors replied on 29 June 2015 and stated:

1. I am concerned that you point out an absence of explanation for conduct the subject of the Board's notice in the Written Representations. Both Mr Rayney and I, together with senior counsel, considered we had addressed all matters;

You helpfully provide an example by reference to paragraph 69 and 70 of the written representations in response.

So that I can be sure to address all matters of concern to the Board, would you kindly let me know the other matters that the Board considers have not been directly addressed.

...

(Exhibit A page 1879)

...

In respect of point 2 in your letter, you make reference to the example at paragraphs 69 to 70 of the written representations dated 24 June 2015 and you request that the Board let you know the other matters that the Board considers have not been directly addressed in the written representations.

The matters upon which Mr Rayney may wish to provide an explanation and evidence to explain his conduct are identified in the notice pursuant to section 56(2) of the Legal Profession Act 2008 dated 2 June 2015 (Notice).

I reiterate the point made in my letter dated 26 June 2015 that Mr Rayney has a duty of candour in respect of all matters which were the subject of the findings in the relevant reasons and those matters raised in the Board's Notice,

...

(Exhibit A page 1882)

...

The matters stated in the preface to Mr Rayney's primary written submissions are repeated. If by reason of the complexity of the issues and their interrelationship, Mr Rayney has not addressed expressly any matter of concern to the Board, fairness in my respectful submission requires that it be specifically identified and Mr Rayney will address it. Each of the matters raised by the Board in its notice has been addressed by Mr Rayney. If specific issues arise in the context of those answers that need further clarification or explanation, please identify the same.

(Exhibit A pages 1885­1886)

476 The Board did not respond to this request from Mr Rayney's solicitors.

477 If the Board intended on pressing the lack of candour, the Board's minimum obligation was to respond to this request. The whole point of the Notice of Intention is to resolve issues.

478 The Board submitted that its SIFC filed in these proceedings set out in some detail the allegations concerning Mr Rayney's lack of candour in his responses to the Board (Board's SIFC at paragraphs 67-75).

479 The Board was able to articulate the alleged lack of candour in its SIFC. It should have responded to Mr Rayney in at least those terms before issuing the Notice of Cancellation in order to permit him to respond to the specifics of the Notice of Intention.

1. Mr Rayney's initial submission to the Board (Exhibit A, Vol 5, Tab 41) was glib and lacking in any form of explanation;
2. at paragraph 65 thereof, he said that he deeply appreciated and regretted 'carelessly disposing of the dictaphones';

1. but on his own evidence, his disposal of the dictaphone after the execution of the search warrants was deliberate, to put them beyond the reach of the authorities, not simply 'careless'.

481 The Tribunal does not accept that there was anything 'glib' in Mr Rayney's response.

482 Significantly there was no cross-examination of Mr Rayney as to any aspect of alleged lack of candour.

483 The Tribunal does not accept that Mr Rayney's evidence to this Tribunal has been deliberately false or that he lacked candour in his dealings with the Board.

Is Mr Rayney a fit and proper person to hold a local practising certificate?

484 As outlined at the beginning of these reasons, the onus is on the Board to establish that Mr Rayney is not a fit and proper person to hold a practising certificate and the Tribunal must feel an 'actual persuasion' of the occurrence or existence of the relevant facts.

485 Furthermore, as stated by Dixon J, as he then was, in Briginshaw, '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.

486 The Tribunal is mindful of the fact that the events cited by the Board (apart from the lack of candour issue in respect of which the Tribunal is not satisfied) were associated with the personal rather than the professional conduct of Mr Rayney nearly nine years ago, in specific isolated circumstances at a time which could only be described as deeply traumatic and stressful.

487 In addition, there is no doubt that prior to 2007 Mr Rayney was regarded as of impeccable character and entirely fit and proper to hold a practising certificate. The range of character references submitted in this matter suggest that many of his professional colleagues and associates continue to hold him in such high regard, and apart from the lack of candour issue, no criticism of his character was made since the events in 2007 despite, it must be said, the high level of public scrutiny Mr Rayney has been subjected to since that time.

488 The Tribunal has carefully considered the evidence before it to the Briginshaw standards and makes the following findings.

489 The Tribunal finds that although Mr Rayney engaged Mr Pearson to install the Device, he did not instruct Mr Pearson where to place the Device and, in particular, he did not instruct Mr Pearson to install the Device in the roof space of the Rayney home.

490 The Tribunal finds that Mr Rayney's purpose in having Mr Pearson install the Device in the Rayney home was to attempt to record the withdrawal of the insinuation rather than to record Mrs Rayney's private telephone conversations with third parties, without her knowledge or the knowledge of the other participants.

491 The Tribunal finds that the Device was installed on 25 July 2007 and the Sony Notetaker was removed on 26 July 2007. The Tribunal is not satisfied on the evidence before it that the Board's contentions that the Device was installed by Mr Pearson on 23 July 2007, was reinstalled in the roof space and that the CRU2 remained until it was removed on or about 5 August 2007, can be substantiated.

492 The Tribunal is not satisfied to the required standards and cannot find on the evidence before it that Mrs Rayney's private telephone calls were recorded.

493 The Tribunal cannot find on the evidence before it that Mr Rayney committed offences against s 7(1) of the Telecommunications (Interception and Access) Act 1979, and counselled or procured Mr Pearson to do so.

494 Neither can the Tribunal find on the evidence before it that Mr Rayney committed offences against s 5(1) and s 34 of the Surveillance Devices Act 1988 (WA), and counselled or procured Mr Pearson to do so.

495 The Tribunal is not satisfied on the evidence before it and does not find that Mr Rayney deliberately disposed of the dictaphones in circumstances that were an unlawful destruction of evidence contrary to s 132 of the Criminal Code and/or attempted to pervert the course of justice contrary to s 143 thereof.

496 The Tribunal is not satisfied that Mr Rayney showed a lack of candour in responding to the Board's show cause notice or that Mr Rayney failed to give a candid explanation of matters raised in the notice with respect to the installation of the listening device in the Rayney home.

497 In all the circumstances the Tribunal finds that Mr Rayney is a fit and proper person to hold a local practising certificate.

1. The Legal Practice Board of Western Australia's decision of 17 July 2015 to cancel the applicant's local practising certificate for the reason that they believed he was no longer a fit and proper person to hold a local practising certificate is set aside.
2. The Legal Practice Board of Western Australia is to issue the applicant with a local practising certificate based on the Tribunal's finding that the applicant is a fit and proper person to hold a local practising certificate.

I certify that this and the preceding [498] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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