RAYNEY and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2016] WASAT 7 (10 February 2016)

State Administrative Tribunal (WA)|2016-02-10|Before: Justice J

The applicant was charged with and acquitted of the murder of his wife. He was also charged and acquitted of an offence under the Telecommunications (Interception and Access) Act 1979 (Cth). While the resolution of the charges was pending, the applicant was issued a local practising certificate on his undertaking not to practise. When the applicant applied to resume practice, the Board cancelled his local practising certificate. The applicant applied to the Tribunal for a review of the Board's decision to cancel his local practising certificate.

The Tribunal found that the applicant was a fit and proper person to hold a local practising certificate.

AW v Rayney [2010] WASCA 161

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

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

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:

between Mr and Mrs Rayney using the handheld dictaphone; and
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

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)).
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.

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.

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

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.
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.
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.
The Tribunal will be invited to infer that a number of Mrs Rayney's private telephone calls were recorded.
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.
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.
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

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.
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

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:

although his previous attempts to obtain a recording of the confirmation he wanted from Mrs Rayney had been futile,
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),

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),

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.

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);
he would have to sit by his home phone (T:263); and

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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (675 paragraphs)

Legislation Cited (8)

Cases Cited (12)

RAYNEY and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2016] WASAT 7 (10 February 2016)