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Barrister acquitted of murdering wife loses argument to have judge disqualified
A barrister and former Crown prosecutor who was accused of murdering his wife, failed to sue the state successfully for defamation and was struck from the roll of practitioners has now lost a bid to have a judge disqualified from hearing an appeal.
Naomi Neilson
Western Australian Supreme Court judge Justice Edwin Michael Corby has refused to recuse himself from hearing the appeal of Lloyd Rayney who had attempted to dismiss him over fears that he was biased. Mr Rayney was struck from the roll of practitioners, acquitted over the murder of his wife and lost a defamation hearing in the last 10 years.
Mr Rayney claimed damages for economic loss and lost income caused by DSS Lee’s statements on his practice as a barrister and for general and aggravated damages to compensate for his lost personal and business reputation as a result.
In 2017, the state was ordered to pay Mr Rayney $846,180.82 in damages for his non-economic loss and $1,77,235 for his economic loss, both with interest. However, within the next few years, the decisions were overturned and courts found that it was a series of events that led to his reputation ruin and was not solely the result of DSS Lee.
After his attempted appeal, the State Administrative Tribunal ruled that Mr Rayney had engaged in professional misconduct and he lacked the “honesty and candour” required of a legal practitioner. The findings concerned conduct that had occurred prior to 2007, and the defamatory comments, so it ruled out his argument against DSS Lee.
In the current appeal, Mr Rayney argued that Justice Corby would be unfit as he “made adverse findings” against him and had expressed clear views about either the question of fact that is a live and significant issue in the appeal or about the credit of Mr Rayney.
Mr Rayney also submitted that Justice Corby’s findings, as a member of the full bench, meant that it was relied heavily on by the state as evidence in support of the dismissal of the appeal. He also argued that it would be “inappropriate and give rise” to the issue of bias in a lay observer if a judge hearing the appeal had made serious, prior findings.
“I am satisfied that there’s no proper basis upon which a hypothetical lay observer who knows or is aware of the objective circumstance of the appeal…could then reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolutions of the questions to be decided in the appeal,” Justice Corby explained in his decisions.
He continued by saying that Mr Rayney’s submissions misconceived the court function in determining the appeal from the misconduct decision and the penalty decision, and the role and powers of the full bench in considering removing his name from the roll.
“Further, I have not previously considered or expressed any views about Mr Rayney’s financial circumstances or his capacity to earn income as a barrister in the periods that are relevant to the appeal (or at all) or about any other matter stated in his affidavit,” Justice Corby said.
“I have not made any finding about Mr Rayney’s credit. I have reviewed, on appeal, all findings made by SAT about Mr Rayney’s professional conduct and honesty within the disciplinary appeal decision and I have acted on and given effect to those findings with the strike-off decision. However, I have not acted as the trier of facts in either of those matters nor have I acted as the trier of fact in any proceeding involving Mr Rayney.”
The matter continues.
Read the full matter on AusLII: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2020] WASCA 209 (2 December 2020)
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
