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The case of Lloyd Rayney: A defining moment for Australian defamation law

Lloyd Rayney's defamation case has opened the doors to significant possible developments in Australian common law. Mr Rayney brought an action in defamation against the State of Western Australia, alleging he was defamed by a detective when named as the "prime and only" suspect in his wife's murder.

Manager of Shine Lawyers' Professional Negligence practice Peter Coggins discusses the ramifications Rayney's case will have on defamation law in Australia - as it appears on Perth Now.

The high-profile defamation case currently being pursued by Lloyd Rayney against the State of Western Australia raises the possibility for two major points of legal development:

  1. How will the law of defamation impact police comments relating to those suspected of a crime during the investigation stage
  2. If successful, will Mr Rayney's action represent a new era for defamation law in Australia because of the considerable damages awarded

The events

Sadly, the background to Mr Rayney's defamation is all too well-known. In August 2007, Mr Rayney's wife Corryn went missing. Her body was found some days later buried in Perth's Kings Park. Mr Rayney was charged with his wife's murder. However, he was acquitted at trial. In 2013, the State appealed the acquittal but was unsuccessful.

In 2008, on the sideline to the murder investigation, Mr Rayney initiated a defamation claim against the State. The defamation action has not been able to progress until now due to a number of pending matters that might have had a bearing on the outcome (including an action by WA's Legal Professional Complaints Committee concerning Mr Rayney's eligibility to practice law in WA).

The defamation trial has now commenced in earnest and has gained significant public attention.

The defamation case

Mr Rayney alleges that statements made by Detective Senior Sergeant Jack Lee at a press conference in September 2007 labelling him as the "prime" and "only" suspect in his wife's murder were defamatory. They implied he was guilty of the crime and greatly injured his credit, character and reputation.

To defeat the claim, the State must show the comments of Detective Lee were justified, meaning they were true in substance and in fact. To establish this defence, the defendant must prove two things:

  1. The plaintiff was suspected by the police, with reasonable cause, of having committed the offence
  2. The conduct of the plaintiff gave rise to police suspicions

The police must prove these matters on the balance of probabilities. This is a lower standard than would apply in any criminal trial of the allegations. This requirement can give rise to the peculiar scenario where the defendant will lead and re-ventilate evidence going to the conduct of the plaintiff which gave rise to their suspicions, such as lies to the police or concerns relating to the whereabouts of the plaintiff at the time of the crime.

In the State's defence, they are expected to show the police suspicions were grounded on no less than 33 circumstances and 27 specific acts by Mr Rayney. The overbearing concern for the State will be that although the statements made by Detective Lee were during the investigation stage, Mr Rayney was later charged and acquitted both at trial and on appeal. A reasonable level of doubt arguably then pervades the police's initial suspicions at the time of the press conference.

Rayney's defamation trial will not be the first time Detective Lee's comments during the press conference will undergo judicial scrutiny. During Rayney's murder trial, WA Supreme Court Justice Brian Martin ruled Detective Lee's comments during the conference were "gravely in error" and were compounded by a "lack of judgment" in allowing the media to ask questions that perhaps he didn't have the answers to.

The damages

The other significant aspect of this trial arises from the damages Mr Rayney will be awarded if his action succeeds. In Australian defamation law, awards for damages are normally an award for general damages, compensating the plaintiff for their losses of a non-economic nature. Damages for non-economic loss are capped within a statutory range of approximately $350,000 - $400,000.

What distinguishes Mr Rayney's case is his intention to claim a significant sum for economic losses, which he is yet to disclose. It is expected he will calculate his claim with reference to the number of years he has not been able to earn his annual salary. At the time the tragic event occurred, this was around $500,000 per annum.

In Australia, where defamation awards rarely exceed the range of $100,000 - $200,000, any decision awarding Mr Rayney damages along the lines of his alleged lost earnings over a nine to ten-year period could be a watershed moment in this area of law.

Written by Shine Lawyers. Last modified: October 16, 2019.

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