By Andrew L. Urban
The WA police defamed an innocent man by publicly naming him soon after starting their investigation as the only suspect in his wife’s murder. He was eventually (three years later) charged, tried and acquitted. Twice. He has now sued the State – and won. The killer is still at large. That’s what comes from pursuing a conviction instead of searching for the truth.
It is rare that a defamation case shines so strongly and tellingly on the infamous police investigation failures generated by what is known as ‘tunnel vision’. The clarity of the examination of tunnel vision in this case is the valuable by-product of the successful defamation action brought by Lloyd Rayney against the WA Government, which concluded in December 2017 with damages of over $2.6 million awarded to Rayney, who had been arrested for the murder of his wife, Corryn.
As Bill Rowlings, CEO of Civil Liberties Australia reported in his January bulletin, “The officer in charge of the investigation, run by the Major Crime Squad of the WA Police, was Detective Senior Sergeant Jack Lee. In a media conference a month after the body’s finding – on 20 September 2007 – DSS Lee named Rayney the prime and only suspect. Police eventually charged Rayney with murder on 8 December 2010, more than three years after publicly naming him as ‘the’ suspect.
“Rayney was acquitted in a four-month, judge-only trial in Perth in 2012. Former NT Supreme Court Chief Justice Brian Ross Martin was ‘imported’ for the trial, because most judges and members of the legal profession in Perth knew both the Rayneys personally.
“When the State (that is, effectively WA Police and the Director of Public Prosecutions) appealed the acquittal, three other imported judges in September 2013 rejected the state’s appeal and confirmed Rayney’s innocence.
“For the legal profession, the courts and the police in WA, the case has involved a decade of uncertainty and embarrassment. For the people, it has appeared to be a made-for-TV soapie, with punters taking sides according to their prejudices after sometimes slanted media reports rather than through any deep understanding of facts, laws or evidence.”
Meanwhile, Corynn Rayney’s actual killer or killers remain at large.
In a detailed judgement that should be compulsory reading for all police, Justice John Chaney systematically deconstructs every incidence of bias known as tunnel vision, that the investigating police believed to be useful evidence. The value of this document lies in the detail with which each of the pieces of information is unwrapped by Justice Chaney, showing how the police wrapping was totally faulty.
Lloyd Rayney, a successful barrister whose practice included defending police officers, was in the midst of separating from his wife, which complicated the bizarre mystery surrounding her death. Her murder remains unsolved. At first glance, the pending separation also provided the police with the possibility of a motive – which they too eagerly but carelessly embraced, in the investigation they christened Operation Dargan.
Chaney J: I am satisfied that at least some of the principal members of Operation Dargan formed a prejudicial view of Mr Rayney very early in the investigation or in DSS Lee’s case, by the end of August 2007. While it was obviously appropriate for police to thoroughly investigate whether Mr Rayney had any involvement in Mrs Rayney’s death, I am satisfied that by the end of August the police involved in the investigation construed events and information that they learned with a suspicious bias rather than objectively. That conclusion most clearly emerged from the evidence of DSC Williams, DSS Lee, and DS Correia. Each of those witnesses was at pains to construe every snippet of information they had as pointing to Mr Rayney’s involvement with his wife’s murder. Many of the matters that they relied upon as pointing to Mr Rayney’s guilt were at best equivocal, simply not probative of anything or inconsistent with any cogent case theory. To understand that conclusion, it is necessary to examine the matters which they contended supported their suspicion of Mr Rayney’s guilt.
And that is exactly what Cheney J does, in over 300 pages.
Chaney J: In the course of cross-examination, DSS Lee said, on a number of occasions, that he had ‘over 50 different pieces of information including physical evidence observation and inferences that he used to form his belief that Mr Rayney was a suspect’.
But none of those 50 different pieces of information survived Chaney’s scrutiny; indeed, the 50 included repetitions and nonsensical inclusions, such as counting as six pieces of information that six people had been eliminated from the list of suspects. Chaney J scoffed: “The logic of that contention escapes me. If they had eliminated one hundred people from their enquiries, would that be one hundred pieces of information pointing to Mr Rayney’s involvement?”
The sixth matter relied upon by DSS Lee was that Mr Rayney was at home on the night Mrs Rayney disappeared. That is not a matter in dispute and, of itself, is entirely equivocal.
The seventh matter described by DSS Lee was that the statements of Julie Porter and Michael Halls established that Mrs Rayney ‘was due to have a confrontation with Mr Rayney in which she intended to tell him to leave the Rayney home’. All of the evidence, including that of Mr Rayney, points to the fact that Mr and Mrs Rayney had agreed to meet at the Rayney residence when she returned from boot scooting in order to discuss arrangements in relation to their separation.
The characterisation of that meeting as a ‘confrontation’ and the suggestion that the statements of Ms Porter and Mr Halls suggested that Mrs Rayney ‘intended to tell him to leave the Rayney home’ is again indicative of the bias with which DSS Lee viewed the evidence and information available. The expression ‘confrontation’ is inconsistent with the defendant’s pleading that Mr and Mrs
Rayney were scheduled to meet and that Mrs Rayney was looking forward to the meeting.
The twelfth point was that it was a cold night on 7 August and was raining so DSS Lee would expect that Mrs Rayney would wear a coat. This is, of course, no more than speculation to support DSS Lee’s acceptance of the evidence of the two boot scooter witnesses who said that Mrs Rayney was wearing a coat.
To say that it is a separate piece of information or inference pointing to the involvement of Mr Rayney in Mrs Rayney’s death illustrates DSS Lee’s tendency to strain to find matters prejudicial to Mr Rayney. It is noteworthy that, when seeking to enumerate DSS Lee’s 50 pieces of information, counsel for the plaintiff passed over the reference to the weather in DSS Lee’s statement of evidence, but DSS Lee was quick to include the point as one of his 50.
DSS Lee’s thirteenth point was that Mrs Rayney wore tight denim jeans to boot scooting, and he was aware from a briefing by DSC Casilli that when Mrs Rayney’s body was located the jeans were unzipped and the zip was broken. DSS Lee agreed that when Mrs Rayney’s body was exhumed, her belt buckle was
undone, the two buttons at the top of the jeans were undone, the jeans were unzipped in a manner indicating the zip had broken and teeth were missing from the zip. This was said by DSS Lee to comprise evidence that Mrs Rayney made it inside the home before she was assaulted because the missing teeth from the zip were not located in the driveway.
DSS Lee explained the logic of that approach as follows:
My belief from the evidence I’ve already given was that she died at the house, that she ended up on the driveway and those zipper teeth were not in the driveway. Therefore, I believed, along with other evidence, that she actually went inside the house.
His theory was later explained as being that Mrs Rayney returned from boot scooting, went inside the Rayney residence, and began to undress to the extent of removing her boots and undoing her belt and the zipper of her jeans, and at that time she was assaulted. That is, of course, entirely conjecture, and how the theory fits with the zipper being opened with sufficient force to dislodge teeth, which were never located in the house, is unclear.
DSS Lee’s conclusion that, because no zipper teeth were found on the driveway, Mrs Rayney must have made it inside the house simply defies logic. No zipper teeth were found in the house either (or indeed were ever found anywhere).
One possibility that would explain why the zipper teeth were never located inside or outside the house is that Mrs Rayney did not return at all to (the house) after boot scooting on 7 August 2007. DSS Lee did not appear to give any consideration to that possibility.
(ED: Nor did DSS Lee consider the possibility that the zipper teeth may have broken at some earlier, unrelated time… and somewhere else. There was no evidence as to when they broke.)
DSS Lee’s fourteenth point was that he was aware from information provided during a briefing by DSC Williams that boots were found in the rear of her car, and he was aware from reviewing the evidence of the boot scooters that Mrs Rayney wore boots to boot scooting. He said that his fifteenth point was that he formed the view that ‘because it was raining that night – why would Corryn take her boots off unless she made it home?’ How those two points are said to be separate matters implicating Mr Rayney is by no means clear. The single point would appear to overlap with DSS Lee’s theory that Mrs Rayney began to undress upon her arrival home. It is difficult to reconcile that theory with the presence of scratch marks on the boots which other witnesses described as supporting the theory that she had been dragged across the driveway bricks in her boots. On DSS Lee’s speculative theory Mrs Rayney would have to have removed her boots in order to undress, been subjected to an assault after which her boots were put back on before she was dragged across the brick driveway, and then had the boots removed again once she was placed in the car. To describe that scenario as unlikely would be an understatement. (Emphasis added)
DSS Lee identified as his twentieth point an observation that, in his opinion, the changes to Mrs Rayney’s clothing were more consistent with her arriving home and commencing to change into more comfortable clothes, although he acknowledged that the marks on her boots indicating that she may have been dragged along the ground were not consistent with that theory.
It is not, therefore, a separate point, but rather a repetition of points thirteen, fourteen and fifteen and an acknowledgement of the inconsistency of different points upon which he relied. DSS Lee’s willingness to suggest that, notwithstanding its apparent inconsistency with other points, that part of his evidence comprised a separate piece of information implicating Mr Rayney demonstrates his eagerness to grasp at any point to endeavour to show that his reference to the 50 points of information was not an exaggeration.
His thirty-sixth point was that the evidence did not support Mrs Rayney having been the subject of a planned attack given that she had no wounds associated with a knife, firearms or a blunt instrument attack or any application of a ligature. This is a reaffirmation that DSS Lee did not believe that Mrs Rayney’s murder was premeditated. Sarah Rayney’s evidence was that she did not hear her mother return home, and thus did not hear any argument between her parents. DSS Lee’s theory does not contain any explanation as to what may have happened to cause Mr Rayney to suddenly kill his wife with his bare hands in circumstances where neither she nor he showed any signs of a struggle.
Reading Justice Chaney’s reasons and judgement it is impossible to avoid concluding that – a) tunnel vision is a significant impairment to solving serious crimes; b) tunnel vision clearly depresses or negates rational thinking; c) the police officers involved in this investigation displayed a lack of high level intelligence or common sense.