Department of bad looks … Defamation judge in WA refuses to step aside from a trial in which she had previously worked for the plaintiff’s counsel … Non-disclosure of prior working relationship … Cherry picking … Theodora reports 

Defrocked barrister Lloyd Rayney is suing Mark Reynolds for defamation – with Martin Bennett from reputation repair shop Bennett & Co by the plaintiff’s side.

Reynolds is a forensic investigator who worked for the police on the Corryn Rayney murder case. At a Curtin University seminar in 2014 he said there was “no need for a cold case review” into Mrs Rayney’s death because “the offender was identified”. 

Lloyd Rayney says the comments carry meanings to the effect that he murdered his wife and got away with it. 

Rayney has been spending a lot of time in the courts. In 2012 he was found not guilty at his trial for the murder of Corryn. The verdict was upheld on appeal. 

He sued the WA police for defamation and in December 2017 was awarded $2.62 million by the WA Supreme Court. 

This arose from a press conference in 2007, where Detective Senior Sgt Jack Lee named Rayney as the “prime and only suspect” in the murder investigation of his wife. 

In 2020 he was stuck off after a finding by the State Administrative Tribunal that he secretly recorded his wife’s conversations. He also was found to have given false evidence in court about the recordings. 

Now he’s suing Reynolds over his remarks at Curtin University – eight years ago. Justice Jenni Hill heard the case without a jury. 

Hill was appointed to the WA Supremes in 2019 and the Rayney v Reynolds trial took place on July 21 and 22, 2020, and over two years later Hill has not yet delivered her judgment. 

After she reserved her findings, Reynolds discovered Justice Hill had been an employee and later a partner at Bennett’s law shop and that this was not disclosed to the court. 

In fact, she had been at Bennett and Co for 12-and-a-half years before joining Norton Rose Fulbright, Clifford Chance and then the Supremes. 

Reynolds applied on the ground of apprehended bias for Hill to recuse herself from completing her reasons – an application she rejected on September 21, 2022. 

The judge contended that it is disclosed on the WA Supreme Court website that she worked at Bennett & Co; that she left the firm 15 years before the trial commenced; that judges are required to do the work that is assigned to them; that there was no continuing connection between her and Bennett after she left the firm; and that a fair minded law observer would not think that her prior working relationship would prevent her deciding the case on its merits. 

“An assertion that a judge is or appears to be biased goes nowhere unless the connection between the events that give rise to the apprehension of bias and the possibility of departure from impartial decision making is articulated … 

I do not consider that the failure to disclose the prior working relationship deprived the defendant of any opportunity to advance arguments or submissions at trial. Accordingly, the failure to disclose the prior working relationship was of no legal consequence.” 

Ummmmm. This comes after the October 2021 decision in Charisteas v Charisteas where the High Court set aside the Full Family Court majority’s peculiar reasoning that extracurricular contact between a barrister and a judge during the course of litigation did not give rise to an apprehension of bias. 

Hill J said that the High Court decision in Charisteas “acknowledged that a continuing professional and personal connection between a trial judge and counsel is not a sufficient basis by and of itself on which to ground an application for recusal”. 

For justice to look anywhere half-decent, cosy connections should halt – temporarily – i.e. “the cessation of contact between a trial judge and counsel from the commencement of the trial until the publication of reasons and making of orders”. 

Last month the ALRC delivered its report on judicial impartiality – suggesting more rigorous standards than those Justice Hill applied to herself. 

The law reform commission said that the current procedure where a judge hears and determines the bias test “is not conducive to public perceptions of procedural fairness” and has a chilling effect on litigants’ confidence to bring disqualification applications. 

Grant Hammond, former judge of the NZCA, put it like this: 

“If we assume a visitation from an intergalactic jurist on a fact-finding mission around our galaxy, it is difficult to see how such a jurist would not feel bound to report this feature of recusal jurisprudence as being strange to the point of perversity.” 

While Hill may not have had direct contact with Bennett, he appeared as Rayney’s counsel at the trial and she has strong memories of the role he played as her mentor. 

He was mentioned positively eight times during her welcome to the Supreme Court, only 12 months before the defamation trial commenced. 

In a 2013 interview published by the National Library of Australia on its Trove website, Hill was glowing about Bennett and his assistance to her career. 

Reynolds is appealing Hill’s decision and has asked that she not deliver her judgment in the defamation case before the outcome of the appeal. The judge said she is now at an “advanced” state with the preparation of her reasons and orders. 

It’s one thing to wriggle around previous apprehended bias judgments, but it does seem the least the judge could have done was tell the defendant that she had worked for the man who represents the person suing him.