Western Australian Police Commissioner Karl O’Callaghan has announced a new investigation into the death of Corryn Rayney. He will be calling on interstate and overseas investigators and forensic experts to complete the cold case inquiry.
Ms Rayney’s estranged husband Lloyd Rayney, a Perth barrister, was acquitted of the murder of the Supreme Court registrar and mother of two following a judge-alone trial in November 2012. The Crown appealed the acquittal to the WA Court of Appeal, which dismissed the appeal in September 2013. Section 24(2)(e) of the Criminal Appeals Act 2004 (WA) allows the Crown to appeal an acquittal where the trial was by judge alone.
Rayney was cleared of phone-tapping charges last week after a District Court Judge discharged the jury, finding that the Crown evidence was “incapable of sustaining verdicts of guilty”. The allegation was that Rayney installed phone-bugging equipment to tape Ms Rayney’s phone calls amidst an acrimonious divorce in 2007. Ms Rayney’s body was found in a shallow grave in Perth’s Kings Park in August 2007.
At the conclusion of those criminal proceedings, Rayney called for a cold case investigation into his estranged wife’s death so that the real killer might be identified.
At the time of Ms Rayney’s death, police announced that Lloyd Rayney was the only suspect for the murder.
Can Rayney be retried for his wife’s murder?
The WA Parliament introduced amendments to the WA Criminal Appeals Act 2004 in May 2012 which had the effect of enabling the Crown to retry persons for serious crimes for which they have been acquitted, thereby offending the principle of “double jeopardy”. The provisions, contained under Pt 5A of that Act, only apply to crimes punishable by 14 years’ imprisonment or more. Murder would clearly fall into this category, with a maximum penalty of life imprisonment. An investigation into an “acquitted accused” can only be undertaken with a relevant police officer’s approval, then the Court of Appeal must approve the laying of a new charge. One of the grounds is whether “fresh and compelling” exists: “fresh” if it has emerged since the time when the trial prosecutor could have used it and “compelling” if it is “highly probative” of the charge. Further, it must be in the “interests of justice” that a new charge be laid.
The result of this legislation is that if there is fresh and compelling evidence which arises which is highly probative that Rayney killed his wife, it could result in fresh murder proceedings. This could be an objective of the investigation, especially if the police still believe that Rayney was responsible, or, relatedly, the purpose could be to demonstrate that the police have exhausted all other leads.
If there is evidence that Rayney is responsible, we are unlikely to hear of it until the case has finalised – s 46L of the Criminal Appeals Act 2004 reverses the principle of open justice, and requires the identity of those subject to both investigations and charges to be kept under wraps until the conclusion of any possible proceedings, or unless a Judge makes an order permitting disclosure, having regard to the interests of justice.
The position in NSW
NSW introduced similar laws in Pt 8 Div 2 of the Crimes (Appeal and Review) Act 2001 in 2006. The meaning of “fresh and compelling evidence” is slightly different, with “compelling” meaning “reliable … substantial, and … highly probative” (s 102(3) Crimes (Appeal and Review) Act 2001). This means the Court of Criminal Appeal is required to assess the reliability of a witness providing evidence at the time that it decides whether a new charge may be laid, rather than delaying the assessment of the reliability of the evidence to the trial stage. Another difference is that the WA legislation only permits one more roll of the dice for the laying of a charge on fresh and compelling evidence grounds (s 46E(2)). There is no such limitation in the NSW legislation, which paved the way for a three separate trials against Philip Leung, who was accused of the 2006 murder of his partner. The first trial for murder resolved by way of a directed verdict for acquittal, the second for manslaughter by way of another directed verdict, the third for manslaughter by way of a verdict of guilty by a jury trial, which was successfully appealed by Leung to the Court of Criminal Appeal last year.
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