Cleared barrister Lloyd Rayney could face a retrial on allegations he murdered his wife Corryn Rayney after the prosecution today lodged an appeal in the high-profile case hours before the deadline.
Mr Rayney was acquitted of wilful murder and the alternative offence of manslaughter this month following a three-month judge-alone trial.
The trial cost WA taxpayers millions of dollars because an interstate judge and prosecution team had to be used as a result of Mr Rayney and his wife's senior roles in Perth's legal fraternity.
In Justice Brian Martin's verdict, he noted that while there had been strong suspicion raised by the evidence, the prosecution had unsurmountable gaps in their case filled by speculation.
A spokeswoman from the NSW Office of Director of Public Prosecutions today issued a statement confirming they had lodged and appeal in the circumstantial case.
The application cites the following grounds of appeal:
"The trial judge erred in law in failing to apply the principles enunciated in R v Hillier (2007) 228 CLR 618 in relation to the assessment of circumstantial evidence in that his Honour assessed the circumstances in a piecemeal and sequential manner and failed to consider the circumstances as a whole.
"The trial judge erred in law in finding that the fact that the deceased was attacked at, or in the near vicinity of her house, did not alone establish guilt, for the nature of the circumstantial case was that no fact alone established guilt.
"The trial judge erred in law in concluding that the finding of the respondent’s dinner place card near the burial site did not prove guilt for the significance of that fact was not assessed together with the other circumstances, in particular, it was not assessed together with the accepted fact that the deceased had been attacked at or near her home."
The deadline had been 4pm today WST.Mr Rayney's lawyer, Laura Willox-Timpano, said her client's legal team was not troubled by the "suprising" appeal move.
"It is surprising that the prosecution have chosen to appeal the acquittal," she said. "Appeals against an acquittal are rarely made. We are not troubled by the grounds of appeal."
"Whether the prosecution will even be given leave to appeal is a matter for the court," she said.
Unlike in jury trials, Justice Martin had to detail the reasons for his verdict of not guilty, providing more scope for the State to look for grounds of appeal in his 369 page judgment. Juries do not need to publish their reasons for a verdict.
The prosecution must now convince the Court of Appeal in an initial hearing to grant them leave to proceed with an appeal. A successful appeal could see a retrial in the case.
If an appeal goes ahead, it could also see Mr Rayney's defamation proceedings and a separate case against him alleging he breached telecommunications laws by bugging his home phone both postponed.
In his verdict, Justice Martin had criticised certain police actions in the investigation as well as Mr Rayney's credibility.
Mrs Rayney went missing after an evening dance class on August 7, 2007, and was later found buried in Kings Park.
Mr Rayney has always maintained his innocence regarding her death while the prosecution alleged he had killed her to prevent her carrying out threats to ruin his reputation and legal career as they headed towards divorce.Justice Martin found that the evidence could not rule out Mrs Rayney, a Supreme Court registrar, had been the victim of an attack, possibly a sexual assault bid, carried out by an unknown party.