Lloyd Rayney has lost a bid to have the Supreme Court order the State to amend its defence against his multi-million-dollar defamation action in the wake of his acquittal of the murder of his estranged wife Corryn.
In a decision handed down this morning, Justice James Edelman noted there was a significant overlap between Justice Brian Martin’s decision to acquit Mr Rayney of the charges of wilful murder and manslaughter and issues arising in the defamation case.
Justice Edelman said given a pending application for leave to appeal against the acquittal and a potential appeal hearing, it was possible the State’s defence would have to again be amended after the conclusion of the criminal proceedings, including the potential appeal.
Mr Rayney launched the defamation proceedings in 2008, claiming police comments that he was the “prime” and “only” suspect in his wife’s murder had damaged his reputation and career as a barrister.
The action has been dormant since 2010 pending the outcome of the judge-alone criminal trial, which resulted in Mr Rayney’s acquittal on November 1.
After the acquittal, Mr Rayney indicated he wanted the defamation case to proceed and sought orders requiring the State to file an amended defence to his claim.
“It appears to be common ground that the State needs to amend its defence, perhaps substantially, as a consequence of the decision and reasons of the trial judge in the criminal proceedings,” Justice Edelman said in today’s judgment.
“But the State wants to wait for the conclusion of the criminal proceedings, including a pending application for leave to appeal and potential appeal, from the charges of which Mr Rayney was acquitted.
“Mr Rayney is entitled to the determination of his action without delay. But ordering the State to re-amend its defence now is unlikely to make any difference to the substantial progression of the action.
“Even if I ordered the State to file a re-amended defence, it may be that the defence would have to be further amended after the conclusion of the appellate process.”
Justice Edelman said issues in Mr Rayney’s criminal trial, including the substantial comment made by Justice Martin about the remarks of Detective Senior Sgt Jack Lee at a press conference where he identified the barrister as the “prime” and “only” suspect in the murder, overlapped with issues in the defamation proceedings.
He said it was possible that any or all of the evidence before Justice Martin and his reasons could be involved in the potential appeal.
The State would also face a detriment in preparing its amended defence because there would be perceived concerns about approaching prosecution witness in relation to the defamation case while the criminal appeal was on foot.Justice Edelman said while orders were not appropriate at this time, the State should not be inactive in preparing its case.