Police deliberately misled accused murderer Lloyd Rayney during an investigation into his wife Corryn's death by encouraging him to talk in a secretly taped phone call with a "family liaison officer" who was also second in charge of the wilful murder inquiry, Justice Brian Martin said yesterday.
He ruled two taped phone calls inadmissible despite prosecution claims they showed Mr Rayney trying to deflect police and find out what they knew.
The Supreme Court was played the calls, in which Mr Rayney asked questions about the investigation into his estranged wife's death and queried the relevance of certain material, including the state of his marriage to the investigation.
In the calls, Det-Sgt Mark McKenzie claimed he was acting as a family liaison officer with his focus on the wellbeing of Mr Rayney, his two daughters and Mrs Rayney's father and sister.
Justice Martin said though he recognised it was easy in hindsight to criticise investigators who were "out in the field" and faced with a difficult, high-profile criminal case, there was a difference between silence and making false submissions to a suspect.
It was not appropriate to actively mislead or endeavour to mislead the accused about Det-Sgt McKenzie's role, he said.
The judge also queried the probative value of the alleged "admissions" and stressed the court was working from a presumption of innocence, not guilt.
In his ruling, Justice Martin said Mr Rayney was a criminal barrister who had worked as a prosecutor and would have been alert to the investigative techniques of police.
"I have no doubt the accused would have realised that in speaking with a police officer he ran the risk the police officer would record in some form what the accused was saying," he said.
The prosecution had argued that in the calls Mr Rayney tried to find out whether police had evidence his wife came home after a dance class on August 7, 2007.
Prosecutor John Agius said the calls also touched on Mr Rayney's bid to hide from police the "disastrous" state of his marriage.
Mr Agius said that to this end the barrister risked his career by giving "false testimony" in a separate case to bolster a "false claim" of legal professional privilege over recordings he "surreptitiously" made of conversations with his wife.