Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
On Appeal Contracts Expression
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The Supreme Court of Western Australia awarded Lloyd Rayney $2.6 million in damages in a defamation action against the State of Western Australia for comments made by senior police officer, DSS Lee, during a packed media conference following the discovery of Rayney’s wife’s body. Rayney was accused and subsequently acquitted of murdering his wife. The Court reasoned that an ordinary reasonable person reading between the lines of DSS Lee’s comments would come to the conclusion that Rayney had murdered his wife which did not follow logically from the information the police had at the time and that, although there was a public interest in the matter, the defense of qualified privilege did not apply because it does not extend to the public receiving defamatory information. Mr. Rayney has since appealed the amount of the damages awarded, requesting more.
In August 2007, Corryn Rayney was found murdered in Kings Park, Perth. Detective Senior Sergeant Jack Lee (“DSS Lee”) held a number of press conferences where he discussed the ongoing police investigation. On September 20, 2007, DSS Lee stated at one such press conference, that the police department believed that Corryn Rayney’s husband, Lloyd, was responsible for her death, stating that he was the “only suspect at this time” and that “he is the primary person of interest.” In 2010, DSS Lee repeated that Rayney was the only and primary suspect and subsequently charged Rayney with murder. In 2012, J. Brian Martin found in favor of Rayney and acquitted him of all charges. The state attempted to appeal the verdict, but the appeal was dismissed.
Rayney filed suit claiming that DSS Lee’s statements on September 20, 2007, construed in the context of words spoken by him at three previous press conferences conveyed the defamatory imputation that he had killed Corryn or acted in such a way as to give rise to a reasonable suspicion that he had. Prior to the public accusations, Rayney had successfully practiced as a barrister and operated in various government agencies. He claimed that the public accusations harmed his legal practice by damaging his reputation and caused him substantial financial loss. In his action, he sought monetary damages for the harm he claimed stemmed from DSS Lee’s statement. Under the 1892 Police Act, the State of Western Australia can be held liable for Lee’s actions.
J. Chaney of the Supreme Court of Western Australia found in favor of Lloyd Rayney. In reaching his decision, J. Chaney examined the transcripts of the press conference on September 20, 2007, and attempted to assign meaning to the words. J. Chaney divided his analysis into three sections. Firstly, whether the statements made should stand alone or in relation to statements made at previous press conferences. Secondly, the extent of the context on the effect of the language. Thirdly, whether qualified privilege could be used as a defense. He noted that the case was highly publicized, that hundreds of articles had been published about it, and that Channel 9 news had stated it was “the biggest story at the time.” In August 2007, Channel 7 had penned a letter to the police commissioner asking if “Lloyd Rayney was a suspect now?” By the time the September 20, 2007 conference was held, the media interest had intensified and there was considerable public speculation about the identity of Corryn Rayney’s killer.
J. Chaney quickly dismissed Rayney’s suggestion that the “dramatic” location of the September 20 press conference at the investigating officers’ base served to provide, add emphasis to or change the meaning of DSS Lee’s words. However, he did acknowledge however that the dramatic developments in the investigation including the search of the Rayney residency and Lloyd Rayney being brought in for questioning contributed to the larger media presence and crowd at the September 20 press conference. The Plaintiff had also asserted that the presence of the same journalists at all the press conferences was relevant and it was only proper that the meaning of the words used by DSS Lee in the September conference 2007 should be considered in the context of his earlier press statements. J. Chaney did not deny that the press conferences were connected, but considered that the earlier statements were made in relation to new information in the case of an ongoing investigation whereas the press conference of September 20 was given at a time when there were new developments in the investigation. Accordingly, J. Chaney concluded that the words used by DSS Lee on September 20 should stand-alone and be treated as a separate publication.
J. Chaney then attempted to find the meaning of the words. Rayney attempted to argue that words conveyed guilt or improper conduct, while the State argued that language implied suspicion or alternatively was truthful. J. Chaney stated that the understanding of an “ordinary reasonable person” was the appropriate test to determine the meaning of the words and that it is the “general impression” of such person that is to be taken into consideration. There are three, non-exhaustive, possible defamatory meanings of words during police investigations (1) the individual is guilty, (2) there are reasonable grounds to suspect guilt, or (3) there are grounds to investigate guilt. Furthermore, the meaning of the word “suspect” is very much connected to the surrounding circumstances. However, a statement that an individual is arrested and charged does not create an imputation of guilt.
After reviewing the press conference recording, J. Chaney found that an ordinary reasonable person, reading between the lines, would come to the conclusion that Rayney had killed his wife Corryn. J. Chaney justifies his conclusion by focusing on the specific language of the press conference, for example, the language used by DSS Lee in respect of the investigators’ new belief that Corryn Rayney was murdered in her residence, which, J. Chaney said gave the impression that the police had substantial forensic evidence and that they knew the exact location of the murder when they didn’t. He said that the police, by stating with such alleged certainty that they knew the location was at the residence, implicated Rayney. Furthermore, J. Chaney said that DSS Lee’s answers to certain questions gave the distinct impression that the police knew ‘the exact area’ where the offence occurred, thus heightening the suggestion that the offence occurred at the Rayney residence and the strength of the suspicion of Mr. Rayney whereas if had simply answered ‘no’, without more, this would not only have been accurate but would not have implied that the police had more information than they, in fact, had that might have implicated Rayney. J. Chaney also notes that Lee’s statements regarding interactions between Rayney and the police upon serving a warrant implied guilt, for example, he said that Rayney had not answered the door and they had had to make a forced entry when it was later determined that Rayney was on the phone at this time, a fact that was not presented at the press conference. Failing to report that fact implied guilt, said J. Chaney.
The Judge also criticized Lee for calling Rayney a suspect prior to an official arrest and even went so far as to suggest ways in which DSS Lee should have answered so as to avoid implying guilt. He criticizes Lee for stating that the police had no information when he knew they had no evidence and for not stating that there was a possibility that Rayney could be excluded as a suspect in the future. J. Chaney continued to pick apart the language used by Lee at the press conference and found that Lee’s statements implied Lloyd Rayney was guilty of the murder of his wife, Corryn.
Finally, J, Chaney turned to the defense of qualified privilege under the Defamation Act, which allows the Court to find privilege if a reasonable person would act in a similar way given the circumstances. The Act is broad and enables the Court to take into account issues of public interest, the seriousness of the matter, and any other circumstances which it deems relevant. While J. Chaney acknowledged both a media interest and in turn a public interest in the matter, he stated that qualified privilege does not extend to the media or the public receiving defamatory information. He said that Lee went beyond giving information that would have been necessary to the public’s interest and by doing so surrendered any such privileges. J. Chaney considered the reasonableness standard and determined that, because DSS Lee’s statements did not follow logically from the information the police had at the time, his statements were neither reasonable nor protected under the Defamation Act. J. Chaney also found no common law privilege existed as DSS Lee’s statements “went beyond anything required to discharge any duty of the police to keep the public informed.”
Lloyd Rayney was awarded approximately $1.25 million for his lost income, as well as $600,000 in “special damages” for the “personal hurt and distress” he suffered and the damage to his “personal and business reputation”. He had originally requested approximately $11 million and is appealing the awarded amount. Rayney’s lawyer told the ABC that his client had lodged an appeal because he wanted the payment to include his losses from when the comments were made until the verdict in his defamation trial, some 10 years.
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