A forensic investigator who is being sued for defamation by former Perth barrister Lloyd Rayney has asked the Supreme Court judge who heard the case two years ago to take herself off the matter, because she once worked with Mr Rayney's lawyer.
Mark Reynolds is being sued over remarks he made at a seminar at Curtin University in 2014 that there was "no need for a cold case review" into the death of Corryn Rayney in 2007, because "the offender was identified".
Mrs Rayney's body was found in a deep grave in Kings Park in Perth's CBD, nine days after she disappeared following a boot scooting class in Bentley, 14 kilometres away.
Mr Rayney was charged with her murder three years later and, in 2012, after a judge alone trial, he was found not guilty — a verdict upheld on appeal.
Mr Rayney has always denied any involvement in his wife's death and in December 2017 he was awarded $2.62 million after a Supreme Court judge found he had been defamed by police.
In 2020, Mr Rayney was struck off as a lawyer after he was found by the State Administrative Tribunal to have secretly recorded his wife's conversations as their marriage broke down before her death in 2007.
Mr Rayney was also found by the Tribunal to have given false evidence about the recordings in a court.
The full Bench of the WA Supreme Court said the decision to strike him off "was essentially because of Mr Rayney's fundamental failure to adhere to his duties to the court to act honestly".
That decision was in April 2020, three months before another judge, Justice Jenni Hill presided over Mr Rayney's defamation case involving Mr Reynolds, who worked with the WA police during the investigation into Mrs Rayney's death.
Mr Rayney alleged the comments Mr Reynolds made at the public forum gave rise to the suggestion he had murdered his wife and got away with it.
Dr Reynolds is defending the defamation action and argued at the trial the comments did not suggest what Mr Rayney claimed they did.
Professional relationship between judge and barrister
Today, Dr Reynolds represented himself before Justice Hill, telling the court he believed he should have been told beforehand about the working relationship between herself and Mr Rayney's long standing barrister, Martin Bennett.
The court heard they had worked at the same law firm together until 2005, with Dr Reynolds pointing out that Justice Hill had started there when she was an article clerk before rising to the level of partner by the time she left.
"You can't argue (Mr Bennett) didn't have some influence on you … you would have been a young practitioner and thirsted for his knowledge," Dr Reynolds said.
Dr Reynolds said he had been teaching about bias "at an international level around the world" and one of the difficult aspects of what he did was explaining how, if you're human, you have bias and don't even know it was happening.
"There's a need to err on the side of caution, a need to demonstrate to the lay observer … which is me … that there is transparency in the system," he said.
"It's about the fair-minded obersrver hearing about the situation and saying that is fair."
Dr Reynolds said the lawyer who had represented him at the trial in 2020 had now retired, but in discussions he had now said that had he known "he would have approached the case differently".
In discussions with Dr Reynolds Justice Hill said it had been pointed out in the courts that it is the obligation of a trial judge to do the work they are assigned, describing it as "a critical point" of the justice system.
Mr Rayney opposes application for recusal
She said it was a question as to whether a relationship that ceased 15 years ago was sufficient enough for her to recuse herself.
Mr Rayney, through his lawyer Nilan Ekanayake, opposed the application, with Mr Ekanayake noting that the relationship between Her Honour and Mr Bennett ceased well before before the 2020 trial.
"There has been no personal or professional relationship for 15 years," Mr Ekanayake said.
He also suggested the application for Justice Hill to recuse herself may have been because Dr Reynolds failed in an application before her for the defamation case to be decided by a jury.
Justice Hill will deliver her decision later this week.
