Spedding v State of New South Wales [2022] NSWSC 482

Supreme Court New South Wales

Medium Neutral Citation: Spedding v State of New South Wales [2022] NSWSC 482 Hearing dates: 21 April 2022 Date of orders: 21 April 2022 Decision date: 21 April 2022 Jurisdiction: Common Law Before: Harrison J Decision: (1) On the defendant's application I grant leave pursuant to UCPR 31.4(6) to the defendant to rely upon the statement of Gary Jubelin recently served upon the plaintiff. (2) I order that the costs of this application, including today's hearing, be paid by the defendant. (3) I grant liberty to the parties to apply on short notice relating to any matter in anticipation of the hearing, should they be so advised. Catchwords: CIVIL PROCEDURE – notice of motion by defendant seeking leave pursuant to UCPR 31.4(6) to rely on witness statement – whether late service of witness statement is prejudicial to the plaintiff – leave granted Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 31.4(6) Category: Procedural rulings Parties: William Harrie Spedding (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: A Canceri (Plaintiff) A Williams (Defendant)

Solicitors: O'Brien Criminal and Civil Solicitors (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2019/00289937 Publication restriction: Nil

ex tempore Judgment 1. HIS HONOUR: By statement of claim originally filed in 2019, William Spedding sues the State of New South Wales on a series of causes of action, including malicious prosecution. In circumstances that have gained public notoriety, Mr Spedding was some years ago arrested and charged with what I will describe as historical sex offences in the shadow of a suspicion that he may have had something to do with the disappearance of William Tyrrell in Kendall at around the same time. 2. The claim maintained by Mr Spedding relies upon the proposition, among others, that his arrest in those circumstances was a collateral attack upon him in order to expose, or to assist the police in their investigation of, him as a then possible suspect in that disappearance. It is at the heart of Mr Spedding's claim that his arrest and prosecution were ill-founded, commenced and maintained for an improper and collateral purpose, and that they were by definition malicious. 3. As is also well known, then Detective Inspector Gary Jubelin was involved in and ultimately became the Officer in Charge of the investigation into the disappearance of Master Tyrrell. It is part of Mr Spedding's case detailed in statements upon which he proposes to rely, that his dealings with Mr Jubelin were such as to demonstrate the absence of any reasonable or probable cause to commence the criminal proceedings against him and bespeak a malicious intent on his part. 4. In circumstances to which it is presently unnecessary to refer, following the events that are at the heart of these proceedings, Mr Jubelin left the New South Wales Police Force. Although it might have been anticipated that he would always have been a potential witness to be called by the State of New South Wales, it appears that, possibly by reason of the fact that he left the service, he became or remained unwilling or unable to provide a statement in support of the State of New South Wales' response to Mr Spedding's case. 5. The evidence before me on this application demonstrates that, at least by April 2021, the State of New South Wales considered that it may wish to call Mr Jubelin. In the events that have occurred, despite orders for the service of evidence, a draft statement by Mr Jubelin was ultimately not provided to Mr Spedding or his lawyers until some few days ago. 6. The current application by the State of New South Wales is that notwithstanding the rules of court and directions that I had previously made for the exchange of statements, it be permitted to rely upon Mr Jubelin's statement in the proceedings. Mr Spedding's response to that application in the first instance is to oppose it for the reason that it fails to accord with the orders I made for the exchange of statements but, more particularly, that it carries with it both presumptive and actual prejudice if the State is permitted to do so at this late stage. 7. Mr Canceri of counsel who appears for Mr Spedding, has identified matters referred to in paragraphs 15 and following of Ms Rauf's affidavit, highlighting the prejudice that is said will arise in the circumstances. In response to that, Mr Williams of counsel who appears for the State of New South Wales, suggests that at least a significant number of the matters identified as being potentially prejudicial do not necessarily arise from Mr Jubelin's statement and are in fact matters that Mr Williams suggests might have been ones to which attention would have been given in the course of the plaintiff's conduct and preparation of this case in any event. 8. I accept that arguments propounded by each side on that issue are both logical and cogent and contradictory one of the other. I raised in the course of argument with counsel what I consider to be a particularly important practical issue confronting me as the trial judge in the resolution ultimately of Mr Spedding's claim in these proceedings being a proper assessment of Mr Jubelin's role. It seems to be uncontroversial that Mr Jubelin was, to resort to the vernacular, a major player in the events that give rise to these proceedings and, indeed, a major source of activity upon which Mr Spedding relies as demonstrating malice on the part of the State of New South Wales. 9. By way of an example I referred in argument, but by no means exclusively, to the fact that when arrested at his home by Mr Jubelin, the media were present in abundance. Mr Spedding will maintain, as I understand it, that they had been notified by someone on behalf of the police, presumably Mr Jubelin, that this arrest was to occur in the context of a high profile investigation into the disappearance of Master Tyrrell and that the situation was orchestrated in order at least to embarrass Mr Spedding on the one hand, or to cause him serious harm on the other. 10. Presumably in due course in accordance with the draft statement provided, Mr Jubelin would wish to deny that he or the police under his command notified media outlets that this was to occur. It would be difficult for me, in the absence of his response to Mr Spedding's claim to that effect, to adjudicate upon the truth or otherwise of the assertion. 11. A second example consists in Mr Spedding's anticipated contention that during the course of a series of interactions or interviews with Mr Jubelin, he was referred to pejoratively as "Mr Washing Machine Man" and associated comments to a similar effect upon which Mr Spedding will rely to contend that Mr Jubelin effectively had it in for him and that his arrest and ultimate prosecution on the historical sexual assault matters was inspired or energised by Mr Jubelin's role as the lead investigator in relation to the William Tyrrell disappearance. 12. I appreciate without having had the benefit of hearing either sides' evidence on those or similar issues, that my characterisation of the parties' positions may, to some extent, be less than a perfect encapsulation of their respective cases but it will, I think, serve to demonstrate the proposition I wish to elucidate. That is to say, it would be slightly artificial for these proceedings to take place if the State were not permitted to call Mr Jubelin to give evidence, having regard to the role that both parties will undoubtedly wish to say he has played in them. If only from a somewhat selfish judicial perspective, it seems to me that that position is ultimately inevitable. It remains to be seen whether the State decides ultimately to call Mr Jubelin as a witness. 13. That raises the question, however, of whether or not the prejudice identified by Mr Spedding per medium of Ms Rauf's affidavit can be met by appropriate orders. In a generic sense I hasten to say that Mr Spedding should not in the particular circumstances suffer any unfair prejudice that arises from the late service of the statement upon which the State of New South Wales intends to rely. 14. I will therefore reserve for later consideration the question of how or in what fashion that anticipated prejudice may possibly play out in the course of the proceedings. I wish to make it clear, however - and without consulting him, I perceive Mr Williams not to oppose the proposition - that I would not lightly reject an appropriate application for some form of concession by Mr Spedding to ameliorate any prejudice he identifies in the course of the proceedings, should an application about that ultimately be made. 15. In the same context I also wish to indicate that although these proceedings were only commenced in 2019, and by comparison to some matters in this list are relatively youthful, three years is a not inconsiderable time for Mr Spedding, and indeed the State of New South Wales, to remain in a state of uncertainty about the ultimate outcome. That is even more so having regard, for better or worse, to public interest in this matter. 16. I raise those considerations in the context that the proceedings are listed to commence before me for hearing on 26 April and except in extraordinary circumstances I would not wish to delay them commencing on that day, or to lose any or many of the days set aside for the hearing. 17. In the circumstances it seems to me that the following order should be made: 1. On the defendant's application I grant leave pursuant to UCPR 31.4(6) to the defendant to rely upon the statement of Gary Jubelin recently served upon the plaintiff. 2. I order that the costs of this application, including today's hearing, be paid by the defendant. 3. I grant liberty to the parties to apply on short notice relating to any matter in anticipation of the hearing, should they be so advised.