Supreme Court New South Wales Medium Neutral Citation: Spedding v State of New South Wales [2022] NSWSC 504 Hearing dates: 27 April 2022 Date of orders: 28 April 2022 Decision date: 28 April 2022 Jurisdiction: Common Law Before: Harrison J Decision: Grant leave to Mr Spedding to tender the representations made by Mr Jubelin in his book I Catch Killers. Catchwords: EVIDENCE – representations – whether admissible Legislation Cited: Evidence Act 1995 (NSW), s 64 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 9, 9A, 9B Cases Cited: Spedding v State of New South Wales [2022] NSWSC 482 Category: Procedural rulings Parties: William Harrie Spedding (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: A Canceri with T O'Rourke (Plaintiff) A Williams with B Searson (Defendant) Solicitors: O'Brien Criminal and Civil Solicitors (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2019/00289937 Publication restriction: Nil Judgment 1. HIS HONOUR: Former Detective Inspector Gary Jubelin wrote a book published in 2020 entitled I Catch Killers. One chapter of the book is dedicated to the investigation into the disappearance of William Tyrell and to Mr Jubelin's role as the officer in charge of that investigation. That chapter refers to the arrest of Mr Spedding on unrelated child sexual assault allegations for which Mr Spedding was tried in the District Court in 2018 and acquitted. Mr Spedding is now suing the State of New South Wales for damages arising out of the conclusion of those criminal charges favourably to him upon the basis that he was prosecuted without reasonable or probable cause and maliciously. 2. In aid of the proposition that his prosecution was malicious, Mr Spedding seeks to tender the following portions of Mr Jubelin's book that refer to him: "Afterwards, Bill is put through a six-hour interview, but isn't charged. When I get back to Sydney, the word is that they found nothing during the searches, but Bill's weird. He's got a strange, nasal voice and a sly way of answering your questions. You can't form a connection with him. But he denies having anything to do with William's disappearance. … As a cop, I wouldn't be doing my job if I did not also try to take advantage of the extra pressure this will put on Bill by seeing if I can gather evidence to rule him in or out of any role in William's disappearance. Bill is silent during the drive to Port Macquarie Police Station. Once we arrive, a custody sergeant reads him his rights, his fingerprints are taken and he is shown into a jail [sic] cell ahead of tomorrow's court hearing. Anyone would find this frightening. If he is hiding something, maybe this will be enough to crack him open. Maybe it will be enough to make Margaret think about him differently. In the evening, after Bill has been interviewed about the sexual assault allegations, which he denies, I speak to him about William. He must be feeling that the ground beneath his feet is now much more uncertain and I want him to know that we are waiting, should he stumble. A thin man, Bill looks back at me coldly. He denies having anything to do with William's disappearance. Late into the night, the light from the strike force's room in the police station shines amid the darkness. Inside that room, I am working, still trying to find a missing three-year-old. Beneath it, in the cells, Bill must know his life has changed for ever. … While Bill is in the cell, I go back at him again. We launch a covert operation, the details of which are kept within our strike force and the bosses who authorise it. It seems to work. Bill continues to insist he was nowhere near Benaroon Drive when William went missing. That's it, I think. He didn't do it. On 8 June, I update the strike force's investigation plan, to say that, accepting on the balance of probabilities, Bill was not involved in William's abduction and we need to refocus our investigation. I know Bill's reputation and his business have been ruined, the three kids who lived with him and Margaret have been taken away, and Margaret herself has suffered greatly. I must have made her doubt her husband. But this is a murder investigation. Justice is what matters here, not injury. I needed to be certain. Yes, getting here was painful, but as the person leading the investigation, I had to weigh up the cost of charging Bill against the cost of doing nothing and found the scales did not balance. The cost of doing nothing was heavier. All that's left is for the child sexual assault charges to play out in court." 1. Mr Canceri of counsel, who appears with Ms O'Rourke of counsel for Mr Spedding, submits that this material is admissible as evidence of Mr Jubelin's state of mind at the time of the events that he describes. The material is not tendered upon the basis that it is an admission: cf. s 87 of the Evidence Act 1995. 2. There is no issue in these proceedings that the State of New South Wales is vicariously liable for the acts of Mr Jubelin. Part 4 of the Law Reform (Vicarious Liability) Act 1983 provides relevantly as follows: 9 When torts committed by police officers In this Part, a tort is committed, or allegedly committed, by a police officer if the tort is committed, or allegedly committed, by a person who was a police officer at the time of the tort or alleged tort (whether or not acting in a personal or official capacity). 9A Part extends to former police officers A reference in this Part to a claim against a police officer in respect of a tort or alleged tort includes a reference to a claim against a person who was a police officer at the time of the tort or alleged tort, but who has ceased to be a police officer since that time. 9B How can police tort claims be made? (1) A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person. (2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown. (3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort. (4) … [Emphasis in (3) added] 1. As will be apparent, by reason of s 9B(3), Mr Spedding is precluded from joining Mr Jubelin as a party to the proceedings by reason of the pleaded acceptance by the State of New South Wales that it is vicariously liable for Mr Jubelin's alleged tort. The State of New South Wales does not contend, for the purposes of the present application, that the passages upon which Mr Spedding proposes to rely do not or cannot support the inference for which Mr Spedding contends. That issue remains live and one to be determined in due course if the material is admitted. 2. Mr Williams of counsel, who appears with Mr Searson of counsel for the State, has indicated that Mr Jubelin will be called by him as a witness in the proceedings. The late service of Mr Jubelin's statement is the subject of my judgment published last week: see Spedding v State of New South Wales [2022] NSWSC 482. 3. Section 64 of the Evidence Act is in these terms: 64 Exception—civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to— (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation— if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by— (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. [Emphasis added] 1. Despite a faint suggestion that the representations in the book could not confidently be attributed to Mr Jubelin as the book appears to have been ghost-written, that proposition is no longer pressed: the representations in question are expressed in the first person and it is clear from the context that they were made by Mr Jubelin. Mr Jubelin is, as I have indicated, to be called to give evidence. The hearsay rule does not therefore apply to the representations in his book. I would in the circumstances grant Mr Spedding leave to tender the extracts from Mr Jubelin's book now, in accordance with s 64(4), even before Mr Jubelin's foreshadowed examination in chief has concluded. 2. The extracts will be marked as Exhibit B in these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2022