Spedding v State of New South Wales

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.

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:

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.

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:

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.

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.

Section 64 of the Evidence Act is in these terms:

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.

The extracts will be marked as Exhibit B in these proceedings.