News & Current Affairs
Jubelin’s convictions show no one is above the law
You would be forgiven if you missed the news that disgraced former NSW detective, Gary Jubelin, was convicted of 4 charges of breaching the Surveillance Devices Act last week, what with the barrage of news about COVID-19 and George Pell’s acquittal stealing most of the limelight.
Jubelin became effectively a household name as the lead investigator into the disappearance of William Tyrrell. He had apparently made a name for himself with three decades of experience as a crack detective.
Jubelin’s unlawful conduct arose when he illegally recorded four discussions he had with a suspect in the Tyrrell case, Paul Savage. Savage was not aware the conversations were being recorded. Whilst warrants had allowed for Savage’s home, car and telephone to be bugged, they did not extend to the covert recording of conversations between he and Jubelin.
Jubelin maintained that his actions were ‘reasonably necessary for the protection of his lawful interests’, a limited defence provided for under the Surveillance Devices Act.
The presiding Magistrate, Ross Hudson, rejected those arguments. The Magistrate found that Jubelin’s offending “strikes across the heart, extent, nature and purpose of the Surveillance Devices Act”, noting that the illegal recording of the conversations could cause future Court proceedings to be thrown out and the “tentacles” of such conduct should be noted.
Despite requests from Jubelin’s defence barrister that no conviction be recorded, the Magistrate recorded convictions for each of the four offences and fined Jubelin the hefty total of $10,000.00.
Sadly, police acting unlawfully to gather evidence is all too common. Courts have and routinely use powers to exclude evidence obtained improperly and unlawfully. A dim view is taken of police attempting to cut corners in this way and often important evidence in serious cases is excluded causing entire prosecutions to collapse. I have personally been involved in many such cases where prosecutions for possessing drugs, firearms and child pornography have been thrown out because the police failed to obtain proper lawful authority to search premises or obtain evidence that was otherwise restricted.
Some police operate with a rationale that the ‘end justifies the means’. Some civilians would agree with that approach. Perhaps Jubelin was one of those. That approach to evidence gathering won’t get you very far in Australian jurisdictions, especially with eagle-eyed defence lawyers pouring over the evidence. Following the procedure for obtaining warrants to search premises, intercept telephone calls or record otherwise private conversations is important. A man’s home is his castle. Civil liberties like privacy are sacrosanct and should only be undermined in appropriate circumstances. Police have been granted invasive powers to search people’s homes, intercept their telephone calls and record interactions with suspects. But those powers are not unfettered, and they come with considerable responsibilities. There is a high threshold that must be met to justify that invasion of privacy and infringement of rights and rightly so. Whether that threshold has been met is a matter of determination of judges or senior police officers, removed from the investigation, who dispassionately asses whether granting warrants that allow such invasive policing is appropriate.
Whilst it is not uncommon for Courts to exclude evidence that is improperly or unlawfully obtained, it is rare for the police to be pursued and charged when they act unlawfully. Jubelin’s case is one such rarity.
Gary Jubelin’s actions in the Tyrrell investigation ultimately cost him his career and left a dark cloud over his reputation. Other law enforcement officials should reflect on his actions and the consequences before running the risk of cutting corners and acting unlawfully.