Acquitting former senior detective Gary Jubelin of unlawfully taping a person of interest in the William Tyrrell investigation could entitle every police officer to bypass the law around listening devices, a court has heard.
Jubelin, a former NSW Police detective chief inspector, is appealing his convictions after being found guilty in April of illegally recording four conversations with Kendall man Paul Savage in 2017 and 2018.
Mr Savage, an elderly resident of the NSW mid north coast street where then-three-year-old William went missing in September 2014, had been a person of interest at the time.
No one has been charged over William’s disappearance. Mr Savage denies any involvement.
Jubelin argues the law explicitly permitted him to covertly record a conversation he was in if it’s “reasonably necessary for the protection of (his) lawful interests”.
But John Bowers, representing the Crown, said the recordings were all made “for operational reasons” and as part of the ongoing investigation.
“He made them with intention of gathering evidence,” Mr Bowers told Sydney’s Downing Centre District Court on Thursday.
“In those circumstances, there’s no room for him to rely on the defence that he had to make them because it was reasonably necessary to protect his personal lawful interests.”
Were Judge Antony Townsden against the Crown on the personal lawful interests issue, the consequences would “entitle potentially every police officer to claim an interest, thereby justifying the avoidance to comply with the provisions” of the Surveillance Devices Act, Mr Bowers said.
“That’s clearly not the intention of the act,” he said.
“It’s an act to control and facilitate – by strict regime – that kind of investigative activity.”
Jubelin’s barrister said the intent of the law was to protect privacy.
At the time of the first three recordings, Mr Savage’s privacy had already been abrogated by the NSW Supreme Court’s issuing of warrants that allowed police to install listening devices in his home, Margaret Cunneen SC said.
“This was already not a private conversation because it could be listened to by any authorised officer,” she said on Thursday.
“The privacy had already been stripped away.”
The fourth tape made in December 2018 when the warrants had expired came when Mr Savage invited Jubelin to his home.
Ms Cunneen said a police officer could reasonably covertly record to protect his personal interests.
A court had previously ruled a person may record a conversation where they perceive a risk of later being called a liar or accused of fabricating conversations.
“Perhaps it is a greater interest for a police officer to prove he’s not fabricating conversations,” she said.
Jubelin’s appeal is also made on the grounds the magistrate made improper findings regarding detectives’ pursuit of Mr Savage and the magistrate’s failure to direct himself about Jubelin’s prior good character
Even if the judge upheld the guilty verdicts, Ms Cunneen contended the convictions and Jubelin’s $10,000 fine should be set aside.
The former officer was a man of great integrity and prior good character whose offending would be at the “very low edge” of criminality, she said.
But Mr Bowers said recording no conviction would be inappropriate for offending at least in the mid-range of its type and conducted by a police officer.
Jubelin was supported in court by family, including his sister, and former deputy police commissioner Nick Kaldas.
He declined to comment outside court.
Judge Townsden will deliver his decision on September 18.