Recording conversation without consent

Former NSW detective Gary Jubelin found guilty of unlawful conduct while leading an investigation into William Tyrell’s disappearance

Gary Jubelin, a former NSW police detective chief inspector, was found guilty of illegally recording conversations during the investigation into the disappearance of missing toddler William Tyrell. William went missing from his grandmother’s backyard in September 2014. After a large search failed to show any trace of William, it was believed that the boy was abducted. Jubelin was also fined $10,000 for four counts of recording a person without permission.

During the investigation, Jubelin visited the home of Paul Savage, who was a person of interest in the case. He recorded two conversations – one in May 2018 and one in December 2018. Mr Savage had no knowledge of the recording. Jubelin also instructed another officer to record the conversation from his phone.

Jubelin explained that he made the recordings to protect his lawful interests in case Mr Savage harmed himself or made any allegations against Jubelin in the future.

Magistrate Hudson stated that the strategy of pursuing Mr Savage was approved by Jubelin’s superiors, but the illegal recording was not. He also pointed out that was no evidence linking him to William’s disappearance and Jubelin still proceeded to record the conversation without Mr Savage’s knowledge. Magistrate Hudson also noted that even though Jubelin had informed other officers that he had recorded the conversations, it did not make his wrongdoings “right”.

The law

In New South Wales, it is an offence under section 7 of the Surveillance Devices Act (2007) (“the Act”) to knowingly install, use, cause or to maintain a listening device to:

  • Overhear, record, monitor or listen to a private conversation to which the person is not a party, or
  • Record a private conversation to which the person is a party

A listening device includes any device that is capable of being used to overhear, monitor, listen to or record a conversation. These can include devices such as mobile phones and voice recorders.

Section 11 of the Act also provides that it is an offence to publish, or communicate to any person:

  • a private conversation, or
  • a record of the carrying on of an activity, or
  • a report of a private conversation

that has come from the person’s knowledge as a direct or indirect result of using a listening or optical surveillance device or tracking device.

Jubelin’s case has also led many citizens to question whether police officers have permission to use surveillance devices to record conversations or video footage. The circumstances of Jubelin’s case did not provide for the recording of a conversation, even though he maintained his actions were backed by operational needs and his own lawful interests.

Law enforcement officers are only allowed to use surveillance devices without consent if:

  • The device is a body-worn video device. The officer needs to inform the other party of the device and the device should be visible.
  • They possess an authorised warrant, or the situation is so serious that the circumstances makes it impractical to obtain a warrant
  • There is an imminent threat of serious personal violence or substantial property damage

A breach of the Act can lead to criminal charges. You can be fined or receive up to 5 years of imprisonment if there is a serious breach of the Act.

The above information is intended as general information and is not intended to be relied on as legal advice.

Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales. If your matter is at Blacktown Local Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

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