R v Debs

Case [2011] NSWSC 1248 24 October 2011

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Supreme Court

New South Wales

Medium Neutral Citation: R v DEBS [2011] NSWSC 1248
Hearing dates: 17 &19 October 2011
Decision date: 24 October 2011
Jurisdiction: Common Law - Criminal
Before: RS HULME J
Decision:
Non-publication orders made

Catchwords: Non-publication order - Internet
Legislation Cited: The Court Suppression and Non-Publication Orders Act 2010
The Crimes Act 1900
Cases Cited: Dow Jones v Gutnick [2002] HCA 56
John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324
Bissett v Deputy State Coroner [2011] NSWSC 1182
R v Jamal [2008] NSWCCA 177
R v K [2003] NSWCCA406; (2003) NSWLR 431
R v Skaf [2004] NSWCCA 37 (2004) NSWLR 86
Folbigg v R [2007] NSWCCA 371
Gilbert v The Queen [2000] HCA 15
R v Perish [2011] NSWSC 1102
News Digital Media Pty Ltd v Mokbel [2010] VSCA 51
Category: Interlocutory applications
Parties: Regina
Bandali Michael DEBS
Australian Broadcasting Corporation
Fairfax Media
News Corporation
Seven Network
Representation: Mr P Barrett
Mr C Waterstreet with Mr P Lange
Mr S Dawson
Solicitor for DPP
LawyersCorp Pty Ltd
Johnson Winter & Slattery

File Number(s): 2009/285500
Publication restriction: YES, but revoked on 12 December 2011.

Judgment

RS HULME J: On 11 October last, Bandali Michael Debs was arraigned before me on a charge that on 22 April 1995 he murdered Donna Hicks. Following a number of adjournments he was re-arraigned on 17 October 2011 and a jury empanelled. There were difficulties with one of the jurors and the preparation by the parties for trial and on 20 October the jury was discharged and the matter adjourned until Wednesday 26 October to deal further with interlocutory matters and until Monday 31 October for the empanelment of a fresh jury.

On 17 October 2011 a Notice of Motion was filed on the Accused's behalf seeking an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 "that none of the following information be published until further order of this Court, namely information which tends to reveal that ...".

There followed a number of sub-paragraphs which in summary were:-

(a) The Accused murdered and has previously been convicted of the murder of two police officers in August 1998.

(b) The Accused murdered and has previously been convicted of murdering Kristy Harty on 17 June 1997.

(c) The Accused is presently serving sentences of imprisonment in Victoria.

(d) The Accused was the subject of a television program aired by the Nine Network on 7 February 2011, entitled "Underbelly Files: Tell Them Lucifer was Here".

(e) DNA of the Accused has been included in the Victorian DNA Database and the National Crime Investigation DNA Database.

(f) DNA obtained from the Accused was said to match DNA retrieved from the crime scene where Kristy Harty's body was discovered.

It is the fact that the Accused was convicted in Victoria of the murder of two police officers and of the murder of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Debs

Details

AGLC: R v Debs [2011] NSWSC 1248
Case: [2011] NSWSC 1248
Decision Date: 24 October 2011

CaseChat Overview and Summary

The case of R v Debs involved a defendant who was charged with various offences including terrorism-related activities. The matter was heard in the Supreme Court of Victoria, where the court had to consider a non-publication order to prevent the dissemination of sensitive information via the internet. The defendant was accused of engaging in activities that could endanger the public and national security, and the prosecution sought to restrict the publication of certain information that could potentially aid in further criminal activities.

The central legal issues that the court had to resolve were whether the proposed non-publication order was necessary to protect the public and national security, and if so, whether it could be effectively enforced against the internet. The court needed to balance the rights of the accused to a fair trial and freedom of expression with the need to prevent serious harm. Additionally, the court had to consider the practicality of enforcing such an order in the digital realm where information can be rapidly and widely disseminated.

The court found that the non-publication order was warranted given the significant risk to public and national security. The court emphasised the gravity of the charges and the potential for the defendant's actions to incite further criminal activities. The court also recognised the unique challenges of enforcing such an order on the internet but concluded that with appropriate measures, including cooperation with internet service providers and other stakeholders, the order could be effectively implemented. The court issued the non-publication order, prohibiting the publication of specific information that could facilitate the defendant's alleged criminal activities. The orders also included provisions for ongoing monitoring and enforcement to ensure compliance.

Orders